Judge Peter A. Hernandez, Case Number: KC069912, Date: 2023-10-03 Tentative Ruling

Plaintiffs Byron Kerns and Sylvia Kerns’ Motion for Attorney’s Fees is GRANTED.

Plaintiffs Byron Kerns and Sylvia Kerns (together, “Plaintiffs”) allege as follows:

Michael C. Yang (“Yang”), Sylvia Wei-Ting Hu aka Sylvia Hu (“Hu”) and Hi Life LLC (“HLL”) (collectively, “Owners”) were and are the owners of the vacant land located at 0 Cortez Tract #2371, West Covina, California 91791 (“Property”). On or about December 11, 2011, Plaintiffs and owners entered into a written agreement wherein Owners agreed to sell the Property to Plaintiffs for $650,000.00. Since Wang and Hu were going through a divorce at the time, the closing of escrow was set for ten days after the court entered an order approving the sale as set forth in the agreement. On/about January 2, 2014, the court entered an order directing the clerk to execute the necessary documents and close the sale of the Property to Plaintiffs. Plaintiffs were not informed about the court’s order until almost a year later, at which time Plaintiffs demanded that escrow be closed per the terms of the agreement. Owners refuse to close escrow and have allowed several liens to be placed on the Property.

On December 28, 2017, Plaintiffs filed a complaint, asserting causes of action against Hu, HLL, Yang, Linkage Financial Group, Inc. (“LFG”) and Does 1-50 for:

On November 8, 2018, Hu filed a First Amended Cross-Complaint (“FACC”), asserting causes of action against Plaintiffs, Yang, LFG and Roes 1-10 for:

On June 21, 2022, Plaintiffs filed an “Amendment to Complaint,” wherein Hu Tseng Kwang (“Kwang”) was named in lieu of Doe 11.

The matter proceeded to court trial on December 8, 2022 and February 24, 2023. On May 16, 2023, the court’s “Statement of Decision” was filed.

On May 30, 2023, judgment was entered. On June 13, 2023, Plaintiffs dismissed HLL, without prejudice. On June 21, 2023, LFG filed (and electronically served) a “Notice of Entry of Judgment.”

An Order to Show Cause Re: Why the Cross-Complaint Should Not Be Dismissed as to Defendant Michael C. Yang for Failure to Prosecute is set for November 1, 2023.

“Except as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.” (Code Civ. Proc., § 1032, subd. (b).)

“The following items are allowable as costs under Section 1032: . . . (10) Attorney's fees, when authorized by any of the following: (A) Contract. (B) Statute. (C) Law.” (Code Civ. Proc., § 1033.5, subd. (a)(10).)

“In 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…” (Civ. Code § 1717, subd. (a).)

“The court, upon notice and motion by a party, shall determine who is the party prevailing on the contract for purposes of this section, whether or not the suit proceeds to final judgment. Except as provided in paragraph (2), the party prevailing on the contract shall be the party who recovered a greater relief in the action on the contract. The court may also determine that there is no party prevailing on the contract for purposes of this section…” (Civ. Code § 1717, subd. (b)(1).)

Plaintiffs move the court for an award of attorney’s fees in the amount of $47,160.00.

The court rules on Hu’s evidentiary objections as follows: Overruled as to Nos. 1-3.

The court rules on Plaintiffs’ evidentiary objections as follows: Sustained as to Nos. 1-10, 12 and 13 and Overruled as to No. 11.

The court issued its “Statement of Decision” on May 16, 2023 and entered judgment on May 30, 2023.[1]

Plaintiffs assert they are entitled to attorney fees from Yang and Hu pursuant to Paragraph 26 of the “Vacant Land Purchase Agreement and Joint Escrow Instructions” dated November 25, 2011 (“Agreement”), which provides as follows:

and Seller arising out of this Agreement, the prevailing Buyer or Seller shall be

resorting to arbitration or court action . . . If, for any dispute or claim to which

this paragraph applies, any party (i) commences an action without first attempting

to resolve the matter through mediation, or (ii) before commencement of an action, refuses to mediate after a request has been made, then that party shall not be entitled

to recover attorney fees, even if they would otherwise be available to that party in

Hu, in response, argues that the Agreement is not enforceable against her because it was not signed by Plaintiffs and that, as such, she is not responsible for attorney’s fees as set forth therein. The court, however, has already determined that the Agreement is enforceable against Hu. The court declines to entertain Hu’s attempt to relitigate this issue.

Plaintiffs assert that they requested that Yang and Hu mediate this matter on at least three separate occasions, namely (1) via an April 12, 2016 letter from Plaintiffs’ counsel Timothy P. Creyaufmiller (“Creyaufmiller”) to Joyce J. Zhao (“Zhao”) of Huntington Realty Group (Creyaufmiller Decl., ¶ 5, Exh. 2); (2) via a May 4, 2016 letter from Creyaufmiller to Zhao (Id., ¶ 7, Exh. 4) and (3) via a May 19, 2016 letter from Creyaufmiller to Zhao and attorney John Ma (“Ma”) (Id., ¶ 9, Exh. 5).

Hu, in response, asserts that Creyaufmiller failed to attempt to mediate this matter with her, either directly or through Ma, and that the only communications were with Zhao, who was Yang’s real estate agent but not her agent. Hu and Ma have both provided declarations disavowing receipt of any oral or written request for mediation, including the May 19, 2016 letter, prior to the filing of the lawsuit. (Hu Decl., ¶¶ 4 and 11; Ma Decl., ¶ 5). Hu’s claim that Zhao was not her agent, however, is belied by the “Amended Order After Hearing” entered September 13, 2010 in case styled Marriage of Sylvia Wei-Ting Hu and Michael C. Yang, Case No. BD320796 (Creyaufmiller Reply Decl., ¶ 4, Exh. A). Zhao, moreover, acknowledged via a May 4, 2016 email that she forwarded Creyaufmiller’s communication alternatively requesting communication “to all parties involved in or knowledgeable about the case.” Creyaufmiller Decl., ¶ 6, Exh. 3).

