Judge: Michael P. Linfield, Case: BC697147, Date: 2023-02-15 Tentative Ruling

Case Number: BC697147    Hearing Date: February 15, 2023    Dept: 34

SUBJECT:         Motion for Attorney’s Fees on Appeal No. BS16719

Moving Party:  Defendant United Escrow Co.

Resp. Party:    Plaintiff Caroline Lee

Defendant’s Motion for Attorney’s Fees on Appeal No. B316719 is GRANTED in part. Attorney’s fees and costs are AWARDED for Defendant United Escrow Co. and against Plaintiff in the total amount of $42,157.50.

BACKGROUND:

On March 7, 2018, Plaintiff Caroline S. Lee filed her Complaint against Defendants Jong Han Lee, Bow Tie Realty and Investment, Inc., Tracy Ko, and United Escrow Co. regarding following causes of action:

1.   Breach of Contract and Resulting Trust

2.   General Negligence

3.   Intentional Tort: Breach of Fiduciary Duty

4.   Intentional Tort: Breach of Fiduciary Duty

5.   Breach of Contract

6.   General Negligence

7.   Intentional Tort: Breach of Fiduciary Duty

8.   Intentional Tort: Breach of Fiduciary Duty

Multiple pleadings were filed before Trial.

On August 29, 2019, after a two-day Trial, the Court granted Judgment in favor of Bow Tie Realty and Investment, Inc. as to all claims in the amount of $139,600.00 plus interest in the amount of $25,015.50 and punitive damages in the amount of $500,000.00.

    Since Trial, this case has had a long procedural history, filled with multiple appeals, orders finding cases related, motions for attorney’s fees, and so on.

    On December 16, 2022, the Second District Court of Appeal issued its Order of Remittitur regarding Appeals Case No. B316719, which certified as final the October 10, 2022 Order (dismissing the Appeal) and ordering that Defendants United Escrow and Tracy Ko are to recover their costs on appeal.

    On January 17, 2023, Defendant United Escrow Co. (“Defendant”) filed its Motion for Attorney’s Fees on Appeal No. B316719. Defendant concurrently filed: (1) Memorandum of Costs on Appeal; and (2) Request for Judicial Notice.

On February 3, 2023, Plaintiff filed her Opposition. Plaintiff concurrently filed: (1) Declaration of Jack Karpeles; (2) Exhibits 1 to 12; (3) Request for Judicial Notice; and (4) Proof of Service.

On February 6, 2023, Defendant filed its Reply.

ANALYSIS:

I.           Requests for Judicial Notice

A.      Defendant’s Request for Judicial Notice

Defendant requests that the Court take judicial notice of the docket in Court of Appeal Case No. B316719.

The Court GRANTS judicial notice of this item.

B.      Plaintiff’s Request for Judicial Notice

Plaintiff requests that the Court take judicial notice of 12 items that have been filed in this action.

Judicial notice is denied as superfluous regarding these items. Any party that wishes to draw the Court’s attention to a matter filed in this action may simply cite directly to the document by execution and filing date. (See Cal. Rules of Court, rule 3.1110(d).)

II.        Legal Standard

“Except as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.” (Code Civ. Proc., § 1032, subd. (b).)¿¿ 

“‘Prevailing party’ includes the party with a net monetary recovery, a defendant in whose favor a dismissal is entered, a defendant where neither plaintiff nor defendant obtains any relief, and a defendant as against those plaintiffs who do not recover any relief against that defendant. If any party recovers other than monetary relief and in situations other than as specified, the ‘prevailing party’ shall be as determined by the court, and under those circumstances, the court, in its discretion, may allow costs or not and, if allowed, may apportion costs between the parties on the same or adverse sides pursuant to rules adopted under Section 1034.” (Code Civ. Proc., § 1032, subd. (a)(4).)¿¿ 

Attorneys’ fees are allowed as costs when authorized by contract, statute, or law. (Code Civ. Proc, § 1033.5, subd. (a)(10)(B).)¿¿¿ 

III.     Discussion

Defendant moves the Court to award $42,135.00 in attorney’s fees for Defendant and against Plaintiff for fees incurred regarding Appeals Case No. B316719. (Motion, p. 2:3–19.) Defendant provides the Court with an exhibit that indicates Defense Counsel spent 55.35 hours on the appeal, at a rate of $750.00 per hour from 2021 to 2022 and at a rate of $825.00 per hour in 2023. (Motion, Ex. 1.) Defendant’s Memorandum of Costs on Appeal indicates $645.00 in costs have been incurred.

Plaintiff opposes the Motion, arguing: (1) that Defense Counsel has a conflict of interest and thus should not be awarded an hourly rate of $850.00 per hour; (2) that Defense Counsel should not be awarded an hourly rate of $850.00 per hour as he has made false representations to the Court regarding the events of September 23, 2021. (Opposition, pp. 2:5, 3:15–18, 3:20, 6:18–21.)

Defendant responds in its Reply by noting that Plaintiff has not contested any of the hours incurred and by disagreeing with Plaintiff’s assertions. (Reply, pp. 1:20–23, 2:5.)

The Court agrees that Defendant is entitled to attorney’s fees and costs regarding the litigation in Appeals Case No. B319719. Defendant is the prevailing party on appeal, the Court of Appeal has ordered attorney’s fees, and Plaintiff’s arguments are neither convincing nor relevant to whether Defendant should be awarded attorney’s fees.  (The Court notes that Defendant has previously raised many of these same arguments regarding Plaintiff’s counsel’s conflict of interest and violations of Rules of Court; these arguments have uniformly been rejected by the Court.)

The Court also finds that the costs incurred are reasonable.

        Plaintiff has not challenged any of the hours incurred by Defendant as being excessive.  “In challenging attorney fees as excessive because too many hours of work are claimed, it is the burden of the challenging party to point to the specific items challenged, with a sufficient argument and citations to the evidence. General arguments that fees claimed are excessive, duplicative, or unrelated do not suffice.” (Lunada Biomedical v. Nunez (2014) 230 Cal.App.4th 459, 488, quoting Premier Med. Mgmt. Sys., Inc. v. California Ins. Guarantee Ass'n  (2008) 163 Cal. App. 4th 550, 564.)

However, the Court does not believe that Defendant’s counsel is entitled to have his hourly rate increased by an additional 10% for work performed in 2023.

IV.       Conclusion

        Defendant’s Motion for Attorney’s Fees on Appeal No. B316719 is GRANTED in part. Attorney’s fees and costs are AWARDED for Defendant United Escrow Co. and against Plaintiff in the total amount of $42,157.50 as indicated below: