Judge: Monica Bachner, Case: BC652020, Date: 2022-09-01 Tentative Ruling

Case Number: BC652020    Hearing Date: September 1, 2022    Dept: 71

Superior Court of California

County of Los Angeles

DEPARTMENT 71

TENTATIVE RULING

McLear’s motion for attorneys’ fees against Esos and Silverstein is granted in the reduced total amount of $153,909.  The request to stay the enforcement of the fee award for 70 days is granted.  

Prencipe’s motion for attorneys’ fees against Esos and Silverstein is granted in the reduced total amount of $69,788.  The request to stay the enforcement of the fee award for 70 days is granted.  

          Two motions for attorneys’ fees are presently before the Court.  McLear & Co., Inc. (“McLear US”) and McLear, Ltd. (“McLear UK”) (collectively, “McLear”) move for an order granting them attorneys’ fees in the amount of $297,664.80 against Plaintiff Esos Rings, Inc. (“Esos Rings”) and Cross-Defendant Michelle Silverstein (“Silverstein”) (collectively, “Esos Parties”) based on the Court’s November 9, 2021 ruling on the motion for terminating sanctions brought by McLear and joined by Defendant Joseph Prencipe (“Prencipe”). (Notice of Motion, pgs. 1-3.)  Prencipe separately moves for an award of attorneys’ fees against Esos Parties in the total amount of $73,006 reflecting $58,789 incurred in connection with the terminating sanctions motion and $14,217 incurred in connection with the instant motion. (Notice of Motion, pgs. 1-2; Motion, pg. 1.)

1. McLear’s Motion for Attorneys’ Fees

    

   McLear moves for an award of attorneys’ fees in the amount of $297,664.80 against Esos Parties, jointly and severally, pursuant to C.C.P. §2023.030 and the Court’s November 9, 2021 ruling on the Motion for Terminating Sanctions brought by McLear and joined by Prencipe (“Sanctions Motion”).

    

   McLear’s 4/1/22 evidentiary objections to the Declaration of Jacqueline S. Vinaccia (“Vinaccia”) in its entirety are overruled. McLear’s individual evidentiary objections to the Declaration of Vinaccia are overruled as to Nos. 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42 and sustained as to Nos. 13, and 14. [The Court notes the evidentiary objections are misnumbered, and Nos. 41 and 42 reflect the last two objections, which are numbered as 26 and 26 in McLear’s filing.]

    

   Background

    

   This case involves a dispute between two separate groups of parties over the rights to U.S. Pat. No. 9,313,609 (“the 609 Patent”), which was invented and owned by Prencipe. On February 27, 2017, Plaintiff filed its initial complaint against Prencipe and McLear US (collectively, “McLear Parties”) alleging they exploited the ‘609 patent and denied its assignment to Plaintiff, diminishing its value and preventing Esos from exploiting its rights.  On April 18, 2017, McLear Parties filed their initial cross-complaint against Esos Parties.  On October 26, 2018, Plaintiff filed the operative SAC, in which McLear UK was also named as a defendant.

    

   On November 9, 2021, the Court granted McLear Entities’ motion for evidence sanctions, in part, joined by Prencipe.  Specifically, the Court ruled that McLear Entities and Prencipe were entitled to an evidence sanction prohibiting Esos Parties from introducing evidence supporting their claim that Exhibit D to the SAC is a true and correct copy of the Executed Second Assignment but denied their other evidentiary sanctions requests.  The Court also denied McLear’s request for terminating sanctions.  Finally, the Court found Silverstein’s deletion of documents that were subject to a pending subpoena and motion to quash warranted an award of monetary sanctions against Esos.  Specifically, the Court ruled McLear was entitled to an award of monetary sanctions for reasonable attorneys’ fees McLear incurred in bringing its motion for terminating sanctions and ordered Esos to pay for fees McLear incurred in bringing its Sanctions motion.  McLear filed the instant fee motion on January 5, 2022.  On March 25, 2022, Counsel for Esos Parties filed an opposition on Esos’s behalf only; however, the opposition raises arguments on behalf of Silverstein as well.

