Judge: Michelle Williams Court, Case: BC656279, Date: 2023-02-06 Tentative Ruling

Please notify Dept. 1’s courtroom staff by email (SMCDept1@lacourt.org) or by telephone (213-633-0601) no later than 8:30 a.m. the day of the hearing if you wish to submit on the tentative ruling rather than argue the motion.  If you submit on the tentative, you must immediately notify the other side that you will not appear at the hearing.  If you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the motion.  Please keep in mind that appearing at the hearing and simply repeating the arguments set forth in the papers is not a good use of the court’s time or the parties’ time.

 

Case Number: BC656279    Hearing Date: February 6, 2023    Dept: 1

BC656279      ROSA COJULUN VS LIRIA MELENDEZ ET AL

Defendant/Cross-Complainant Liria Melendez’ Motion for Attorney’s Fees and Costs against Defendant Javier Perez

TENTATIVE RULING:  Defendant/Cross-Complainant Liria Melendez’s Rescheduled Motion for Attorney’s Fees and Costs against Defendant Javier Perez in the Sum of $1,925,399.30 is GRANTED in part. The Court awards Liria Melendez attorneys’ fees in the amount of $313,784.00.  The request for costs is DENIED.

Background

On April 3, 2017, Plaintiff Rosa Cojulun filed this action against Defendants Liria Melendez, Luisa Melendez, Javier Perez, Victor Valle, and Best Alliance Foreclosure and Lien Services Corp. The operative Third Amended Complaint asserted causes of action for: (1) breach of contract, (2) accounting, (3) wrongful foreclosure, and (4) declaratory relief. The TAC alleged Plaintiff was the equitable owner of real property located at 13147 Gladstone Avenue, Sylmar, CA 91342 and transferred the property into Defendant Liria Melendez’s name solely to refinance the mortgage on the property and enter into a joint venture agreement with potential investors in Plaintiff’s planned subdivision. The complaint alleges the Liria Melendez entered into a joint venture agreement with Defendants Valle and Perez, for Plaintiff’s benefit. However, Defendants Valle and Perez allegedly breached the agreement by failing to provide funds to subdivide and develop the property. Defendant Perez also allegedly utilized a deed of trust to wrongfully foreclose on the property through Best Alliance Foreclosure and Lien Services Corp.

On February 7, 2018, Defendant Liria Melendez filed a Cross-Complaint against Javier Perez, Victor Valle, and Best Alliance Foreclosures and Lien Services Corp., asserting causes of action for: (1) breach of contract, (2) breach of covenant of good faith and fair dealing, (3) fraud and deceit, (4) accounting, (5) wrongful foreclosure, (6) quiet title, and (7) declaratory relief.  On June 21, 2018, the Court sustained cross-complainant Perez’s demurrer to the seventh cause of action without leave to amend.

Plaintiff Rosa Cojulun, Liria Melendez, and Javier Perez proceeded to trial on their claims. The jury tried causes of action for breach of contract, fraud, and wrongful foreclosure whereas the court tried the causes of action for accounting, quiet title, and declaratory relief. On August 25, 2022, the Court entered judgment awarding Liria Melendez title to the property, $400,000.00 in general damages, and $1,000,000.00 in punitive damages as well as a right to an accounting of all funds advanced or expended on the project. The judgment indicates the jury found the fraud and breach of contract causes of action were barred by the statute of limitations.

Motion

On November 29, 2022, Defendant/Cross-Complainant Liria Melendez filed the instant motion for attorneys’ fees and costs.

Opposition

In opposition, Perez contends the claimed costs are barred by Melendez’s failure to timely file a memorandum of costs and the costs claimed are not recoverable. Perez also argues attorneys’ fees are barred by the rules of professional conduct, the hourly rates and hours claimed are excessive, unreasonable, and inadequately supported, a lodestar multiplier is not appropriate, and Melendez’s bad faith warrants an outright denial of the motion.

