Judge Michael J. Strickroth, Case 2018-00974280 2023-08-21 Tentative Ruling

Judge: Michael J. Strickroth, Case: 2018-00974280, Date: 2023-08-21 Tentative Ruling

Motion for Attorney Fees

Doe Defendant ROI Property Group, LLC’s (“ROIPG”) motion for attorneys’ fees as the prevailing party against Platinum Properties Investor Network, Inc. is GRANTED in the reduced amount of $23,709.

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 Referral Fee Agreement (“Agreement”) provides for attorneys’ fees as follows:

“The prevailing party in any action, litigation, claim, or arbitration arising from this Agreement will be entitled to recover its reasonable attorneys’ fees, expenses and costs.” (Heffner Decl., Ex. 1, § 11(c).)

Therefore, ROIPG has shown the Agreement provides for attorneys’ 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.”

Here, the action against ROIPG was involuntarily dismissed. Specifically, on August 10, 2021, Platinum’s counsel filed a motion to withdraw. (ROA 518.) On September 9, 2021, the Court granted the motion and ordered Platinum to engage new counsel by October 14, 2021. (ROA 528.) On October 14, 2021, the Court continued the order to show cause hearing until November 18, 2021. (ROA 564.)] However, Platinum did not retain counsel by November 18, 2021, and the Court dismissed the action. (ROA 579.)

“[A] defendant might prevail within the meaning of section 1717 by winning a purely procedural dismissal. If refiling would be legally barred—by the statute of limitations, for example—or would be otherwise impossible or impracticable, the defendant might be deemed the prevailing party without obtaining a resolution on the merits.” City of West Hollywood v. Kihagi (2017) 16 Cal.App.5th 739, 754. ROIPG states in its Reply that “Although Platinum Inc.’s involuntary dismissal was without prejudice, Platinum Inc.’s claims are now time-barred, precluded by res judicata, and fully disposed.” There appears to be no dispute that Platinum Inc. is barred from refiling the action against ROIPG.

Platinum Inc. argues ROIPG is not a prevailing party because no claim was asserted against ROIPG. However, Platinum Inc. filed its Doe Amendment against ROIPG which brought ROIPG into this matter as a named defendant. (ROA 147.)

Accordingly, ROIPG is the prevailing party and entitled to an award of attorneys’ 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 University 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.

The amount of fees requested is reduced to $23,709 for the following reasons:

First, ROIPG has submitted redacted billing entries. Due to the redactions for billing entries amounting to $10,752.50, the Court was unable to determine whether the hours spent on the tasks were reasonable or related to this matter. Accordingly, the court reduces the amount of fees requested by $10,752.50.

Second, ROIPG seeks $840 for 2.10 hours in travel time on 12/12/19 for James E. Heffner for travelling from Orange County to San Diego following a status conference. “[A]ttorney’s fees for travel hours may be awarded if the court determines they were reasonably incurred.” Roe v. Halbig (2018) 29 Cal.App.5th 286, 313. The amount of travel time requested was not reasonably incurred and is reduced to 0.5 hours and ROIPG is awarded $200 for the travel time, reducing the amount of fees requested by $640.

Third, ROIPG was billed $10,627 for 28.9 hours of work on ROIPG’s demurrer. (Diefenbach Decl., ¶ 7.) The demurrer was unopposed and never heard by Court. (Opp. p. 5, ln. 24.) The amount billed for drafting and thereafter revising the demurrer is excessive and is reduced by $7,000.

Fourth, the billing records show that prior to preparing the demurrer on 11/6/19, counsel spent 5.5 hours and billed $1,897.50 for drafting a memorandum analyzing the strategy to challenge the pleading as to ROIPG. The amount is unreasonable and is reduced by $1,500.

Fifth, the billing records show that on 06/29/2020, counsel billed $2,040 for “Preparation of pleading challenge for filing on behalf of ROI Property Group when stay is lifted.” Plaintiff has shown that the stay was not lifted, and the motion referenced in the billing records was never filed. The motion was not necessary, and the amount is excessive. Therefore, the fees for this requested work are reduced by $1,600.

Sixth, the billing records reflect counsel billed $7,851 for preparing a motion for sanctions. According to the opposition, the motion was drafted on behalf of ROI and not just ROIPG. (Opp., p. 11, fn. 6.) The amount billed is excessive and is reduced by $4,500.

Lastly, ROIPG’s billing records request fees through January 30, 2023 which included hours worked on preparing this Motion. ROIPG requests an additional $7,000 it contends it will incur in connection with this Motion. The amount requested is excessive and the court reduces the request by $5,000.

Based on the foregoing, the Court GRANTS the motion in the reduced amount of $23,709.

Moving party to give notice.

Motion to Strike or Tax Costs

Plaintiff Platinum Properties Investor Network, Inc.’s motion to tax costs is CONTINUED to November 20, 2023, at 1:45 PM, in Department C15.

On July 27, 2023, Plaintiff filed and electronically served an Amended Memorandum of Points and Authorities in Support of its Motion to Tax (“Amended Motion”). (ROA No. 1102.) Defendants ROI Property Group Management, LLC and ROI Property Group 2, LLC object to the Amended Motion on the grounds Plaintiff did not provide the necessary notice as required by Code of Civil Procedure section 1005.

Plaintiff was required to electronically serve its Amended Motion on Defendants by July 26, 2023. Therefore, the Amended Motion did not provide the required statutory notice. Code Civ. Proc. §§ 1005, 1010.6(3)(B). Defendants ask that if the court decides to consider Plaintiff’s arguments in the Amended Motion, Defendants be given an opportunity to further brief the new issues. (Opp., p. 3, lns. 7-9.)

Plaintiff consents to the request for a continuance and additionally asks the Court to continue the hearing to a date after the hearing on Plaintiff’s Motion to Compel Satisfaction of Judgment, which is “a threshold issue on this motion and every subsequent motion to tax.” (Reply, p. 2, ln. 9-11.) The Motion to Compel is currently set to be heard on May 6, 2024. (Reply, p. 2, ln. 12.)

The Court will consider the arguments in the Amended Motion and continue the hearing on this motion to allow Defendants to fully brief the new issues addressed in the Amended Motion.

Defendants may file an amended opposition to this motion (ROA 868) no later than 9 court days prior to the continued hearing. Plaintiff may file an amended reply no later than 5 court days prior to the continued hearing.

Further, on the Court’s own motion, plaintiff Platinum Properties Investor Network, Inc.’s Motion to Tax Costs (ROA 899) filed on 3/15/2023 and set for hearing on 9/11/2023 is also continued to 11/20/2023 at 1:45 PM in Department C15.

Additionally on the Court’s own motion Platinum Properties Investor Network, Inc.’s Motion to Compel Satisfaction of Judgment (ROA 1156) filed on 08/14/2023 and set for hearing on 05/6/2024 is advanced for hearing on 09/25/2023 at 1:45 PM in Department C15.

Plaintiff to give notice.