    

   The Court notes McLear cites to “this” Court’s December 21, 2018 reduced award of $100,000 in attorneys’ fees and costs to Esos for prevailing on its Anti-SLAPP motion, fees the Court deemed were reasonable.  (Motion, pg. 1, fn. 1.)  The Court clarifies that in December 2018, this case was assigned to Department 55, not Department 71, and Judge Mackey awarded $100,000 of the $142,211.20 in requested fees.  (12/21/18 Minute Order.)  McLear also notes it paid Esos an additional $82,500 in attorneys’ fees Esos asserted having incurred on McLear’s appeal of the Anti-SLAPP ruling given Esos intended to file a motion for an additional $120,000 in fees.  (Motion, pg. 1, fn. 1.)  McLear asserts Esos’s claim of having incurred $202,000 in connection with its Anti-SLAPP motion and related appeal demonstrates the fees requested by McLear are reasonable. (Motion, pg. 2, fn. 1 (cont.).) 

            

             Attorneys’ Fees Motion

    

   The calculation of attorneys’ fees is based on the lodestar method, which multiplies the number of hours reasonably expended by a reasonable hourly rate. (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1064, 1094-95; Lealao v. Beneficial California, Inc. (2000) 82 Cal.App.4th 19, 26.) “The lodestar is the basic fee for comparable legal services in the community; it may be adjusted by the court based on factors including, as relevant herein, (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, (4) the contingent nature of the fee award. (Graciano v. Robinson Ford Sales (2006) 144 Cal.App.4th 140, 154.) “The purpose of such adjustment is to fix a fee at the fair market value for the particular action.” (Ibid.) “In effect, the court determines, retrospectively, whether the litigation involved a contingent risk or required extraordinary legal skill justifying augmentation of the unadorned lodestar in order to approximate the fair market rate for such services.” (Ibid.) An attorney’s time spent and hourly rate are presumed to be reasonable. (Mandel v. Lackner (1979) 92 Cal.App.3d 747, 761.) 

    

   McLear argues the award of monetary sanctions against Esos should also be imposed against Silverstein, jointly and severally, given her role in the deletion of files at issue in the Sanctions Motion.  (Motion, pg. 1.)  McLear also asserts it is entitled to recover the attorneys’ fees incurred in uncovering Silverstein’s deletions of evidence in addition to the fees incurred in bringing the Sanctions Motion.  (Motion, pg. 1.)  In support of the fee request, McLear submitted the Declaration of David Harford (“Harford”) of McLear’s counsel Bryan Cave Leighton Paisner LLP, (“Bryan Cave”), which attaches copies attorneys’ fee spreadsheets in this matter as Exhibit 1 and sets forth his experience and $625 hourly rate as well as the experience and hourly rates of other Bryan Cave attorneys who worked on the matter including Christopher Dueringer (“Dueringer”) at $780, Kristin Webb (“Webb”) at $525, Christian Bromley (“Bromley”) at $485, and Makaela O’Connell (“O’Connell”) at $390. (Decl. of Harford ¶¶2-8, Exh. 1 [Billing Invoice].) 

    

