Judge: Michael C. Kelley, Case: MC028169, Date: 2022-09-29 Tentative Ruling

Case Number: MC028169    Hearing Date: September 29, 2022    Dept: A15

Background

This contract dispute was filed by Plaintiff Connie Hernandez (“Plaintiff”) against Defendant Phoenix Thottam aka Peter Thottam (“Defendant”). Plaintiff alleged that she and Defendant had entered into a written contract for Plaintiff to lease the commercial property located at 13120A Pearblossom Highway, in the city of Pearblossom (the “Property”); Plaintiff’s intention was to open a restaurant. Plaintiff alleged that Defendant breached the contract by failing to supply electricity to the Property.

Plaintiff filed the operative Complaint on July 18, 2018, alleging two causes of action for (1) fraud and (2) breach of contract. After almost two years of motion practice, the case proceeded to a bench trial. The Court found in Defendant’s favor on the first cause of action for fraud, but in Plaintiff’s favor on the second cause of action for breach of contract. (Final Ruling After Trial, filed May 4, 2020.) The Court therefore awarded damages to Plaintiff totaling $13,200.00, as well as costs and attorney fees. (Id. at 10.)

After an unsuccessful Motion for Reconsideration, Defendant filed a Notice of Appeal on July 6, 2020. On May 10, 2022, the Court of Appeal rendered its opinion: it affirmed the Court’s judgment and awarded Plaintiff costs on appeal.

Plaintiff therefore filed the instant Motion for Attorney Fees on August 29, 2022. Defendant filed a timely Opposition in propria persona. Plaintiff filed a timely Reply.

Analysis

Motion for Attorney Fees—The trial court has the authority to determine the amount of attorney fees to be awarded upon appeal, as part of its determination of the prevailing party’s costs. (Rabinowitch v. California Western Gas Co. (1967) 257 Cal.App.2d 150, 160.) This Court already found that Plaintiff was entitled to an award of attorney fees on her successful breach of contract claim, pursuant to Civil Code section 1717. (Min. Ord., dated Jul. 21, 2020.) The Court of Appeal then awarded Plaintiff costs on appeal.

Defendant opposes Plaintiff’s Motion for Attorney Fees on the following grounds: (1) Plaintiff has not met her burden of establishing that his appeal was frivolous and (2) Plaintiff requests an unreasonable amount of fees.

Whether Plaintiff must establish Defendant’s appeal was frivolous

Defendant mistakenly relies on Code of Civil Procedure section 425.16 for his contention that Plaintiff is not entitled to attorney fees unless “the trial court finds the motion was frivolous or solely intended to cause unnecessary delay.” (Def.’s Opp’n Mot. Atty Fees at 4.) Code of Civil Procedure section 425.16 pertains only to anti-SLAPP motions. Therefore, this contention is incorrect. Plaintiff bears no such burden.

Reasonableness of Fees

“A trial court may not rubber stamp a request for attorney fees, but must determine the number of hours reasonably expended.” (Donahue v. Donahue (2010) 182 Cal.App.4th 259, 271.) “[T]he burden is on the party seeking attorney fees to prove that the fees it seeks are reasonable.” (Gorman v. Tassajara Development Corp. (2009) 178 Cal.App.4th 44, 98.) “A reduced award might be fully justified by a general observation that an attorney overlitigated a case or submitted a padded bill or that the opposing party has stated valid objections.” (Id., 101.)

Here, Plaintiff moves for $14,700.00 in attorney fees incurred in responding to Defendant’s appeal. She reaches this amount based on her attorney’s $350.00 hourly rate, and an alleged 42 hours of her attorney’s work. (Pl.’s Mot. Atty. Fees Appeal at Decl. Kasbekar ¶ 2.) She has lodged a log of her attorney’s work, which includes the amount of time spent on particular tasks. (Id. at Ex. C [PDF p. 48].) The log indicates that Plaintiff’s attorney performed this work between November 10, 2020 to August 17, 2022. This indeed corresponds with the date Defendant filed the appeal, and the date Plaintiff filed this motion for fees on appeal. The Court finds this sufficient to establish Plaintiff’s entitlement to 42 hours’ worth of fees.

There is nothing in the record that indicates Plaintiff’s attorney “overlitigated” this case or submitted a “padded bill.” However, Defendant argues the fees are unreasonably high because: (1) Plaintiff’s attorney is not an appellate attorney (the implication being that this attorney’s services is not worth $350.00 per hour), (2) Plaintiff overlitigated this case because she failed to mitigate her damages, and (3) the attorney could not have worked 42 hours on this appeal.

The Court rejects Defendant’s implied argument that Plaintiff’s attorney, Shivali Kasbekar, is not entitled to a billing rate of $350.00 per hour. Ms. Kasbekar attests that she has been a licensed attorney since 2018 and that she has prior appellate experience. (Pl.’s Reply Supp. Mot. Atty Fees Appeal at Decl. Kasbekar ¶ 2.) She attests that $350.00 per hour is her normal rate. (Ibid.) Based on this Court’s experience, $350.00 per hour is a typical rate for an associate attorney’s work. Though Defendant argues that Plaintiff’s attorneys had previously billed at $250.00 per hour, this fact does not preclude her attorneys from now billing at $350.00 per hour; attorneys are allowed to raise their rates, nor is it unreasonable to charge higher rates for appellate work. There is nothing suspect about Ms. Kasbekar’s rate.

As for Defendant’s argument that Plaintiff is not entitled to attorney fees because she should have accepted Defendant’s offer to rescind the contract, the Court reminds Defendant that this is a motion regarding the fees incurred upon appeal. Defendant is the party who chose to appeal the judgment; and just as Defendant had a right to his appeal, Plaintiff had every right to participate in said appeal. She had no obligation to mitigate the amount of fees she incurred in responding to Defendant’s appeal.

Lastly, Defendant argues Ms. Kasbekar could not have spent 42 hours working on this appeal, because Plaintiff’s appellate brief was only 10 pages. He equates this to $1,470.00 per page. But the log (Plaintiff’s Exhibit C) makes clear that Ms. Kasbekar spent 18.9 hours, not 42 hours, drafting the response brief. The rest of the time was spent reviewing Defendant’s filings, and preparing for and attending oral argument. There is nothing excessive about spending that amount of time on an appeal, especially considering that Defendant raised six different grounds for his appeal; the more grounds that Plaintiff needed to oppose, the more time her attorney needed to spend researching and writing the memorandum. This was not unreasonable.

In summary, Plaintiff met her burden of showing that the amount of fees she requested was reasonable. She met this burden by submitting a log of the hours her attorney worked, and the tasks she performed in association with those hours. Defendant’s arguments in opposition were not meritorious.

Conclusion