Reply

In reply, Melendez argues Perez failed to meet his burden, the hours claimed and hourly rates are reasonable, the motion is not barred by the rules of professional conduct, a cost memorandum was not required, and a lodestar multiplier is warranted.

Judicial Notice

Perez requests the Court take judicial notice of documents filed in this action. Melendez’s opposition to this request lacks merit. “[A] request for judicial notice allows parties to introduce records of any court of the State of California. (Evid.Code, § 452, subd. (d).) There is no requirement that those records be sworn or certified before a court can take judicial notice of the documents.” (Thayer v. Kabateck Brown Kellner LLP (2012) 207 Cal.App.4th 141, 155–156.) The request for judicial notice of Exhibit Nos. 1-17 is GRANTED. (Evid. Code § 452(d).)

Perez also requests the Court take judicial notice of records from the California State Bar regarding the attorneys on this case. Melendez’s opposition to this request lacks merit as well. The Court properly takes judicial notice of attorney information from the State Bar’s website. (In re White (2004) 121 Cal.App.4th 1453, 1469 n.14; In re Sodersten (2007) 146 Cal.App.4th 1163, 1171 n.1.) The request for judicial notice of Exhibit Nos. 18-24 is GRANTED.

Motion for Attorneys’ Fees

Standard

Pursuant to Code of Civil Procedure section 1033.5(a)(10), a prevailing party may recover attorneys’ fees when authorized by contract, statute, or law. Civil Code section 1717(a) provides “[i]n 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 either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney's fees in addition to other costs.”

“The reasonableness of attorney fees is within the discretion of the trial court, to be determined from a consideration of such factors as the nature of the litigation, the complexity of the issues, the experience and expertise of counsel and the amount of time involved.  The court may also consider whether the amount requested is based upon unnecessary or duplicative work.” (Wilkerson v. Sullivan (2002) 99 Cal.App.4th 443, 448.) “The basis for the trial court's calculation must be the actual hours counsel has devoted to the case, less those that result from inefficient or duplicative use of time.” (Horsford v. Board Of Trustees Of California State University (2005) 132 Cal.App.4th 359, 395.)  “The law is clear, however, that an award of attorney fees may be based on counsel's declarations, without production of detailed time records.” (Raining Data Corp. v. Barrenechea (2009) 175 Cal.App.4th 1363, 1375.)

Melendez is Entitled to Recover Prevailing Party Attorneys’ Fees

Section 8 of the Agreement for Joint Development of Real Estate between Lidia Melendez, Javier Perez, and Victor Valle provides: “[i]n the event of any controversy or claim respecting this agreement or in connection with the PROPERTY or the PROJECT, the prevailing party shall be entitled to reasonable attorneys’ fees in addition to any other damages or relief obtained . . .” (Oronsaye Decl. Ex. 101.) In opposition, Defendant concedes Melendez is the prevailing party. (Opp. at 2:10.) Accordingly, Melendez has established a contractual basis for attorneys’ fees. As a motion for attorneys’ fees, the motion was timely filed. (Cal. R. Ct., rule 3.1702.)

In opposition, Perez contends recovery of attorneys’ fees is barred under the rules of professional conduct based upon Oronsaye’s representation of both Plaintiff Cojulun and Defendant/Cross-Complainant Melendez during a portion of this litigation. (Opp. at 6:16-7:2.) However, the only relevant case authority cited by Perez, A.I. Credit Corp., Inc. v. Aguilar & Sebastinelli (2003) 113 Cal.App.4th 1072, 1079, involved a case where counsel was actually disqualified in the proceeding: “[t]he general rule is that an attorney disqualified for violating an ethical obligation is not entitled to fees.” Here, Melendez’s counsel was never ordered disqualified.