   The Harford Declaration includes a chart summarizing the total approximate fees for each task purportedly associated with the Sanctions motion including: (1) $29,266.50 in connection with the airSlate subpoena; (2) $6,197.50 in connection with opposing the motion to quash the airSlate subpoena; (3) $4,690 in opposing Esos Parties’ objections to the denial of the motion to quash; (4) $9,985 in opposing Esos Parties’ motion to block use of pdfFiller documents; (5) $5,736 in opposing Esos Parties’ objection to the discovery referee’s order; (6) $21,379 to oppose Esos’s motion for protective order; (7) $25,032.50 to depose Silverstein; (8) $154,277.50 for the Sanctions Motion; (9) $19,630.50 in drafting the instant fee motion; and (10) $21,470.30 in total costs associated with the deposition ($5,682.75), prior motion filing fees ($501.64), discovery referee costs ($13,041), and filing fees and court reporter costs for the Sanctions Motion and instant fee motion ($2,244.91).  (Decl. of Harford ¶¶15, 17-24, 27.)  Based on the above amounts, Harford declares McLear incurred $92,275.39 to uncover Silverstein’s spoilation of evidence, while McLear incurred $205,419.41 in fees and costs in connection with the Sanctions Motion and the instant fee motion.  (Decl. of Harford ¶¶29-31.)  In support of these fees, McLear attaches Exhibit 1, a 24-page invoice billing statement for fees incurred from 6/23/20 to 11/11/21, which color codes certain entries based on subject matter.  Exhibit 1 includes color coding to indicate the following categories of fees: (1) Orange: Motion to Quash PdfFiller Subpoena, (2) Yellow: Objections to 8/30/20 Order, (3) Green: 12/15/20 Motion for Protective Order Re: Esos PMK Depo, (4) Blue: 1/21/21 Motion and Hearing on 7/16/21, and (5) Non-Highlighted/White: Sanctions Motion. As such, any non-highlighted sections of Exhibit 1 are presumed to be included in McLear’s fee request for the Sanctions Motion. The Court notes page 21 of Exhibit 1, which is blue highlighted, appears to involve fees for the instant fee motion.  Finally, pages 23-24 of Exhibit 1 set forth costs McLear asserts it incurred in connection with the Sanctions Motion and underlying discovery matters.

    

             In opposition, Esos argues McLear’s requested fees exceed the scope of the Court’s order, by seeking fees not incurred in connection with bringing the Sanctions Motion, by seeking fees individually against Silverstein, and by seeking costs and other non-attorney’s fees.  Esos asserts McLear is at most entitled an attorneys’ fees award of $78,597.50, reflecting the sum of what Esos asserts are supported fees in the amounts of $65,299.50 for the Sanctions Motion, $13,298 for the fee motion, based on 132.55 total hours incurred at the claimed hourly rates (except for O’Connell, which Vinaccia mistakenly reduced on the belief she was a paralegal).  (Opposition, pgs. 5, 9, 18; Decl. of Vinaccia ¶¶98, 101.)  While Esos disputes costs should be awarded, it argues that the only applicable costs would be those incurred in connection with the Sanctions Motion, which it asserts should be reduced to $1,425.69.  (Opposition, pg. 9; Decl. of Vinaccia ¶98, Exh. E.) 

            

             McLear is entitled to an award of reasonable attorneys’ fees incurred in bringing its Sanctions Motion against Esos Parties.  However, the Court declines to award McLear all fees requested in the instant motion. As a preliminary matter, the Court limits the award to attorneys’ fees incurred in bringing the Sanctions Motion and declines to award fees and costs for work to uncover the evidence McLear submitted in support of its Sanctions Motion including underlying motion practice in this Court and before the discovery referee, as well as fees and/or costs incurred in connection with enforcing subpoenas and taking depositions.  The Court also declines to award costs.  The Court finds monetary sanctions may be imposed against Silverstein as well as Esos. In the underlying Sanctions Motion, McLear moved for monetary sanctions against both Silverstein and Esos and the Court ruled that “Esos,” the Ruling’s collective term for Silverstein and Esos, is to pay for fees McLear incurred in bringing the motion.  Accordingly, only the issue of the reasonableness of the attorneys’ fees for the Sanctions Motion ($154,277.50) and the instant fee motion ($19,630), totaling $173,909, remains.

