Judge: Monica Bachner, Case: 21STCV11107, Date: 2023-03-01 Tentative Ruling
Case Number: 21STCV11107 Hearing Date: March 1, 2023 Dept: 71
Superior
Court of California
County
of Los Angeles
DEPARTMENT 71
TENTATIVE
RULING
|
ALEXA BROWN, vs. OLIVER MOUSSAZADEH, et al. |
Case No.:
21STCV11107 Hearing
Date: March 1, 2023 |
Plaintiff Alexa Brown (“Brown”)
(“Plaintiff”) moves for an order awarding
attorney fees against Defendants Oliver Moussazadeh (“Oliver”), Alexander Moussazadeh
(“Alexander”), Revilo Realty, Inc. (“Revilo Realty”), Alimon Williams
(“Williams”), Garth St. George Davis (“Davis”), and Kyle Lynn Boseman
(“Boseman”) (collectively, the “Broker Defendants”), jointly
and severally, in the amount of $238,134.00 representing a lodestar of $158,756.00
and a 1.5 multiplier enhancement, pursuant to C.C.P. §998 settlements reached
between Plaintiff and Broker Defendants. (Notice of Motion,
pg. 2; C.C.P. §998; Civil Code §1695.7.)
C.R.C. Violations
The C.R.C. contemplates only moving, opposition,
and reply papers. (C.R.C., Rule
3.1113(d).) Sur-replies are not contemplated by the rules and are thus not
permitted. Broker Defendants’ sur-reply was filed without leave of this Court
and as such will not be considered.
Moreover, the Court notes that it is not
appropriate to schedule an ex parte application for the date of the hearing on
the motion to request permission to file an extended brief. Such an application should have been filed in
advance. The Court in its discretion
chooses to consider the oversized brief. However, counsel is admonished to not
file oversized briefs in the future without obtaining prior court approval.
Request for Judicial Notice
Broker Defendants’ 2/15/23 request for judicial
notice is granted as to the Verified First Amended Complaint filed on March 9,
2021, in Bessellieu v. Elzy, Los Angeles County Superior
Court case number 21STCV04558; the Verified Complaint filed on March 5, 2021,
in Gloria Brown v. John Thomas, LLC,
Los Angeles County Superior Court case number 21CHCV0010; and the Verified
First Amended Complaint filed on July 9, 2021 in Fisher v.
O.Rhyan Capital Management, LLC, Los Angeles County Superior
Court case number 21VECV00409. (D-RJN,
Exhs. 1, 2, 3.)
Background
Plaintiff’s complaint arises from
the sale of her house in Lancaster, California (“Property”) and was filed on
the basis of the Home Equity Sales Contract Act (“HESCA”). On September 30, 2023, Broker Defendants
served statutory offers to compromise under C.C.P. §998 (the “998 Offers”). On October 26, 2021, Plaintiff settled with
Defendants involved in the sale of the Property via C.C.P. §998 settlement
offers. This Court entered judgments on
the accepted the §998 offers on June 23, 2022. Plaintiff filed the
instant motion on August 8, 2022. On
February 15, 2023, Broker Defendants filed their opposition. On February 22, 2023, Plaintiff filed her
reply. On February 24, 2023, Broker
Defendants filed an unauthorized sur-reply.
Motion
for Attorneys’ Fees
Pursuant
to HESCA, a prevailing equity seller is entitled to the recovery of “reasonable
attorneys’ fees and costs.” (Civ. Code
§1695.7.)
Here,
Plaintiff is the prevailing equity seller and is entitled to the recovery of
reasonable attorneys’ fees and costs.
(Civ. Code §1695.7.) A party
receiving a net monetary payment under a §998 settlement is a prevailing party.
(See Wong v. Thrifty Corp. (2002)
97 Cal.App.4th 261, 265 [discussing prevailing party on a contract].) Broker Defendants’ argument that the terms of
the Purchase Agreement preclude a fee award because Plaintiff failed to mediate
before commencing this litigation is unavailing. Defendant Oliver’s declaration attaching the
Purchase Agreement lacks foundation, does not set forth Defendant Oliver’s
personal knowledge of the Purchase Agreement, does not reference Defendant
Oliver or Defendant Revilo Realty, and is not signed by any of the Broker
Defendants. (See Decl. of
Moussazadeh, Exh. 1 [Purchase Agreement].)
