Judge: Michael Shultz, Case: TC028862, Date: 2022-08-09 Tentative Ruling

Case Number: TC028862    Hearing Date: August 9, 2022    Dept: A

TC028862 CORONA, et al. v. BUENO, et al.

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

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

The Third Amended Complaint, filed on October 18, 2018, alleges that Plaintiffs purchased residential real property from Defendants, Ramon Bueno and Bueno Properties, LLC (“Sellers”). Sellers cancelled the escrow account opened with Defendant, Pacific Escrow, Inc. (“Pacific”) upon Sellers’ receipt of an appraisal that was higher than the purchase price. Sellers opened another escrow and sold the property to other buyers. Plaintiffs allege claims for breach of contract, breach of the implied covenant of good faith and fair dealing, fraud, and breach of fiduciary duty.

On May 16, 2022, the court dismissed Plaintiffs’ claims against Defendants, Ramon Bueno (“Bueno”) and Yaxkin “Rony” Velasquez, when Plaintiffs failed to appear at trial. Defendant, Ramon Bueno, moves for an award of attorney’s fees as a prevailing party.

Defendant’s motion, filed on July 11, 2022, asserts that the parties’ sale contract included a provision for attorney’s fees to the prevailing party. Plaintiffs failed to appear at trial, as such, the action was dismissed as against Bueno and others. 

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 May 16, 2022, therefore, the 60-day period (increased by five calendar days for service of the notice by mail) expired on July 20, 2022. Therefore, this motion was timely filed on July 11, 2022.

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(a)(4). The purchase contract includes a provision permitting recovery of attorney’s fees to the prevailing buyer or seller. Motion, Ex. A, page 9, ¶ 25. 

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 the reasonable hourly rate. PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095 1096.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, in order to determine the fair market value for the legal services provided. Id.

Defense counsel spent hours litigating this matter for nearly five years from the date the action was commenced on July 31, 2017, through the date of dismissal on May 16, 2022. Declaration of Marlene Kern, Ex. B. Defense counsel filed three demurrers in this action and propounded discovery. The court finds that the time spent litigating this matter as reflected by defense counsel’s billing records is reasonable. Defendant also requests fees incurred to prepare this motion. The court finds that two hours to prepare this motion is reasonable at Defendant’s hourly rate of $375.00. The court’s calculation of attorney’s fees for professional services as reflected in the Defendant’s billing statements is shown below.

            The court did not include expenses because Defendant’s recoverable costs from a non-prevailing party are governed by Code of Civil Procedure § 1033.5. A prevailing party who claims costs “must” file and serve a Memorandum of Costs within 15 days after service of the notice of entry of judgment or dismissal. Cal Rules of Court, Rule 3.1700 subd. (a)(1). The time provisions, “while not jurisdictional, are mandatory." Hydratec, Inc. v. Sun Valley 260 Orchard & Vineyard Co. (1990) 223 Cal. App. 3d 924, 929. Failure to present a cost bill results in a waiver of the right to costs. Id. The 15^th day (increased by five days for mailing of the clerk’s notice) expired on June 5, 2022. The court’s file does not reflect that Defendant filed a Memorandum of Costs.   Accordingly, Defendant waived his right to recover costs.

            Based on the foregoing, the court grants Defendant’s Motion for Attorney’s Fees in the reduced amount of $20,082.50.