    

   Reasonableness of Hours for Work Performed on the Sanctions Motion and Fee Motion

    

   Although detailed time records are not required, California Courts have expressed a preference for contemporaneous billing and an explanation of work. (Raining Data Corp. v. Barrenechea (2009) 175 Cal.App.4th 1363, 1375.) “Of course, the attorney's testimony must be based on the attorney's personal knowledge of the time spent and fees incurred. (Evid. Code, § 702, subd. (a) [‘the testimony of a witness concerning a particular matter is inadmissible unless he has personal knowledge of the matter’].)  Here, McLear asserts it incurred 291.7 hours in preparing and arguing the Sanctions motion, including time incurred in connection with communicating with pdfFiller and preparing its declaration in support of the motion, and that McLear incurred 31.2 hours (reflecting $19,630.50 in fees) in connection with the instant motion, with an anticipated additional $6,500 to review the opposition, prepare a reply, and appear at the hearing.  (Decl. of Harford ¶¶26-27, Exh. 1.)

    

   In opposition, Esos argues the fees requested for the Sanctions Motion are unreasonable, excessive, and not properly supported, and the Court should either deny the request in its entirety or reduce the fees incurred based on the following: (1) fees incurred in connection with litigation of the case at large as opposed to preparing the Sanctions Motion should be removed including 21.3 hours (reflecting $15,096 in fees) incurred in January 2021 for the airSlate deposition [Decl. of Vinaccia ¶¶81-84], (2) fees for duplicate and excessive preparation time for the hearing should be reduced by 50% (from 35.5 hours [reflecting $16,881] to 17.75 hours [reflecting $8,440.50]) [Decl. of Vinaccia ¶¶88-90], (3) Sanctions Motions fees that are vague, unsupported, obfuscated, and redacted should be struck because they could not be properly allocated (15.30 hours reflecting $8,630 in fees); [Decl. of Vinaccia ¶¶92-93], and (4) 149 hours (reflecting $93,062) in Sanctions Motion fees should be reduced by 50% (to 74.5 hours and $46,531) for being “excessive, duplicative…, and out of proportion to the very limited success of the motion” [Decl. of Vinaccia ¶¶91-94].  (Opposition, pgs. 17-18.)  Esos also argues the fees for the instant fee motion are excessive given fees were necessarily incurred in drafting parts of the motion that focus on requesting more fees than awarded in the Sanctions Motion as opposed to allocating incurred fees and accordingly, the Court should reduce the award by 6.6 hours reflecting $3,711 in fees for an award of $13,298.  (Opposition, pg. 18; Decl. of Vinaccia ¶¶64-68.)  Finally, Esos notes that costs were not awarded in the Sanctions Motion ruling, but the isolated costs relating to the Sanctions Motion should be reduced from $2,244.91 to $1,425.69. (Opposition, pg. 9; Decl. of Vinaccia ¶98.)

    

   In reply, McLear disputes the admissibility of the expert declaration of Vinaccia to support Esos’s assertion that fees should be reduced in any amount.  (Reply, pgs. 5-6.)  McLear also asserts monetary sanctions should be imposed against Silverstein as well as Esos given her role in deletion of documents and accordingly her misuse of the discovery process. (Reply, pgs. 6-7.)  McLear does not specifically address the six categories of reductions proposed by Esos based on the Declaration of Vinaccia based on (1) improper inclusion of general litigation fees, (2) excessive hearing fees, (3) reduction for redacted and/or vague time entries, (4) excessive Sanctions Motion preparation fees, (5) excessive fee motion preparation fees, and (6) excessive costs, and whether the claimed fees and hours were reasonably incurred and supported. 

    

   The Court finds McLear’s inclusion of fees incurred in matters that exceed the scope of the Sanctions Motion in its attorneys’ fees request and appear to be incurred with general litigation including the deposition of PdfFiller is unreasonable, and a reduction is warranted. The final award reflects this reduction. 

