Judge: Michael E. Whitaker, Case: 21SMUD00730, Date: 2023-08-15 Tentative Ruling

Case Number: 21SMUD00730    Hearing Date: August 18, 2023    Dept: 207

tentative ruling

background

On November 29, 2021, Plaintiff Montgomery Management Co. (“Plaintiff”) filed this unlawful detainer action against Defendant Ralph Brescia (“Defendant”).  Judgment was entered in Plaintiff’s favor on May 15, 2023, following a bench trial. 

Plaintiff now brings this motion to recover its reasonable attorneys’ fees pursuant to Civil Code section 1717.  Defendant opposes the motion.  Plaintiff replies to the opposition. 

Legal Standard

Civil Code section 1717 provides, in relevant portion:  “[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.”

ANALYSIS

Section 6 of the parties’ lease, which is attached as Exhibit A to the first amended complaint, requires Defendant “[t]o pay lessor [Plaintiff] all costs and expenses, including attorney’s fees in a reasonable sum, in any action brought by lessor to recover any rent due and unpaid hereunder, or for the breach of any of the covenants contained in this lease, or to recover possession of said premises, whether such action progresses to judgment or not.”

Moreover, the judgment entered by the Court on May 15, 2023 provides, “[a]s prevailing party, Plaintiff Montgomery Management Company shall recover its attorney’s fees and costs of suit pursuant to its timely filing a Memorandum of Costs to Recover its Attorney’s Fees in this action.”  (May 15, 2023 Judgment.) 

Plaintiff seeks to recover a total of $73,830.11 in attorneys’ fees, which represents the following expenditure of attorney time:

            Paralegal and law clerk time is properly recoverable as “attorney’s fees.”  (Guinn v. Dotson (1994) 23 Cal.App.4th 262, 267-69.)

            The attorneys’ fees requested also includes $520.11 in out-of-pocket expenses incurred, which does not include the costs already requested in the memorandum of costs Plaintiff submitted.  (Zepeda Decl. ¶ 24.)  In general, out-of-pocket expenses could be appropriate, if they are encompassed by section 6 of the parties’ lease agreement.  (See Hsu v. Semiconductor Systems, Inc. (2005) 126 Cal.App.4th 1330, 1342 [“In the absence of some specific provision of law otherwise, attorney fees and the expenses of litigation, whether termed costs, disbursements, outlays, or something else, are mutually exclusive, that is, attorney fees do not include such costs and costs do not include attorney fees”].)  However, Plaintiff has not itemized or otherwise specified what these additional $520.11 in costs entail.  Because the Court does not have sufficient information to evaluate these costs and whether they are reasonably encompassed by the parties’ lease agreement, the Court does not include them in the award.

            The fee request also includes $2,090 of anticipated time spent preparing the Reply and appearing at the hearing as follows: 1 hour of attorney Zepeda’s time to prepare the Reply at a rate of $550 and 3 hours of attorney Stewart’s time to prepare the reply and 2 hours to appear at the hearing at a rate of $275.  The Court notes that one hour of attorney Zepeda’s time ($550) plus five hours of attorney Stewart’s time ($1375) adds up to $1,925, not $2,090.  In any event, the Court will allow fees for 1 hour of attorney Zepeda’s time to prepare the Reply at a rate of $550, 1 hour of attorney Stewart’s time to prepare the Reply at a rate of $275 and 1 hour of attorney Stewart’s time to attend the hearing, for a total of $1,100. 

            Defendant argues that the amount of attorneys’ fees requested is unreasonable because (1) the $73,830.11 attorney fee request exceeds the $72,296.78 judgment; and (2) Plaintiff’s lawsuit was against public policy in light of the COVID-19 pandemic.  In lieu of legal arguments, the Opposition contains a laundry list of grievances about the progression of this case.

            A fee award that exceeds the amount of damages is not per se unreasonable.  (See, e.g., Peak-Las Positas Partners v. Bollag (2009) 172 Cal.App.4th 101, 104 [court awarded $511,282.50 in attorney’s fees, even though the underlying dispute involved only $315,000].)  Here, Defendant engaged in conduct which increased the attorneys’ fees. 

            For example, Defendant filed an untimely motion to quash service, which required Plaintiff’s counsel to spend time briefing the issue and attending the hearing.  There were also three “final” status conferences, all of which Plaintiff’s counsel had to attend, because Defendant and Defendant’s counsel repeatedly requested continuances.  Defendant’s counsel also did not appear to participate in the filing of the “joint” witness and exhibit lists prior to trial, in contravention of the Court’s order, requiring Plaintiff’s counsel alone to expend resources putting the lists together.  Defendant also untimely moved for a new trial, and unsuccessfully moved to set aside the judgment and the order denying Defendant’s untimely motion for a new trial, after the Court had already explained that the time limits for moving for a new trial are jurisdictional, and no relief could be obtained.  (See July 11, 2023 Minute Order on Hearing on Motion for New Trial; July 18, 2023 Motion to Set Aside/Vacate Judgment and Set Aside Order Denying Defendant’s Motion for a New Trial.)  In short, Defendant’s conduct required Plaintiff to expend otherwise avoidable attorney hours briefing issues and attending additional hearings, increasing Plaintiff’s attorneys’ fees.

            Plaintiff’s counsel has itemized the attorney hours expended in this action, and supported the request by a detailed declaration.  Defendant does not dispute any particular entries, but rather complains that Plaintiff brought the suit. 

            Moreover, public policy does not bar Plaintiff’s recovery of attorneys’ fees.  There are no orders in this action that Plaintiff violated any rule or law in filing and pursuing this action.  To the contrary, the motion details how Plaintiff followed all relevant laws and COVID-related moratoriums throughout the proceedings, first filing a limited Unlawful Detainer action, then amending the complaint to convert into a limited civil action once Defendant surrendered possession of the property (which was limited, due to the COVID-19 restrictions), and then, only after the COVID-19 restrictions were lifted or had expired, did Plaintiff convert this action to an  unlimited case by filing a Motion for Reclassification.  (Motion at p. 2.) 

Plaintiff successfully litigated this case through a bench trial and prevailed in being awarded a judgment in the amount of $72,296.78.  Therefore, the attorneys’ fees requested are reasonable, except for the time estimated to prepare and file a reply papers and hearing on the instant motion noted above.

Conclusion and order

The Court grants Plaintiff’s request for attorneys’ fees in the amount of $72,320.00 which represents the requested amount of $73,830.11 minus $520.11 in unsupported expenses, minus the $2,090 estimated to be spent on preparing the reply brief and attending the hearing, plus $1,100 awarded by the Court for time spent on the Reply briefing and to attend the hearing.

Plaintiff shall provide notice of the Court’s ruling and file a proof of service regarding the same.

DATED:  August 18, 2023                             ___________________________

                                                                  Michael E. Whitaker

                                                                  Judge of the Superior Court