Judge: Nathan R. Scott, Case: Kort v. Lee, Date: 2022-07-29 Tentative Ruling

Demurrer

Cross-defendants John Kort, Nancy Kort, and Ron Kort’s demurrer is overruled. 

Cross-defendants shall file and serve their answers within 10 days.

1st-2nd causes of action, intentional/negligent misrepresentation.  The FAXC states facts sufficient to constitute these causes of action.  (See FAXC ¶¶ 13-19, 21-26.)  Read liberally, it adequately alleges cross-defendants made a false promise to accept a $15,000 closing credit in lieu of repairs.

The FAXC does not show on its face that cross-complainant’s reliance on the alleged misrepresentation was unreasonable due to the statute of frauds. 

Knowledge and intent may be alleged with less specificity.   (Committee on Children’s Television, Inc. v. General Food Corp. (1983) 35 Cal.3d 194, 217.)  Agency may be alleged as a ultimate fact.  (Blickman Turkus, LP v. MF Downtown Sunnyvale, LLC (2008) 162 Cal.App.4th 858, 886.)

Cross-defendants’ request for judicial notice is granted. Judicial notice is limited to the existence, filing, and legal effect of the pleading, but not as to the truth of disputable matters stated therein.

Cross-complainants’ request for judicial notice is denied.

Cross-defendants shall give notice.

Motion for Attorney Fees

Cross-defendants John Kort, Nancy Kort, and Kort Family Trust’s attorney fee motion is granted in part.  (See Code Civ. Proc. § 425.16, subd. (c)(1).) 

Cross-Complainants, Jason Lee, Janet Choi Lee, and Hoon Lee shall pay $23,175 in reasonable attorney fees and $24 in reasonable costs to cross-defendants.

This award represents the lodestar analysis of 50 hours of reasonable work at a $350 reasonable rate plus 15 hours of reasonable work at a $550 reasonable rate, for a base award of $25,750.  (See Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131; PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095 [court values attorney fees].)

The court reduces the base award by 25% to account for the limited success of the motion, which was denied as to the pending misrepresentation claims.  (See Mann v. Quality Old Time Service, Inc. (2006) 139 Cal. App. 4th 328, 344; Moran v. Endres (2006) 135 Cal.App.4th 952, 954-955.)   That leave an revised base award of $19,312.50.

To that, the court applies a 1.2 multiplier to account for the contingency nature of the work.  (See Ketchum, supra, 24 Cal.4th at p. 1136.)  That leaves $23,175.

The court finds the $111,917.60 request for a combined 119.45 hours of work is excessive.  For example, cross-defendants request 17.25 hours to research the anti-SLAPP statute, 30 hours to draft the 9-page reply brief, and 19.2 hours to draft this fee motion.  The opposition notes:  “‘To the extent a trial court is concerned that a particular award is excessive, it has broad discretion to adjust the fee downward or deny an unreasonable fee altogether.”’  (Opp. at p. 8, quoting Ketchum, supra, 24 Cal.4th at p. 1138.)

Cross-defendants shall give notice.