    

   As for Esos’s assertion that fees incurred to prepare for the Sanctions Motion hearing and to draft and prepare the Sanctions Motion itself should be reduced by 50% for being excessive and/or duplicative, the Court finds such a broad reduction is unsupported. The Court finds the billing entries are not so excessive and/or duplicative to warrant a 50% reduction.  However, there does appear to have been some duplicative work in connection with preparing for the hearing and drafting the Sanctions Motion, with multiple attorneys billing multiple hours to prepare for the initial and continued hearings as well as the many hours incurred in revising, reviewing, and editing the terminating sanctions motion. As such, some reduction of fees is warranted, and the final award reflects this reduction.

    

   As for the fees Esos identified as too obscured by redactions to allocate to the Sanctions or fee motions, the Court finds the Declaration of Vinaccia is not consistent in the amount she contends should be reduced from McLear’s billings for this purpose.  Notably, she declares she found 10.3 hours of entries, reflecting $4,987.50 in fees, for which redactions have made allocation impossible, while she also declares there were 15.3 hours reflecting $8,630 in Sanctions Motion fees that were also redacted. (Decl. of Vinaccia ¶¶55, 91.)  The Court notes the chart summarizing Vinaccia’s proposed reductions for fees includes a line item for “Redactions” in the amount of 10.3 hours or $4,987.50.  (Decl. of Vinaccia ¶99.)  In addition, a review of Exhibit 1 demonstrates that while many entries are redacted, this does not warrant entirely striking fees incurred in redacted entries.  Esos submits no evidence suggesting these redacted fees were not incurred in connection with the Sanctions Motion and/or fee motion to warrant striking them entirely.  Accordingly, a reduction for these fees is not warranted.

    

   As to Esos’s assertion that the fees incurred in connection with the instant fee motion are unreasonable, the Court finds the requested fees are somewhat excessive and a reduction is warranted; however, not in the amount proposed by Esos.  The final award reflects this reduction.

    

   Request to Stay Fee Award Over $5,000 Based on Intent to Appeal

    

   Esos asserts it intends to exercise its right of immediate appeal within 60 days of the fee award from the instant motion and accordingly requests that any fee order be stayed from execution for 70 days from the date of this ruling.  (Opposition, pg. 19; C.C.P. §§904.1(a)(12), 918; CRC Rule 8.14.)  Specifically, Esos argues that unrestrained enforcement by its competitor company will disrupt its orderly appeal and business operations, interfere with a potential right of offset by the upcoming jury trial, and given Esos is a small company it will need more time to secure a bond.  (Opposition, pg. 19; citing Drum v. Bleue (2003) 107 Cal.App.4th 1009, 1014.)  In reply, McLear asserts the Court should deny Esos Parties’ request to stay the fee award as improper and not sufficiently supported.  (Reply, pgs. 7-8.)  The Court, in its discretion, grants Esos’s request to stay the enforcement of the fee award for 70 days.  

    

   Total Reduction & Final Lodestar Determination

    

   Accordingly, McLear’s motion for attorneys’ fees is granted in the reduced total amount of $153,909, payable after 70 days.

    

2. Prencipe’s Motion for Attorneys’ Fees

    

   Prencipe moves for an award attorneys’ fees in the total amount of $73,006, reflecting the sum of $58,789 incurred in connection with the Sanctions Motion and $14,217 incurred in connection with the instant fee motion, based on the Court’s ruling on the Sanctions Motion.  In reply, Prencipe revises his attorneys’ fees request to the increased amount of $84,788 based on increased actual and anticipated costs of preparing the reply in the amount of $11,782.  (Reply, pg. 2; Reply-Decl. of Coleman ¶6.)

    

   The Court incorporates by reference the above discussion of the background of the action and the Sanctions Motion.

    

   Prencipe’s 4/1/22 evidentiary objections to the Declaration of Vinaccia in its entirety is overruled. Prencipe’s individual evidentiary objections to the Declaration of Vinaccia are overruled as to Nos. 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, and 32.

    

   Prencipe’s 4/1/22 request for judicial is denied as to the documents in the instant case file, for which there is no need to take judicial notice because the Court can always review the file for the case at hand.  (RJN, Exhs. A, B, C.)

