Judge: Michael Shultz, Case: 22CMCV00099, Date: 2022-08-09 Tentative Ruling

Case Number: 22CMCV00099    Hearing Date: August 9, 2022    Dept: A

22CMCV00099 Baxley v. Hernandez

Tuesday, August 9, 2022 at 8:30 a.m.

[TENTATIVE] ORDER GRANTING DEFENDANT’S MOTION FOR ATTORNEY’S FEES

This is an unlawful detainer action arising from a written agreement to lease commercial real property for a two-year term. Plaintiff served a three-day notice to pay rent or quit, which expired on July 7, 2021.  On June 14, 2022, the court sustained Defendant’s demurrer to the complaint without leave to amend, and the clerk gave notice of dismissal of the action on the same date. Defendant filed and served this motion for attorney’s fees on July 13, 2022. The court’s file does not reflect that Plaintiff filed an opposition.

A fee motion must be served and filed within the time for filing a notice of appeal, which is 60 days. Cal Rules of Court Rule 3.1702 subd. (b)(1), and 8.104. The clerk mailed the Notice of Dismissal on June 14, 2022, therefore, the 60-day period (increased by five calendar days for service of the notice by mail) will not expire until August 18, 2022. Therefore, this motion was timely filed.

A prevailing party is entitled to recover costs as a matter of right. Code Civ. Proc., § 1032, subd. (a)(4), (b).) Attorney’s fees are recoverable as costs when authorized by contract, statute, or law. Code Civ. Proc., § 1033.5, subd. (a)(10).  The prevailing party in an action based on contract is entitled to reasonable attorney’s fees in an amount to be determined by the court. Civ. Code, § 1717. A prevailing party includes "a defendant in whose favor a dismissal is entered.” Code Civ. Proc., § 1032 subd. (a)(4).

Awarding attorney’s fees “is a matter in the sound discretion of the trial court and absent a manifest abuse of discretion the determination of the trial court will not be disturbed.” Hadley v. Krepel (1985) 67 Cal.App.3d 677, 682. In determining a reasonable fee, the court considers factors including the nature of the litigation; its difficulty; the amount involved; the skill required and the skill employed in handling the litigation; the attention given; the success of the attorney's efforts; the attorney’s learning, age, and experience in the particular type of work demanded; 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." Hadley at 682.

The court begins with the “lodestar” which is the number of hours reasonably spent  multiplied by a 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. Id. The lodestar figure may then be adjusted, based on the factors specific to the case, to determine the fair market value for the legal services provided. Id. 

Defendant requests a fee award of $3,185 incurred to defend this case pursuant to the lease agreement which permits recovery of attorney’s fees by a prevailing party in an action or proceeding, whether founded in tort, contract, or equity. Declaration of Adam Apollo, Ex. 1, paragraph 31. The agreement defines “prevailing party” as a party who “substantially obtains or defeats the relief sought” whether by compromise, settlement, judgment, or abandonment by the other party of its claim. Id. The prevailing party is entitled to attorney’s fees, costs, and expenses reasonably incurred. Id. As Defendant obtained a dismissal of the action in his favor, Defendant is the prevailing party under the terms of the lease and pursuant to Code of Civil Procedure section 1032.

Plaintiff commenced this action on April 18, 2022. Defendant filed a demurrer on May 10, 2022, and appeared at the hearing on May 18, 2022, at which time the court sustained demurrer without leave to amend. Min. Ord of 5/18/22. The court entered dismissal on June 14, 2022. Counsel’s hourly rate is $350, which the court finds to be reasonable. Apollo declaration, paragraph 4. Counsel spent 3.4 hours drafting the demurrer and appearing at the hearing. Apollo declaration, ¶ 6. Counsel also spent 2.7 hours preparing the instant motion. Defendant did not incur fees to prepare a reply brief.

      Based on the foregoing, the court GRANTS the motion and awards fees in the total amount of $2,485.00.