Judge Michael J. Strickroth, Case 2019-01114433 2023-08-14 Tentative Ruling

Judge: Michael J. Strickroth, Case: 2019-01114433, Date: 2023-08-14 Tentative Ruling

Motion for Attorney Fees

Plaintiff Sunwest Bank’s Unopposed Motion for Attorney Fees is GRANTED.

When authorized by contract, statute or law reasonable attorney fees are “allowable costs.” Code of Civil Procedure § 1033.5(a)(10)(A), (B) & (C); Santisas v. Goodin (1998) 17 Cal.4th 599, 606; Pacific Custom Pools, Inc. v. Turner Construction Co. (2000) 79 Cal.App.4th 1254, 1268; Harris v. Wachovia Mortgage., FSB (2010) 185 Cal.App.4th 1018, 1027.

Civil Code § 1717 provides as follows: “(a) 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 ... to the prevailing party, then the party who is determined to be the party prevailing on the contract ... shall be entitled to reasonable attorney's fees in addition to other costs ... Reasonable attorneys' fees shall be fixed by the Court, and shall be an element of the costs of suit."

Courts apply a lodestar method to calculate reasonable attorneys’ fees. Meister v. U.C. Regents (1998) 67 Cal. App. 4th 437, 448-449. The court determines a lodestar figure based on a careful compilation of the time spent and reasonable hourly compensation of each attorney involved. Serrano v. Priest (1977) 20 Cal. 3d 25. A reasonable fee is determined in the trial court’s discretion. PLCM Group v. Drexler (2000) 22 Cal. 4^th 1084. To determine reasonable attorneys’ fees, the court should consider the nature of the litigation, its difficulty, the amount involved, the skill required and employed in handling the matter, the attention given, the success of the attorney’s efforts, the intricacies and importance of the litigation, the labor and necessity for skilled legal training and ability in trying the cause, and the time consumed. Church of Scientology v. Wollersheim (1996) 42 Cal. App. 4th 628, 659.

Heritage Pacific Financial, LLC v. Monroy (2013) 215 Cal.App.4th 972, 1009, states: “The court may rely on its own knowledge and familiarity with the legal market in setting a reasonable hourly rate. (Ingram v. Oroudjian (9th Cir.2011) 647 F.3d 925, 928.)”

The Court must evaluate whether the time spent was reasonable. As stated above, the Agreement requires that an award of attorneys’ fees to a prevailing party shall not exceed “all reasonable legal fees and costs and expenses we incur as a result.” This is similar to the lodestar method where the Court has discretion to determine the hours “reasonably spent” on the litigation. Hammond v. Agran (2002) 99 Cal.App.4th 115, 133, 135-136 (disapproved on other grounds by Conservatorship of Whitley (2010) 50 Cal.4th 1206, 1226, fn. 4); see Premier Medical. Management. Systems, Inc. v. California Insurance Guarantee Association (2008) 163 Cal.App.4th 550, 562.

Thayer v. Wells Fargo Bank, N.A. (2001) 92 Cal. App. 4th 819, 846 states: “[T]he predicate of any attorney fee award, whether based on a percentage-of-the-benefit or a lodestar calculation, is the necessity and usefulness of the conduct for which compensation is sought. To award an attorney a premium for duplicative work that was neither difficult nor particularly productive, involved little or no risk, may well have delayed settlement, and seems to have been primarily designed to line counsel's pockets, would reward behavior which it is in the public interest (and as well the special interest of the legal profession) to strongly discourage.” (Emphasis in original.)

Here, Plaintiff is the prevailing party. The Guaranty, Section 7, contains the following language regarding costs and attorneys’ fees incurred in the collection thereof and in enforcement of the Guaranty: If: “(a) this Guaranty is placed in the hands of an attorney for collection or is collected through any legal proceeding; (b) an attorney is retained to represent Lender in any bankruptcy, reorganization, receivership, or other proceedings affecting creditors' rights and involving a claim under this Guaranty; (c) an attorney is retained to provide advice or other representation with respect to this Guaranty; or (d) an attorney is retained to represent Lender in any proceedings whatsoever in connection with this Guaranty and Lender prevails in any such proceedings, then Guarantors shall pay to Lender upon demand all reasonable attorney's fees, costs and expenses incurred in connection therewith (all of which are referred to herein as “Enforcement Costs”), in addition to all other amounts due hereunder, regardless of whether all or a portion of such Enforcement Costs are incurred in a single proceeding brought to enforce this Guaranty as well as the other Loan Documents.” (Goldstein Dec., ¶ 10 and Ex. D) The parties stipulated to the admissibility of the Guaranty in advance of the trial. (Goldstein Dec., ¶ 7 and Ex. C) The Court then entered Judgment in favor of Plaintiff on 1-4-23. (Goldstein Dec., ¶ 6 and Ex. B) The Judgment states: “Plaintiff Sunwest Bank, a California banking corporation. is the prevailing party and is entitled to an award of attorneys’ fees and costs of suit.” (Goldstein Dec., ¶ 6 and Ex. B)

Defendants Madison Realty Equities, LLC and Gary Langendoen do not dispute Plaintiff is the prevailing party.