Moreover, Perez does not demonstrate he has standing to assert the alleged conflict. (Kennedy v. Eldridge (2011) 201 Cal.App.4th 1197, 1204 (“in California ‘where the ethical breach is ‘manifest and glaring’ and so ‘infects the litigation in which disqualification is sought that it impacts the moving party's interest in a just and lawful determination of [his or] her claims’ [citation], a nonclient might meet the standing requirements to bring a motion to disqualify based upon a third party conflict of interest or other ethical violation.’”) quoting Great Lakes Construction, Inc. v. Burman (2010) 186 Cal.App.4th 1347, 1357.) Nor does Perez provide any excuse for waiting until the fee motion to briefly raise the issue. (Liberty National Enterprises, L.P. v. Chicago Title Ins. Co. (2011) 194 Cal.App.4th 839, 844 (“attorney disqualification can be impliedly waived by failing to bring the motion in a timely manner.”).) The motion shall not be denied on this basis.

The Court also declines Perez’s request to deny the fee claim altogether based upon Melendez’s counsel’s contradictory declarations and alleged inflated billing. The Court addresses the proper hourly rate and reasonable fee herein.

All Claimed Hourly Rates are Unreasonable and Shall Be Reduced

“The reasonable hourly rate is that prevailing in the community for similar work.”  (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095.) “The experienced trial judge is the best judge of the value of professional services rendered in [her] court.” (Ibid.)

The fee request is supported by the declaration of attorney Christian Oronsaye and his firm’s billing records. (Oronsaye Decl. ¶¶ 2-34, Ex. 102-103.)

In opposition, Perez provides an expert declaration from Andre E. Jardini, who concludes “the maximum rate for Oronsaye should be $350 an hour. The new associate rate should be no more than $225 an hour. Time for paralegal duties should be charged at no more than $115 an hour. Translation services (by paralegals) have a market value of $35 an hour.” (Jardini Decl. ¶ 8.) Jardini’s declaration is not binding on the issue of a reasonable fee. “The value of legal services performed in a case is a matter in which the trial court has its own expertise. [Citation.] The trial court may make its own determination of the value of the services contrary to, or without the necessity for, expert testimony.” (Melnyk v. Robledo (1976) 64 Cal.App.3d 618, 623.)

Oronsaye’s time was billed at $650.00 per hour for pre-trial matters and $850.00 per hour for trial and post-judgment matters. (Oronsaye Decl. ¶ 6.) Perez notes that the hourly rates charged by Melendez’s counsel are substantially higher than those charged by Perez’s counsel. (Opp. at 8:9-12.) However, opposing counsel’s rates are not dispositive. (Goglin v. BMW of North America, LLC (2016) 4 Cal.App.5th 462, 473–474 (“Although BMW North America and BMW San Diego presented evidence they paid their counsel much lower hourly rates, the trial court was not obliged to accept this evidence as conclusive of the appropriate hourly rate for the work performed by Goglin's counsel.”).)

However, Perez also provides Oronsaye’s prior declarations, dated December 7, 2020 and May 24, 2021, filed in this case to support attorneys’ fee requests in connection with several discovery motions. (RJN Ex. 5, 7, 9, and 11.) In each of these declarations, under penalty of perjury, Oronsaye stated the “normal hourly rate,” without qualification, was $350.00 per hour. (Ibid.) This Court found the hourly rate reasonable and awarded discovery sanctions based upon that hourly rate. (RJN Ex. 6, 8, 10, 12.) Oronsaye provides no reasonable basis for the increase in hourly rates from the $350.00 sought in several prior motions to the $650.00 and $850.00 sought in the instant motion. In the unverified reply memorandum, Melendez states “the fees were specific for the said Motions and those fees were never computed into the overall attorney fees and costs. Because of the nature of the motions, the rates were significantly reduced.” (Reply at 2:19-21.) This Court is not persuaded by counsel’s unsubstantiated, after the fact, qualification.

Perez also notes that Oronsaye had less than two years of experience practicing law in the United States when he began billing on this case, having been admitted to practice law in Nigeria in May 2007 prior to admission to the California Bar in 2015. (Opp. at 8:14-27; Oronsaye Decl. ¶ 3 n.1.)