    

   Attorneys’ Fees Motion

    

   Prencipe argues he is entitled to recover the attorneys’ fees he incurred in connection with his joinder to McLear’s Sanctions Motion, including fees incurred in connection with an underlying deposition of Silverstein, as well as fees incurred in preparing the instant motion.  (Motion, pgs. 3-6.)  In support of the fee request, Prencipe submitted the Declaration of Erin Coleman (“Coleman”) of Prencipe’s counsel Zweiback, Fiset & Coleman LLP (“ZFC”), which sets forth her experience and $495 hourly rate and the hours she incurred in the instant matter that are part of the fee request, totaling $31,185 for the Sanctions Motion and $8,959.50 for the instant fee motion.  (Decl. of Coleman ¶¶2, 26-32.)  Prencipe also submitted the Declaration of attorney Rachel Fiset (“Fiset”), which sets forth her experience and $495 hourly rate, as well as the hours she incurred in the instant matter that are part of the fee request totaling $23,364 for the Sanctions Motion and $3,217.50 on the instant fee motion.  (Decl. of Fiset ¶2, 3-10.)  In addition, Fiset attaches ZFC’s redacted invoice as Exhibit A to her declaration in support of the fees incurred.  Finally, Prencipe submitted the declaration of paralegal Ann Taylor (“Taylor”) in which she sets forth her experience, $200 hourly rate, and sets forth the hours she incurred that are part of the fee request totaling $4,240 for the Sanctions Motion and $2,040 for the instant fee motion. (Decl. of Taylor ¶¶2-9.) 

    

             In opposition, Esos argues Prencipe’s requested fees exceed the scope of the Court’s order, by seeking fees not incurred in connection with filing his Notice of Joinder to the Sanctions Motion and by seeking fees individually against Silverstein.  (Opposition, pg. 4.)  Esos asserts Prencipe is at most entitled an attorneys’ fees award of $25,107.25, reflecting the sum of what Esos contends are supported fees in the amounts of $9,934 for the Sanctions Motion, $7,965.50 for the fee motion, $400 for the joinder, and $6,807.75 for hearing preparation, based on 58.35 total hours incurred at the claimed hourly rates.  (Opposition, pgs. 4, 8; Decl. of Vinaccia ¶¶50, 101.) 

            

             Prencipe is entitled to an award of reasonable attorneys’ fees he incurred in his joinder to McLear’s Sanctions Motion against Esos Parties.  However, the Court declines to award Prencipe all fees requested in the instant motion. As a preliminary matter, the Court limits the award to attorneys’ fees incurred in bringing the Sanctions Motion and declines to award fees incurred in underlying matters, including the deposition of Silverstein.  The Court finds monetary sanctions may be imposed against Silverstein as well as Esos. In the underlying Sanctions Motion, McLear moved for monetary sanctions against both Silverstein and Esos and the Court ruled that “Esos,” the Ruling’s collective term for Silverstein and Esos, is to pay for fees Prencipe incurred in bringing the motion.  Accordingly, only the issue of the reasonableness of the attorneys’ fees for the Sanctions Motion joinder and the instant fee motion remains.

    

   Reasonableness of Hours for Work Performed on the Sanctions Motion Joinder and Fee Motion

    

