Judge Melvin D. Sandvig, Case 21CHCV00790 2022-10-10 Tentative Ruling

Judge: Melvin D. Sandvig, Case: 21CHCV00790, Date: 2022-10-10 Tentative Ruling

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Case Number: 21CHCV00790 Hearing Date: October 10, 2022 Dept: F47

Dept. F-47

Date: 10/10/22

Case #21CHCV00790 (related to 21CHCV00579 and 21CHCV00657)

MOTION FOR ATTORNEYS’ FEES

Motion filed on 6/17/22.

MOVING PARTY: Plaintiff KB Salt Lake III, LLC

RESPONDING PARTY: Defendant Fitness International, LLC

NOTICE: ok

RELIEF REQUESTED: An order awarding Plaintiff KB Salt Lake III, LLC attorneys’ fees and expenses in the amount of $185,335.50, which includes the fees for making this motion.

RULING: The motion is granted.

This is a commercial unlawful detainer action which arose from a lengthy dispute between KB Salt Lake III, LLC (Plaintiff) and Fitness International, LLC (Defendant) due to Defendant’s failure to pay rent to Plaintiff from April 2020 through the present. Plaintiff is the owner of the property located at 9119 De Soto Avenue, Chatsworth, California, 91311. Defendant, an international gym operator, entered into a lease with Plaintiff to build and operate a new fitness center on the premises commencing on November 28, 2016 and expiring on December 31, 2027. When the COVID-19 pandemic struck shortly after Defendant had demolished Plaintiff’s property to commence construction of a new gym, Defendant claimed it was excused from paying rent and constructing a gym facility on Plaintiff’s property.

However, Defendant refused to give up possession and control of Plaintiff’s property, and Plaintiff’s efforts to resolve the rent and construction disputes were unsuccessful. Therefore, on 10/7/21, Plaintiff filed this unlawful detainer action for nonpayment of rent. In response, Defendant raised issues relating to the force majeure clause of the lease, interpretation and application of the various terms and conditions in the Lease, application of Civil Code 1511, and application of common law doctrines of commercial frustration, impracticability and impossibility. After extensive discovery, Plaintiff prevailed on summary judgment. On 4/18/22, the Court entered a judgment for restitution of the premises and possession, forfeiture of the lease, and for $368,389.75 in past rent and rental damages.

On 6/17/22, Plaintiff filed the instant motion seeking an order awarding Plaintiff attorneys’ fees and expenses in the amount of $185,335.50, which includes the fees for making this motion. Defendant has opposed the motion on the sole ground that the attorney fee request is excessive and based on duplicative work. (See Opposition, generally). In other words, Defendant does not dispute that Plaintiff is the prevailing party in an action based on a contract which contains the following attorney fee provision:

22.7 ATTORNEYS’ FEES. In the event either party shall institute any action or proceeding against the other party relating to this Lease, the unsuccessful party in such action or proceeding shall reimburse the successful party for its disbursements incurred in connection therewith and for its reasonable attorneys’ fees…In addition to the foregoing award of attorneys’ fees to the successful party, the successful party in any lawsuit on this Lease shall be entitled to its attorneys’ fees incurred in any post-judgment proceedings to collect or enforce the judgment. This provision is separate and severable and shall survive the merger of this Lease into any judgment on the Lease.

(See Lombardi Decl. ¶¶2-3, Ex.1 ¶22.7; CCP 1033.5(a)(10); Civil Code 1717).

As the prevailing party in this unlawful detainer action based on the Lease which contains the above broad attorneys’ fees provision, Plaintiff is entitled to recover its reasonable attorneys’ fees which shall be fixed by the Court. CCP 1033.5(a)(10); Civil Code 1717(a).

The Court finds that the $185,335.50 requested by Plaintiff is reasonable and not based on duplicative work. In determining whether the amount requested is reasonable, the Court considered the “lodestar” method of calculation (number of hours reasonable expended multiplied by the reasonable hourly rate), which is presumably reasonable. See PLCM Group, Inc. (2000) 22 C4th 1084, 1095-1097. Additionally, the Court considered the nature of the litigation, its difficulty, the amount involved, the skill required in its handling, the skill employed, the attention given, and the success achieved. See Cruz (2007) 155 CA4th 1270, 1274-1275.

Defendant does not challenge the reasonableness of the $525 hourly rate charged by Plaintiff’s counsel and the Court finds the rate to be reasonable based on attorney Lombardi’s experience. (See Lombardi Decl. ¶29).

In determining whether the amount of time expended was reasonable, the Court recognizes that this unlawful detainer action involved novel issues based on the pandemic and whether COVID-19 related government closures excused Defendant from paying rent or constructing the leased premises. Specifically, Defendant put the meaning of the Lease’s force majeure provision in dispute as well as other provisions. Defendant also raised common law defenses of frustration of purpose, impracticability and impossibility. Additionally, Defendant raised California’s codified force majeure law under Civil Code 1511 as a defense.

Contrary to Defendant’s assertions and as evidenced by Defendant’s opposition to the summary judgment motion, this was not “a relatively simple unlawful detainer action” where “[t]he facts were not in dispute.” (See Opposition, pp.2-3; Lombardi Decl. ¶¶11-17, 19-27, 24-25, 41; Lombardi Reply Decl. ¶¶2-4 and Ex.A thereto). In order to diligently prosecute this action, Plaintiff’s counsel continually monitored the numerous other cases between Defendant and other landlords. (Lombardi Reply Decl. ¶¶3-4). The Court finds that the similarities between the memorandum of points and authorities in support of the motion for summary judgment filed in this case and a related case involving a different plaintiff which owns neighboring property and arbitration briefs in an unrelated matter involving a different plaintiff and this Defendant do not warrant a reduction in the amount of fees requested. The motion for summary judgment in this case involved more than the brief (i.e., supporting declarations, out-of-state authorities, evidence, etc.). (See Lombardi Reply Decl. ¶2). Additionally, this case involved different facts from the other actions which needed to be taken into consideration in prosecuting the case. Finally, the Court does not find that Plaintiff’s counsel double billed for work performed on this case and other cases against this same Defendant. Plaintiff’s counsel explains that while work was performed on both cases on the same day, the time was allocated accordingly. (See Lombardi Reply Decl. ¶¶16-17).

Finally, the work performed by Plaintiff’s counsel prior to and during the litigation resulted in Plaintiff prevailing in this action by being awarded possession of the property and past due rent in the amount of $368,389.75.

Based on the foregoing, the Court finds that the $185,335.50 sought by Plaintiff for attorneys’ fees to be reasonable.

The Court finds that the documents/information in Plaintiff’s Request for Judicial Notice filed on 10/3/22 are/is not necessary for the ruling on the motion. Defendant’s opposition to Plaintiff’s motion for summary judgment is already part of the court record. The award of attorneys’ fees in other unreported cases has no effect on the ruling on this motion. As such, the Request for Judicial Notice is denied.