Judge: Michael E. Whitaker, Case: 21SMCV00143, Date: 2023-08-10 Tentative Ruling

Case Number: 21SMCV00143    Hearing Date: August 10, 2023    Dept: 207

TENTATIVE RULING

BACKGROUND

Defendant and Cross-Complainant WW Westwood L.P. (“Cross-Complainant”) prevailed on its cross-complaint against Plaintiff and Cross-Defendant Fitness International, LLC (“Cross-Defendant”) for over $1 million in back owed rent not paid during the COVID-19 pandemic.  Cross-Complainant now moves for an award of reasonable attorneys’ fees, pursuant to the terms of the lease agreement.  Cross-Defendant has not filed an opposition.  

ANALYSIS

            Entitlement to Attorneys’ Fees

Code of Civil Procedure section 1021 provides “[e]xcept as attorney’s fees are specifically provided for by statute, the measure and mode of compensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties [….]”  Similarly, Civil Code section 1717 provides “[i]n any action on a contract, where the contract specifically provides that attorney’s fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney’s fees in addition to other costs.”  (Civ. Code, § 1717, subd. (a).)

            Here, Section 36.4 of the Lease agreement provides in relevant part:

If any litigation or other dispute arising between Tenant and Landlord under this Lease requires the use of an attorney by landlord or Tenant, the prevailing party shall be entitled to recover its court costs and reasonable attorney’s fees.  Such attorneys’ fees shall be deemed to have accrued on the commencement of such action and shall be paid whether or not such action is prosecuted to judgment.

(Akopchikyan Decl. ¶ 2, Ex. A.)       

            In the Court’s April 27, 2023 judgment, the Court held “Cross-Complainant is the prevailing party in this action.  Cross-Complainant’s award of costs and/or attorneys’ fees will be determined by noticed motion following entry of judgment, and this judgment shall be amended as necessary to reflect any such award to Cross-Complainant.” 

            Cross-Complainant has therefore met its burden to establish there is a contractual provision entitling it to attorneys’ fees, as the prevailing party in this action. 

            Reasonableness of Fees Sought

            The amount of attorneys’ fees sought must be reasonable.  (Civ. Code, § 1717, subd. (a).)  Here, Cross-Complainant seeks a total of $256,522.00 in attorneys’ fees, representing $248,342.00 for 339.6 hours already spent on the case, plus an additional $8,180.00 for fees anticipated in connection with the motion for attorneys’ fees. 

            As a threshold matter, the time entries attached as Exhibit C to the Akopchikyan declaration include entries for work done by Melissa Zonne and Leilee Ghassemi, but there is no foundation in the declaration establishing that they are attorneys, what their qualifications are, or their hourly rate.  Therefore, the Court does not include in the award the $3,217 or 7.8 hours associated with those time entries.

            Next, attorney Akopchikyan anticipated spending an additional 4 hours at the rate of $635 per hour “reviewing the Opposition to the Motion, analyzing the legal authority therein, and drafting the reply papers” and that “Mr. Jarrell will spend approximately 1 hour reviewing the Opposition, analyzing the legal authority therein, and revising the reply papers” at an hourly rate of $915 per hour.  Because no opposition was filed, the Court does not include the anticipated time and attendant attorneys’ fees in the award.  The Court will, however, allow 1 hour for preparation and attendance of the hearing.

            Therefore, the Court awards reasonable attorneys’ fees in the amount of $249,850.00, representing the requested amount of $256,522, minus $3,217 for time entries related to Melissa Zonne and Leilee Ghassemi, and minus $3,455 for estimated time to be spent on the motion for attorneys’ fees reply.

Cross-Complainant shall provide notice of the Court’s ruling and file a proof of service of such.

DATED:  August 10, 2023                                                     ___________________________

                                                                                          Michael E. Whitaker

                                                                                          Judge of the Superior Court