   Esos argues the fees requested are unreasonable, excessive, and not properly supported, and the Court should either deny the request in its entirety or reduce the fees incurred based on the following: (1) fees incurred for the instant fee motion should be reduced to $7,965.50, which is the amount actually invoiced with 27.8 additional hours submitted in declaration and 12 additional hours anticipated unsupported by the invoices [Decl. of Vinaccia ¶¶29-31], (2) while 4.0 hours in fees for the Notice of Joinder are permissible, fees for the Sanctions Motion should be reduced as duplicative given Prencipe requests 48.2 hours for his attorneys to review the motion prepared by McLear, 5.5 hours of which Esos contends are valid, warranting a 50% reduction of 42.7 hours, resulting in an award of $9,934 for the Sanctions Motion and $400 for the joinder [Decl. of Vinaccia ¶¶40, 41, 44, 56], (3) fees incurred in preparing for the Sanctions Motion hearing are excessive and duplicative and warrant a 50% reduction of the fees requested from 28.4 hours to 14.2 hours, at $6,805.75 [Decl. of Vinaccia ¶¶45, 46], (4) Taylor’s paralegal fees for clerical tasks are not recoverable and should be reduced by 7.5 hours ($1,500) [Decl. of Vinaccia ¶¶37-39], (5) 12.1 hours, reflecting $5,989.50 in “counsel communications” should be excluded given they are overly redacted and excessive, (6) fees relating to the Silverstein deposition should be excluded or reduced by 50% (or $2,000) as not a cost of bringing or joining in the motion, and (7) other reductions including removing unsupported redacted entries and Taylor’s billings at an attorney rate [Decl. of Vinaccia ¶¶26, 28]. (Opposition, pgs. 10-12.)

    

   In reply, Prencipe disputes the admissibility of the expert declaration of Vinaccia to support Esos’s assertion that fees should be reduced in any amount.  (Reply, pgs. 1-2.)  Prencipe also asserts the requested fees are reasonable and argues Esos has not submitted competent evidence establishing that the fees claimed are duplicative to warrant a reduction by 50% or 100%. (Reply, pg. 3.)  Prencipe disputes that the requested fees struck by Vinaccia relating to the deposition of Silverstein were unnecessary to the Sanctions Motion and/or are not recoverable given the deposition was set for the purpose of addressing the pdfFiller documents. (Reply, pgs. 4-5.) Prencipe also argues that paralegal fees are permissible, and not clerical as asserted by Esos.  (Reply, pg. 5.)  Finally, Prencipe asserts the anticipated fees for the instant motion are reasonable and in fact higher than the amounts originally quoted.  (Reply, pg. 6.)  The Court notes the initially filed declarations anticipated incurring 12 hours in connection with the reply; however, in reply, Prencipe asserts his counsel has already incurred 27.1 hours, with even more hours anticipated.  (Reply, pg. 6.) 

    

   The Court finds Prencipe’s inclusion of fees incurred in connection with Silverstein’s deposition of are not reasonable, and a reduction is warranted. Specifically, based on their declarations, Fiset and Coleman billed 11.4 hours at $495 per hour, or $5,643 in connection with the deposition and the fee award should be reduced by this amount. The final award includes this reduction. 

    

   Next, Esos asserts that fees incurred for the instant fee motion should be reduced based on an assertion that hours quoted in the declarations are not supported by the invoices.  The Court finds such a broad reduction is not warranted.  However, the Court finds billing over 34 hours for the instant fee motion, a nine-page motion with three supporting declarations, is excessive. In addition, billing over 30 total hours in connection with preparation of the reply alone is excessive. (Reply-Decl. of Coleman ¶¶2-5.)  While the instant motion and Declaration of Vinaccia was involved, over 60 hours of fees is unreasonable, and the Court finds a reduction is warranted. The final award reflects this reduction.

    

    As for Esos’s assertion that some of the fees incurred to assist in preparing the Sanctions Motion and in preparing for the hearing on the Sanctions Motion should be reduced by 50% for being excessive and/or duplicative, the Court finds such a broad reduction is unsupported. The Court finds the billing entries are not so excessive and/or duplicative to warrant a 50% reduction to 42.7 hours of the requested fees.  However, there does appear to have been some duplicative work in connection with preparing for the hearing and drafting the Sanctions Motion, with multiple attorneys billing multiple hours to prepare for the initial and continued hearings as well as the many hours incurred in revising, reviewing, and editing the terminating sanctions motion. As such, some reduction of fees is warranted, and the final award reflects this reduction.