Based on the foregoing, Plaintiff is entitled to reasonable attorney fees and costs for enforcing the Guaranty.

Plaintiff has presented its billing records containing all of the invoices it paid ($828,867.73) for the work completed on this case. (Declaration of Michael Hadan, ¶ 7, Exs. 1-4, Declaration of Jason E. Goldstein, ¶ 18, Exs. 1-4.) Plaintiff also provides the rates of the Buchalter attorneys and staff that worked on the matter and provides ample support for the rates. (Declaration of Jason E. Goldstein, ¶¶ 20, 24-46.) Defendants Madison Realty Equities, LLC and Gary Langendoen have not disputed the rates are reasonable or the amount of time spent.

Based on the foregoing, the Court awards $828,867.73 to compensate Plaintiff for the amount of attorney fees already paid.

Additionally, Jason E. Goldstein declared he spent 5 hours preparing the motion, expects to spend 6 hours reviewing the opposition and preparing the reply and 3 hours preparing for and attending the hearing. Mr. Goldstein’s rate is $500/hour. (Declaration of Jason E. Goldstein, ¶ 48.)

Goldstein further declares Ms. Neumann also spent 7.7 hours preparing the initial draft of this motion, the initial draft of this declaration and reviewing and compiling exhibits. Ms. Neumann’s rate is $375.00 (Declaration of Jason E. Goldstein, ¶ 48.)

Because there was no Opposition and/or Reply the Court reduces Mr. Goldstein’s request by 6 hours reviewing the opposition and preparing the reply and 1 hour for preparing for and attending the hearing. The court awards an additional 7 hours for Mr. Goldstein’s work for a total of $3,500.00. The Court further awards 7.7 hours for Ms. Neumann’s for a total of $2,887.50.

Therefore, the Court awards $835,255.23 in attorney fees to Plaintiff against Defendants Madison Realty Equities, LLC and Gary Langendoen. Plaintiff Sunwest Bank’s Unopposed Motion for Attorney Fees is GRANTED.

Plaintiff to give notice.

Motion to Vacate Dismissal and Enter Judgment

Plaintiff Sunwest Bank’s Unopposed Motion to Vacate Dismissal and Enter Judgment in the amount of $6,260,214.00 against Defendants GT Madison Oak Park and Villa Marche Stockton Acquisitions, LP, is GRANTED.

Code of Civil Procedure § 664.6 provides that “If parties to pending litigation stipulate, in a writing signed by the parties outside the presence of the court or orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement. If requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement.” (Emphasis supplied.)

“The summary, expedited enforcement procedure afforded by section 664.6 is only available when a settlement satisfies the statutory requirements designed to ensure the parties have actually consented to the terms of the settlement.” Gauss v. GAF Corporation (2002) 103 Cal.App.4th 1110, 1112–1113.

Mesa RHF Partners, L.P. v. City of Los Angeles, (2019) 33 Cal. App. 5th 913, 917 provides: “A request for the trial court to retain jurisdiction under section 664.6 ‘must conform to the same three requirements which the Legislature and the courts have deemed necessary for section 664.6 enforcement of the settlement itself: the request must be made (1) during the pendency of the case, not after the case has been dismissed in its entirety, (2) by the parties themselves, and (3) either in a writing signed by the parties or orally before the court.’ [Citation]”

Here, Plaintiff Sunwest Bank provides the Settlement Agreement entered into by the parties. (Declaration of Scott O. Smith, ¶ 5, Ex. 1.) Section 3.2 provides that concurrently with the Conditional Dismissal, Plaintiff will file the Stipulation and Order re Retention of Jurisdiction To Enforce Settlement Pursuant to Code of Civil Procedure § 664.6. (Declaration of Scott O. Smith, ¶ 5, Ex. 1.) The parties executed and filed the Stipulation and Order re Retention of Jurisdiction To Enforce Settlement Pursuant to Code of Civil Procedure § 664.6 and the Court signed the Order.

Plaintiff indicates Defendants made a few payments but stopped making payments after 3-1-23. (Declaration of Michael Hadan, ¶ 8.) Plaintiff provides evidence Defendants failed to make the payment due 4-25-23. (Declaration of Michael Hadan, ¶ 8.) Plaintiff further provides evidence that pursuant to Section 4 of the Agreement, it provided the required 10-business day notice of default to the Defendants and their counsel. (Declaration of Scott O. Smith, ¶ 7, Ex. 2.) Plaintiff states that after notice, Defendants failed to cure the default. (Declaration of Scott O. Smith, ¶ 8.) Defendants GT Madison Oak Park and Villa Marche Stockton Acquisitions, LP do not provide evidence they have cured their default.

Based on the foregoing, the Court vacates the dismissal entered on 11-2-22 and enters Judgement against Defendants GT Madison Oak Park and Villa Marche Stockton Acquisitions, LP in the amount of $6,260,214.00. Plaintiff is ordered to submit an Amended Proposed Judgment within 10 days of this order.

Plaintiff to give notice.