Consistent with this Court’s prior fee orders and based upon Oronsaye’s prior representations to this Court, Oronsaye’s level of experience, and the prevailing rate for legal services in Los Angeles, the Court finds the reasonable hourly rate for Oronsaye to be $350.00 for all work performed in this matter.

Attorney Kingsley Opia Enwemuche’s time was billed at $450.00 per hour. (Oronsaye Decl. ¶ 7.) Oronsaye did not provide any information regarding Enwemuche’s experience in support of the motion or the basis for the rate claimed. However, based upon Enwemuche’s bar number, it is clear that Enwemuche has been licensed for less time than Oronsaye. According to the California State Bar’s website, Enwemuche was first admitted to practice law on November 16, 2021. (RJN Ex. 19.) Enwemuche’s only billing entry was made a five months later on April 20, 2022. (Oronsaye Decl. Ex. 102 at 13.) In opposition, Perez’s expert suggests an hourly rate of $225.00, which the Court finds reasonable and commensurate with the prevailing market rate for attorneys’ with Enwemuche’s level of experience.

Melendez also seeks $250.00 per hour for work performed by Olamide Oladimeji, Douglas Atebata, Ninette Reyes, and Abdul Garba, who Oronsaye describes as both paralegals and assistants. (Oronsaye Decl. ¶ 9.) These fees are also recoverable. (See Guinn v. Dotson (1994) 23 Cal.App.4th 262, 269 (“awards of attorney fees for paralegal time have become commonplace in California.”’); Roe v. Halbig (2018) 29 Cal.App.5th 286, 312 (“paralegal fees may be awarded as attorney’s fees if the trial court deems it appropriate”).) As with Oronsaye’s fees discussed above, Oronsaye previously averred that Ninette Reyes’ hourly rate was $150.00. (RJN Ex. 5, 7, 9, and 11.) Oronsaye has not provided any additional information regarding Olamide Oladimeji, Douglas Atebata, or Abdul Garba. However, Reyes was the primary timekeeper among the paralegal/assistants and appears representative of the others. The Court finds the reasonable hourly rate for Olamide Oladimeji, Douglas Atebata, Ninette Reyes, and Abdul Garba to be $150.00.

Melendez’s Claimed Paralegal Hours are Unreasonable and Shall be Reduced

Melendez claims 192.97 hours of paralegal time from March 2, 2017 to the present. (Mot. at 8:26, Oronsaye Decl. Ex. 103.)

Melendez’s descriptions of time spent by paralegals is inconsistent. In the motion and Oronsaye’s declaration, Melendez indicates they are “requesting paralegal fees/expenses of $118,032.50, representing work time at $250.00/hr for a total of 192.97 hours.” (Mot. at 8:25-26; Oronsaye Decl. ¶ 9.) The spreadsheet provided by Melendez that itemizes paralegal time concludes with an hourly total of 192.97 and a dollar total of $118,062.50. (Oronsaye Decl. Ex. 102.) In opposition, Perez notes that 192.97 hours at the purported $250.00 rate would total $48,242.50. In reply, “Plaintiff concedes that the total amount for the paralegal hours is $48,242.50.” (Reply at 2:14.) The Court notes the total hours in the spreadsheet is not accurate as the entries far exceed 192.97 hours. However, Melendez has chosen to assert a reduced number of hours for paralegal time.

As argued by Perez, there are many paralegal entries wherein Ninette Reyes provided Spanish translation for the client, but Melendez represented in the verified cross-complaint that she could speak, write, and understand English. (Opp. at 12:25-26; Cross-Compl. ¶ 8.) Melendez did not require an interpreter at trial. (Thompson Decl. ¶ 31.) Melendez provides no authority demonstrating translation services by an attorney’s staff are recoverable as attorneys’ fees and does not demonstrate the services were reasonably necessary considering Melendez’s ability to speak, write, and understand English. Melendez argues in the motion that “[t]he time spent by plaintiffs' counsel's staff performing paralegal work is also properly recoverable” and suggests “work that may be performed by a paralegal, . . . includes, for example, ‘factual investigation, including locating and interviewing witness’s assistance with depositions interrogatories, and document production; compilation of statistical and financial data; checking legal citations; and drafting correspondence.” (Mot. at 12:21-13:1.) However, most of the descriptions in Oronsaye’s records involve translations, collating papers, and scheduling meetings, work not falling within the typical responsibilities of a paralegal nor warranting a paralegal rate. Perez’s counsel provides a review of the paralegal entries and identifies 52.6 hours of time “that appear to be more in the line of traditional paralegal work.” (Thompson Decl. ¶ 29, Ex. 9.) The Court finds Thompson’s analysis underinclusive.