    

   As for Taylor’s paralegal fees for purported clerical tasks, the Court finds the reduction imposed by Esos is overbroad; however, a reduction is warranted. A review of Taylor’s declaration and the invoice demonstrates that her billing entries include time billed for filing documents with the Court and preparing binders for a hearing, which are clerical tasks.  (Decl. of Taylor ¶¶4, 6.) The Court finds a reduction is warranted and the final award reflects this reduction.   

    

   As for the fees related to “client communications” that Esos contends are too obscured by redactions to allocate to the Sanctions or fee motions and are excessive, the Court finds a reduction on the basis that they are redacted is not warranted. Redactions in invoice descriptions does not warrant entirely striking fees incurred.  Esos submits no evidence suggesting these redacted fees were not incurred in connection with communications regarding the Sanctions Motion and/or fee motion to warrant striking them entirely.  In addition, the Court does not find these fees so excessive to warrant a reduction. Accordingly, a reduction for these fees is not warranted.

    

   Finally, Esos proposes other reductions based on removing redacted entries and based on Taylor once billing at an attorney rate. (Motion, pg. 12.)  However, the Court finds striking redacted entries is not supported. In addition, the Declaration of Vinaccia acknowledges that the error in the invoice is not repeated in the Declaration of Taylor, and that the fees requested in the motion correspond to the correct paralegal rate. (Decl. of Vinaccia ¶28.)  As such, a reduction on these grounds is not warranted.

    

   Request to Stay Fee Award Over $5,000 Based on Intent to Appeal

    

   As in its opposition to Prencipe’s attorneys’ fees motion, Esos asserts it intends to exercise its right of immediate appeal within 60 days of the fee award from the instant motion and accordingly requests that any fee order be stayed from execution for 70 days from the date of this ruling.  (Opposition, pg. 13; C.C.P. §§904.1(a)(12), 918 [Regardless of whether or not an appeal has been filed, “If the enforcement of the judgment… would be stayed on appeal only by the giving of an undertaking, a trial court shall not have power, without the consent of the adverse party, to stay the enforcement thereof pursuant to this section for a period which extends for more than 10 days beyond the last date on which a notice of appeal could be filed.”]; CRC Rule 8.14.)  Specifically, Esos argues that unrestrained enforcement by its competitor company will disrupt its orderly appeal and business operations, interfere with a potential right of offset by the upcoming jury trial, and given Esos is a small company it will need more time to secure a bond.  (Opposition, pg. 13; citing Drum v. Bleue (2003) 107 Cal.App.4th 1009, 1014.)  In reply, Prencipe asserts the Court should deny Esos Parties’ request to stay the fee award, because such a stay of enforcement of monetary sanctions requires a bond or undertaking to be submitted to the Court, and Esos Parties have submitted no evidence they have secured a bond or undertaking to effectuate the stay.  (Reply, pgs. 9-10; C.C.P. §917.1 [Unless an undertaking is given, the perfecting of an appeal shall not stay enforcement of the judgment or order in the trial court if the judgment or order is for… [m]oney or the payment of money…”]; Banks v. Manos (1991) 232 Cal.App.3d 123, 129.)  However, the cases and authority cited by Prencipe address a different situation than Esos Parties’ request—namely, whether execution of the judgment can be stayed pending the appeal.  Here, Esos Parties request a stay of only 70 days.  Indeed, once that stay expires, any stay pending appeal would require a bond or undertaking.  The Court, in its discretion, grants Esos’s request to stay the enforcement of the fee award for 70 days.  

    

    

   Total Reduction & Final Lodestar Determination

    

   Accordingly, given the revised request for attorneys’ fees in the amount of $84,788, Prencipe’s motion for attorneys’ fees is granted in the reduced total amount of $69,788, payable after 70 days.

    

    

   Dated:  September _____, 2022

                                                                                                                          

   Hon. Monica Bachner

   Judge of the Superior Court