The mediation provision of the Purchase Agreement does not apply to
“disputes or claims with Brokers” unless the brokers “in writing, agree to such
mediation prior to or within a reasonable time after the dispute or claim is
presented to the Broker.” (See Purchase
Agreement ¶22(A).) Broker Defendants
have not presented evidence they agreed in writing to mediate any dispute with
Plaintiff, and therefore the provision is not applicable to this motion. Moreover, there is an express exception to
the provision for “the filing of a court action to preserve a statute of limitations.”
(See Purchase Agreement ¶22(C)(2)).
Here, the action was filed the day before a possible expiration of the statute
of limitations: three years from the date of the resale of the Property, which
was alleged to violate Civil Code §1695.6(b). This Court previously found this action timely
on the basis of this analysis. (See 9/17/21 Minute Order, pg. 9 [“Plaintiff in
fact filed the Complaint on the last day possible such that the Complaint is
timely.”]) Accordingly, the mediation
provision does not bar recovery of Plaintiff’s fees.
Second,
Broker Defendants’ argument that the Complaint was based on false allegations
are improper on a post-judgment motion for attorneys’ fees, particularly a
motion based on a §998 offer. Further,
Plaintiff has standing under HESCA to bring the underlying claim for damages
because she was an equity seller under Civil Code §1695.7. (See Dagher v. Ford Motor Co. (2015)
238 Cal.App.4th 905, 916 [“The prerequisites for standing to assert statutorily-based
causes of action are determined from the statutory language, as well as the
underlying legislative intent and the purpose of the statute.”].) Under the statute, Plaintiff was entitled to pursue
equitable remedies beyond mere damages, including restitutionary and non-restitutionary
disgorgement. (Civ. Code §1695.7; see
Meister v. Mensinger (2014) 230 Cal.App.4th 831, 398 [restitutionary
disgorgement]; County of San Bernardino v. Walsh (2007) 158 Cal.App.4th
533, 542 [non-restitutionary disgorgement].) Here, Plaintiff expressly sought disgorgement
of the commissions paid to the Broker Defendants as well as any other
monies wrongfully received. (Decl. of Spencer, Exh. A at pgs. 28:23-25, 29:2).
A.
Reasonable Fees
“[T]the
fee setting inquiry in California ordinarily begins with the ‘lodestar,’ i.e.,
the number of hours reasonably expended multiplied by the reasonable hourly
rate. (PLCM Group v. Drexler
(2000) 22 Cal.4th 1084, 1095.) In making
this calculation, the reasonable hourly rate is the “prevailing rate for
private attorneys in the community” handling litigation of the same type. (Ketchum v. Moses (2001) 24 Cal.4th
1122, 1133.) The court may then adjust
that result by using a multiplier to enhance the total fee to be paid to
reflect circumstances specific to the case, such as the novelty of the questions
involved, the skill displayed by the attorneys, and the contingent nature of
the fee award. (Id. at pg. 1132; PLCM
Group, 22 Cal.4th at pg. 1095.)
Plaintiff’s
counsel declares: (1) Counsel Suzanne Burke Spencer’s hourly rate is $590 in
this matter, (2) Counsel Robert S. Sall’s hourly rate is $700, (3) Stephanie
Brault’s hourly rate is $305, (4) Michael A. Sall’s hourly rate is $350, and
(5) Derik Lewis’ hourly rate is $595. (Decl.
of Spencer ¶¶14-18; Decl. of Lewis ¶¶4-6.)
Plaintiff has
sufficiently demonstrated counsels’ hourly rates are reasonable in their
community of practice. (Decl.
of Spencer ¶¶14-18; Decl. of Lewis ¶¶4-6.)
Plaintiff
is entitled to recover her reasonable fees relating to the Broker Defendants,
but not for fees relating to other defendants.
For example, Plaintiff is entitled to recover for opposing the Demurrer
of Oliver, Alex, and Revilo, but is not entitled to fees spent in defending the
Motion to Strike of Financial Fitness and Hanigan. Similarly, Plaintiff is not entitled to
recover fees relating to correspondence with other defendants, propounding
discovery to other defendants, discovery motion practice from other defendants,
responding to discovery from other defendants.
The Court is not able to determine the amounts properly allocable to the
broker defendants because Plaintiff has not provided specific billing
information, but provided a summary.
This
matter is continued for Plaintiff to provide detailed billing information so
the Court can make a determination as to reasonable fees.
Dated: March _____, 2023
Hon. Monica Bachner
Judge of the Superior Court