Judge: Michael J. Strickroth, Case: 2017-00921723, Date: 2022-11-07 Tentative Ruling

Motion for Attorney Fees

Plaintiff Complete Welding & Cutting Supplies’ motion for attorney’s fees and prejudgment interest is GRANTED as modified.

Plaintiff moves for attorney’s fees and prejudgment interest pursuant to Civil Code Sections 1717, 3288, and 3336.

Entitlement to attorney’s fees:

Civil Code section 1717, subdivision (a) states in pertinent part:

“In 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. . . Reasonable attorney’s fees shall be fixed by the court, and shall be an element of the costs of suit.”

Further, Code of Civil Procedure section 1033.5, subdivision (a)(10) authorizes the recovery of attorney’s fees based on contract, statute or law.

Here, the Sales Invoice Provisions provide for attorney’s fees as follows:

“If either party to this invoice brings an action to enforce any of the terms, conditions and provisions hereof, or to declare any rights hereunder the prevailing party in such action on trial or appeal shall be entitled to reasonable attorney fees and court cost as fixed by the court to be paid by the losing party.” (Kestner Decl., ¶ 16, Ex. F.)

 Therefore, Plaintiff has shown that the contract provides for attorney’s fees.

Prevailing Party:

Civil Code section 1717, subdivision (b)(1) states: “The court, upon notice and motion by a party, shall determine who is the party prevailing on the contract for purposes of this section, whether or not the suit proceeds to final judgment. Except as provided in paragraph (2), the party prevailing on the contract shall be the party who recovered a greater relief in the action on the contract. The court may also determine that there is no party prevailing on the contract for purposes of this section.”

After a Court trial held on February 8, 2022, the Court found in favor of Plaintiff on the causes of action for breach of contract and conversion. Thereafter, Judgment was entered on September 14, 2022, in favor of Plaintiff and against Defendant in the amount of $19,280.  Plaintiff is therefore the prevailing party and entitled to an award of attorney’s fees pursuant to section 1717.

Amount of attorney’s fees:

“[T]he fee setting inquiry in California ordinarily begins with the “lodestar,” i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate.” PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095. “The reasonable hourly rate is that prevailing in the community for similar work. [Citation.] The lodestar figure may then be adjusted, based on consideration of factors specific to the case, in order to fix the fee at the fair market value for the legal services provided.” (Id.)

It is within the court’s discretion to decide which of the hours expended by the attorneys were “reasonably spent” on the litigation. Meister v. Regents of Univ. of California (1998) 67 Cal.App.4th 437, 449. A trial court has broad discretion to determine the amount of reasonable attorney’s fees, as an experienced trial judge is in the best position to decide the value of professional services rendered in court. PLCM Group, supra,  at 1095.

Plaintiff’s counsel, David Kestner, states that although his normal and customary hourly fees is $350 and he spent a total of 73.4 hours which would amount to $25,690 in attorney’s fees, he is only seeking $14,708 in attorney’s because he charges Plaintiff a lower hourly rate. (Kestner Decl., ¶ 19.) Kestner’s declaration does not provide the hourly rate at which Plaintiff is seeking recovery of attorney’s fees, however, based on the invoices submitted in support of the Motion, Kestner appears to have charged Plaintiff an hourly rate of $275. (Kestner Decl., ¶ 5, Ex. A.)

The hourly rate of $275 is reasonable.

Defendant challenges the request for attorney fees on multiple grounds.

First, Defendant argues invoices 210603 and 210831 are duplicative. Defendant does not specify how the invoices are duplicate or specify which entry Defendant contends is duplicate. Accordingly, Defendant has failed to show the two invoices request fees for the same work.

Second, Defendant argues $150 requested in invoice 210603 should be stricken because trial was continued as a result of “Plaintiff failing to come to an agreement regarding the dispute of the cylinders at mediation and agreement.” Defendant has not provided any evidentiary support of its argument that it was due to Plaintiff’s failure that the requested amount was incurred.

Third, Defendant argues invoices 210831, 22038, 220406, 220412 should be stricken because the work for which Plaintiff seeks fees in these invoices was unnecessary. However, again, Defendant has not provided any evidentiary support for its argument. Further, to the extent Defendant argues that fees incurred by Plaintiff’s counsel for contacting Plaintiff should not be awarded, contacting a client to discuss the case is not unnecessary and the amount requested is recoverable.

Fourth, Defendant argues the requested fees of $605.50 for work on trial binders is excessive. The Court agrees with Defendant here, the amount is excessive, and the amount requested is reduced by $400 to $205.50.

Fourth, Defendant argues invoice 220518 for $2,475 incurred for closing arguments should be stricken because closing arguments were optional. Defendant does not cite to any authority in support of its argument that fees for work that may be optional may not be awarded by the court. Closing arguments are helpful to the Court, and the amount incurred by Plaintiff’s counsel here was reasonable.

Lastly, Defendant argues that fees incurred in filing a motion for attorney’s fees should be stricken. Plaintiff is entitled to fees incurred in filing a motion for fees.

Based on the foregoing, the Court reduces the fees by $400 and awards $14,308 in attorney’s fees.

Prejudgment Interest:

Civil Code Section 3287, subdivision (b) states: “Every person who is entitled under any judgment to receive damages based upon a cause of action in contract where the claim was unliquidated, may also recover interest thereon from a date prior to the entry of judgment as the court may, in its discretion, fix, but in no event earlier than the date the action was filed.”

Plaintiff seeks $10,248.48 in prejudgment interest calculated from the date of the filing of the Complaint on May 22, 2017.

Defendant does not contest the calculation of prejudgment interest but argues that the prejudgment interest should be denied because (1) trial was continued for two years due to Covid; and (2) Plaintiff’s counsel prolonged the case by reopening discovery based on a misunderstanding that he had regarding “a secret agreement at arbitration.” (Opp., p. 6, ln. 6.)

As for Defendant’s argument prejudgment interest should be denied or reduced due to Covid restrictions, Defendant has not submitted any legal authority in support of its argument that the court may reduce prejudgment costs based on Covid restrictions.

As for Defendant’s argument Plaintiff’s counsel prolonged the case by reopening discovery, Defendant has not provided any evidentiary support to show Plaintiff prolonged trial by seeking to reopen discovery. In fact, it is unclear from Defendant’s opposition what “secret agreement at arbitration” was the alleged cause of the misunderstanding. Further, Plaintiff disputes that Plaintiff prolonged the trial and contends that “the reason for seeking discovery reopening was because Defense counsel would not stipulate to allow documents that he had in his possession for over six (6) months thereby delaying the case and increasing the cost.” (Reply, p. 4, lns. 9-13.) Accordingly, Defendant has failed to show Plaintiff’s counsel prolonged the case.

Based on the foregoing, prejudgment interest of $10,248.48 is GRANTED.

Plaintiff to give notice.  Plaintiff to submit an Amended Judgment consistent with the Court’s ruling above.