The Court has reviewed the entries in the paralegal billing statement and finds 69.8 hours to be reasonable and compensable, totaling $10,470.00 at the applicable $150.00 hourly rate.

Melendez’s Claimed Attorney Hours are Unreasonable and Shall be Reduced

Melendez claims 938.10 hours for attorney Oronsaye  and 10.72 hours for attorney Enwemuche from March 2, 2017 to the present. (Oronsaye Decl. Ex. 102.)

As noted by Perez, Oronsaye initially appeared in this case as counsel for Plaintiff Rosa Cojulun. (RJN Ex. 1.) Oronsaye’s billing entries submitted in support of Melendez’s fee claim indicate Oronsaye improperly included fees incurred while representing Cojulun, not Melendez. Melendez was not personally served with the initial complaint in this action until April 5, 2017 and did not file an answer until February 7, 2018 when Melendez answered the Second Amended Complaint. An entry dated March 18, 2017 appears to confirm Oronsaye was not Melendez’s counsel at the time, billing for a “Meeting with Counsel for Liria Melendez.” (Oronsaye Decl. Ex. 102.) Accordingly, Oronsaye’s entries prior to April 5, 2017 are not recoverable by Melendez and the Court reduces the claimed hours by 28.13 hours or $9,845.50. Perez’s contention that the fees should be excluded through December 13, 2017 is unpersuasive as it is not unreasonable to incur attorneys’ fees after being served but prior to a first appearance.

Perez contends Oronsaye billed excessive amounts related to demurrers and motions between Perez and Plaintiff Cojulun, where Melendez was not the moving or opposing party. (Opp. at 11:21-12:7.) Specifically, Perez identifies his demurrer to the Plaintiff Cojulun’s First Amended Complaint, for which Oronsaye billed 20.15 hours. Perez demurred to every cause of action in the First Amended Complaint, whereas Melendez was only named as a defendant to the sixth cause of action for quiet title and the seventh cause of action for declaratory relief. Perez identifies his motion for summary adjudication involving the first and second causes of action in the Third Amended Complaint, for which Oronsaye billed 21.5 hours. The first and second causes of action were not directed toward Melendez. Perez further identifies his motion for reconsideration of the Court’s order on his motion for summary adjudication for which Oronsaye billed 12.5 hours.

In reply, Oronsaye fails to respond to this argument and does not provide the Court with any reasonable justification for the extensive time spent researching other parties’ motions. There is no reasonable benefit to Melendez for Oronsaye to have spent 54.15 hours reviewing and conducting legal research into motions that have no bearing on Melendez’s defense or affirmative claims. This time is excessive and unreasonable. The Court finds one hour for each of the three motions to be the reasonable amount of time for counsel to review the documents and orders related to the motions. Accordingly, the Court further reduces the claimed hours by 51.15 or $17,902.50.

Perez summarily contends Oronsaye spent “excessive time” preparing Melendez’s answer to the Second Amended Complaint, the Cross-Complaint, the judgment, and in monthly meetings with the client, and trial dates. (Opp. at 12:8-22.) The supporting declarations summarily identify entries and deem them excessive, unreasonable, overhead, or clerical. (Jardini Decl. ¶¶ 53-76.) The Court is not persuaded and finds these entries by Oronsaye to be actually incurred, reasonable, and compensable.

