Judge: Michael Small, Case: 19STCV20562, Date: 2023-09-08 Tentative Ruling

Inform the clerk if you submit on the tentative ruling. If moving and opposing parties submit, no appearance is necessary.

Case Number: 19STCV20562    Hearing Date: September 8, 2023    Dept: 57

Pending before the Court is Plaintiff's motion for attorney's fees.  Plaintiff was the prevailing party in this action on the parties' contract and thus is entitled to an award of attorney's fees under Civil Code Section 1717.  In determining what that award should be, the Court notes first that the hourly billing rate of Plaintiff's attorney is reasonable, and Defendant does not contend otherwise.  The next question is whether all of the hours that Plaintiff's attorney spent on the case are recoverable under Section 1717.  This requires an assessment of the extent of Plaintiff's success in the case.   As indicated above, Plaintiff is the prevailing party. But he did not prevail on a critical issue: namely, the enforceability of the liquidate damages clause in the parties' contract.  Following a bench trial on that issue, which was Phase 1 of the trial,  the Court held that the clause was a penalty and hence unenforceable.   This ruling required Plaintiff to prove his damages at Phase 2 of the trial. The case then proceeded to a jury trial on Phase 2.  At the conclusion of the Phase 2 trial, the jury awarded damages to Plaintiff  on the breach of contract claim and other claims.   Under these circumstances, the Court is inclined to deduct from Plaintiff's request for attorney's fees the amount of  fees that are attributable to the Plaintiff's preparation for, and conduct of, Phase 1 of the trial.  In anticipation of that result on the motion, the reply brief of Plaintiff's counsel proposes a Phase 1-based reduction in the fee award.  At the hearing on the motion, the Court will inquire of Defendant's counsel whether counsel would accept that proposed reduction.   Other than a Phase 1-based reduction, the Court will not reduce the Plaintiff's fee award any further even though, as Defendant points out in his opposition to the Motion, the jury awarded the Plaintiff significantly less than the Plaintiff was seeking in damages in Phase 2.