Judge: Nick A. Dourbetas, Case: 21-01185121, Date: 2023-08-04 Tentative Ruling

Motion for Attorney Fees

Defendant/cross-complainant Viking Structural, Inc.’s (Viking) motion for attorney fees is GRANTED in the amount of $64,410. (See Civ. Code, § 1717.)

This motion is not premature. It is well established that a trial court retains jurisdiction to award attorney fees despite the filing of a notice of appeal from a judgment or a final order in the case, and this remains true even though the prevailing party at trial may not be the prevailing party after the appeal. (Korchemny v. Piterman (2021) 68 Cal.App.5th 1032, 1052; Nazemi v. Tseng (1992) 5 Cal.App.4th 1633, 1639 and Bankes v. Lucas (1992) 9 Cal.App.4th 365, 368-369, both superseded by statute on other grounds as stated in Lee v. Wells Fargo Bank (2001) 88 Cal.App.4th 1187, 1197; Hoover Community Hotel Development Corp. v. Thomson (1985) 168 Cal.App.3d 485, 487.) 

There is no dispute that both the complaint and cross-complaint were actions on a contract. Plaintiff/cross-defendant Critical Path Construction, LLC’s (CPC) complaint alleged one cause of action for breach of a written Master Services Agreement (MSA). Viking’s cross-complaint alleged two causes of action for (1) breach of the same MSA, and (2) a quasi-contract common count based on the same agreement. There is also no dispute that Viking prevailed on both the complaint and cross-complaint, and that it obtained a judgment in its favor and against CPC on its cause of action for breach of the MSA. (See 1/20/23 Statement of Decision (SOD).)

Viking is therefore entitled to its attorney fees pursuant to the fee provision in the MSA. (See Civ. Code, § 1717; Hsu v. Abbara (1995) 9 Cal.4th 863, 865-866; see also Compl. ¶ 7, Ex. 1 [MSA § 41]; XC ¶¶ 12-13; 1/20/23 SOD.)

The Court determines the amount of reasonable attorney fees via the usual lodestar method, irrespective of whether the fees have actually been “incurred” and/or paid. (See PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1094-1095 [lodestar method]; see also id. at pp. 1092-1097 & fn. 5 [all that is necessary is an attorney-client relationship]; Beverly Hills Properties v. Marcolino (1990) 221 Cal.App.3d Supp. 7, 11-12 [section 1717 does not require the prevailing party to incur legal expenses; affirming fee award for pro bono legal services].)

The Court finds Viking’s requested hourly rates of $350 for defense counsel (approximately 20 years’ experience), $100 for his paralegal (law degree), and $75 for his secretary (approximately 15 years’ experience) to be immensely reasonable and well within the market rate. (See Shahrokh Decl. ¶¶ 17-20; see also Salton Bay Marina, Inc. v. Imperial Irrigation Dist. (1985) 172 Cal.App.3d 914, 951 [“necessary support services for attorneys, e.g., secretarial and paralegal services, are includable within an award of attorney fees”].)

The Court also finds all of the hours claimed in defense counsel’s itemized time/billing ledger (see Shahrokh Decl. ¶ 21, Ex. A) to have been reasonably expended, and reasonably necessary to the conduct of the litigation. The Court has actively reviewed the entries for unreasonably duplicative or excessive billing and did not find any.

Moving party shall give notice.