Perez notes that his 5-hour deposition was billed at 10.72 hours. (Opp. at 2 n.2; 11:19-20.) However, the relevant billing entry also includes the review of exhibits for the deposition. (Oronsaye Decl. Ex. 102.) The Court finds no basis to reduce the fees claimed for the deposition.

Perez further argues the fee includes entries related to a separate unlawful detainer case, Los Angeles Superior Court Case No. 17P03030, to which Melendez was not a party. (Opp. at 13:11-19.) Perez identifies 12.96 hours attributed to such tasks. (Ibid.) The Court does not find these entries unreasonable within the context of Melendez’s litigation regarding the property at issue. The Court related the UD action to this action on August 29, 2017. Accordingly, the Court declines to further reduce the claimed fees on this basis.

Perez summarily contends a 50 percent reduction in fees is warranted because Melendez was successful on three of the six causes of action that went to trial. (Opp. at 12:21-23.) Perez cites Californians for Responsible Toxics Management v. Kizer (1989) 211 Cal.App.3d 961, 975, in which the Court of Appeal merely found “[w]e cannot say that a 35 percent fractional multiplier is arbitrary or bears ‘no reasonable connection between the lodestar figure and the fee ultimately awarded.’” Nothing in that case requires the reduction urged by Perez. Moreover, Perez does not attempt to separate fees related to the unsuccessful claims. “When the liability issues are so interrelated that it would have been impossible to separate them into claims for which attorney fees are properly awarded and claims for which they are not, then allocation is not required.” (Akins v. Enterprise Rent-A-Car Co. of San Francisco (2000) 79 Cal.App.4th 1127, 1133.) Perez has not demonstrated that Melendez’s fees should be reduced on this basis.

Taking into account the reductions identified herein, the Court finds the total lodestar fee to be  $313,469.00.

A Lodestar Multiplier is Not Warranted

The lodestar amount “may be adjusted by the court based on factors including (1) the novelty and difficulty of the questions involved, (2) the skill displayed in presenting them, (3) the extent to which the nature of the litigation precluded other employment by the attorneys, [and] (4) the contingent nature of the fee award.” (Bernardi v. County of Monterey (2008) 167 Cal.App.4th 1379, 1399.) The purpose of any lodestar and adjustment thereto “is intended to approximate market-level compensation for such services” and is entirely discretionary. (Ibid.) “The purpose of a fee enhancement is not to reward attorneys for litigating certain kinds of cases, but to fix a reasonable fee in a particular action.” (Weeks v. Baker & McKenzie (1998) 63 Cal.App.4th 1128, 1171-72.) Multipliers are typically considered in statutory fee claims.

Melendez’s counsel demonstrated skill commensurate with their experience. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1139 (“a trial court should award a multiplier for exceptional representation only when the quality of representation far exceeds the quality of representation that would have been provided by an attorney of comparable skill and experience billing at the hourly rate used in the lodestar calculation.”).) While “[t]he ‘results obtained’ factor can properly be used to enhance a lodestar calculation where an exceptional effort produced an exceptional benefit,” (Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553, 582), the litigation in this case does not satisfy this high bar. Moreover, as noted by Perez, Melendez was unsuccessful on several claims, which could act as a negative multiplier. (Kizer, supra, 211 Cal.App.3d at 975.) Melendez does not adequately evidence that the instant litigation significantly precluded counsel from other employment and the time entries over the length of this litigation do not support such a finding. As noted by Perez, while Melendez’s memorandum states there was a contingent risk, Melendez provides no specific evidence supporting this claim. (Oronsaye Decl. ¶¶ 1-34.)

The Court finds a lodestar multiplier is not warranted. Melendez’s counsel is adequately compensated by the lodestar fee.

Costs Are Not Properly Awarded

As argued by Perez, Melendez did not file a memorandum of costs. (Opp. at 5:5-6:3.) Melendez was required to file a memorandum of costs within 15 days after service of notice of entry of judgment. (Cal. R. Ct., rule 3.1700(a)(1).) Melendez’s failure to do so precludes recovery of costs available pursuant to Code of Civil Procedure section 1033.5(a). (See Kaufman v. Diskeeper Corp. (2014) 229 Cal.App.4th 1, 6 n.2 (“We agree with the trial court that Diskeeper was required to file a memorandum of costs in order to recover the other costs and expenses it sought, and that Diskeeper's failure to do so worked a forfeiture regarding them.”); Anthony v. City of Los Angeles (2008) 166 Cal.App.4th 1011, 1015 (“rule 3.1700 applies only to the items ‘allowable as costs’ that are listed in subdivision (a) of section 1033.5—that is, those cost items to which a party is entitled ‘as a matter of right.’”).)

The requested costs include: Filing Fees $495.00, Jury Fees $3,297.00, Copies $720.00, Process Server $200.00, Parking $920.00, Court reporter fee $11700, Deposition Costs $1,857.05, and “Others, toll, Phone bills, mileage, etc.” $125,000. (Oronsaye Decl. Ex. 102.) Of these claimed costs, filing fees, jury fees, process server fees, deposition costs, and court reporter fees fall within Code of Civil Procedure section 1033.5(a). Accordingly, Melendez is barred from recovering these costs by failing to timely file a cost memorandum.

Melendez contends, without authority or analysis, that “[f]or the same reasons as Plaintiff is entitled to their reasonable attorneys' fees, they are also entitled to recover their expenses under the Agreement, which expansive enough” and seeks $144,189.05 in costs and expenses. (Mot. at 19:1-28. See also Reply at 9:15-17 (“costs sought under the JVA that provides for an expansive recovery right including: ‘…any other damages or relief obtained whether or not such controversy or claim is litigated and prosecuted to judgement…’”).

However, the agreement does not provide for the recovery of costs or expenses: “[i]n the event of any controversy or claim respecting this agreement or in connection with the PROPERTY or the PROJECT, the prevailing party shall be entitled to reasonable attorneys’ fees in addition to any other damages or relief obtained . . .” (Oronsaye Decl. Ex. 101.) “Costs and attorney fees are mutually exclusive, and the statutory prohibition contained in Code of Civil Procedure section 1033.5, subdivision (b)(1), cannot be avoided by characterizing costs as an element of attorney fees.” (First Nationwide Bank v. Mountain Cascade, Inc. (2000) 77 Cal.App.4th 871, 878. See also People v. United States Fire Ins. Co. (2012) 210 Cal.App.4th 1423, 1428 (“In other words, attorney fees do not include costs and costs do not include attorney fees.”).) Costs and expenses are also not reasonably characterized as “damages or relief obtained.” The Court rejects Melendez’s expansive interpretation of the parties’ agreement.

In reply, Melendez cites Code of Civil Procedure section 1033.5(c)(4), which provides “[i]tems not mentioned in this section and items assessed upon application may be allowed or denied in the court's discretion.” (Reply at 9:24-28.) However, Melendez solely provided receipts for jury deposition costs, jury fees, a court transaction fee, and court reporter fees, which are addressed above. (Oronsaye Decl. Ex. 102, 104.) To be allowable as costs, they must be incurred, reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation, and reasonable in amount. (Code Civ. Proc. § 1033.5(c).) Melendez bore the burden on these issues as to all costs not expressly authorized by statute. (See Nelson v. Anderson (1999) 72 Cal.App.4th 111, 132.) Summarily claiming costs for copies, parking, and “Others, toll, Phone bills, mileage, etc.” as reasonable and necessary, (Oronsaye Decl. ¶ 10), does not meet this burden. Moreover, copy charges, except in specified instances not described here, are expressly not recoverable. (Code Civ. Proc. § 1033.5(b)(3).) The same is true for “phone bills.” (Ibid.) Parking charges, mileage, and tolls are also generally not recoverable costs. (Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 775–776 (“Routine expenses for local travel by attorneys or other firm employees are not reasonably necessary to the conduct of litigation.”).)

Melendez’s request for costs and expenses is DENIED in its entirety.