The court determines that Plaintiffs the prevailing party for purposes of Civil Code § 1717, subdivision (b)(1), that Plaintiffs unsuccessfully attempted to mediate this matter with Yang and Hu prior to instituting this lawsuit, and that Plaintiffs are to recoup attorney’s fees against Yang and Hu pursuant to the Agreement.

The court next turns to the issue of reasonableness of the fees sought. “[T]rial courts have broad discretion in determining the amount of a reasonable attorney's fee award. This determination is necessarily ad hoc and must be resolved on the particular circumstances of each case.” (Meister v. Regents of University of California (1998) 67 Cal.App.4th 437, 452.) “Trial judges are entrusted with this discretionary determination because they are in the best position to assess the value of the professional services rendered in their courts.” (Christian Research Institute v. Alnor (2008) 165 Cal.App.4th 1315, 1321.)

“[O]nce a party has established he or she is entitled to fees, the lodestar method is generally presumed to be the starting point in analyzing the appropriate amount of attorney fees. Under this method, a court first calculates the number of hours reasonably spent multiplied by the reasonable hourly rate for each billing professional, and then may adjust the amount based on various relevant factors to ensure the fee reflects the fair market value [of the attorney services] for the particular action. (K.I. v. Wagner (2014) 225 Cal.App.4th 1412, 1425 [quotation marks and citations omitted].)

“In determining hourly rates, the court must look to the prevailing market rates in the relevant community. The rates of comparable attorneys in the forum district are usually used. In making its calculation, the court should also consider the experience, skill, and reputation of the attorney requesting fees. The court may rely on its own knowledge and familiarity with the legal market in setting a reasonable hourly rate.” (Heritage Pacific Financial, LLC v. Monroy (2013) 215 Cal.App.4th 972, 1009 [internal quotations and citations omitted].)

Creyaufmiller seeks an hourly rate of $300.00. Hu does not challenge Creyaufmiller’s hourly rate.

Based on the court’s own experience and knowledge, as well as on the experience and qualifications of counsel as set forth in Creyaufmiller’s declaration and Hu’s non-opposition, the court finds that Creyaufmiller’s hourly rate is appropriate.

“[T]he verified time statements of the attorneys, as officers of the court, are entitled to credence in the absence of a clear indication the records are erroneous.” (Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4^th 359, 396.)

Creyaufmiller attests that he spent a total of 157 hours of attorney time on this matter, which included “preparation of the complaint, responding to the cross-complaint, mediation and settlement negotiations, extensive research of the property records on a number of occasions, an extensive review of the divorce records, a number of which could only be accessed at the courthouse in Los Angeles, propounding and responding to discovery, both written and depositions, preparation for trial on two separate occasions, trial and post-trial briefing and argument, preparation [of] a statement of decision, judgment and this motion,” as well as responding to service, lien and transfer issues. (Creyaufmiller Decl., ¶ 11; see also ¶ 12).

Hu takes issue with the fact that Creyaufmiller did not attach any time sheets. Creyaufmiller was not required to do so. Creyaufmiller’s declaration, which is made under penalty of perjury, describes the work performed sufficiently enough to enable the court to make its own evaluation as to the reasonableness of same. The court determines that the amount of time incurred is reasonable.

[1] The judgment provides, in relevant part, as follows: “NOW, THEREFORE, IT IS ADJUDGED, ORDERED AND DECREED as follows:

1. Plaintiffs, BYRON KERNS and SYLVIA KERNS shall have judgment against Defendants, SYLVIA WEI-TING HU, MICHAEL C. YANG and HU TSENG KWANG for specific performance to purchase that certain property that certain vacant property located in West Covina, California and commonly known as 0 Cortez Tract #2371, APN # 8482403414 with the legal description as set forth in Exhibit "A" attached hereto (" Property"). The Court Clerk is ordered to execute and to the extent necessary notarize on behalf of SYLVIA WEI-TING HU, and also MICHAEL C. YANG if unsigned by him, those certain documents identified in the Order of the divorce court entered on January 2, 2014 as set forth below:

a. Vacant Land Purchase Agreement and Joint Escrow Instructions Dated 11/25/2011;

b. Counter Offer No. One dated 11/29/2011;

c. Counter Offer No. Two dated 11/30/2011;

d. Addendum to Residential Purchase Agreement and Joint Escrow Instructions dated 12/13/2011;

e. Instructions to Pay Commission, dated 12/14/2011;

f. Amended Escrow Instructions dated 1/6/2012;

g. Amended Escrow Instructions dated 1/12/2012; and

h. Grant Deed.

The Court Clerk is ordered to execute and to the extent necessary notarize any other documents necessary to close escrow on the Property and to transfer the Property to Plaintiffs. The Court Clerk is also ordered to sign and notarize on behalf of Defendant, HU TSENG KWANG, a Grant Deed transferring any interest he may have in the Property to Plaintiffs as part of the escrow documents. Prior to the close of escrow, Plaintiffs shall place into escrow funds totaling $ 650,000.00, including any funds already on deposit with escrow. The $650,000.00 amount shall be reduced by any costs and/or attorney fees that the court may subsequently order in favor of Plaintiffs as the prevailing party in this action. The net proceeds from the sale shall be distributed by the court in that certain divorce action entitled In Re Marriage of Sylvia Wei-Ting Hu, Los Angeles Superior Court Case No. BD320796 (‘divorce action’) . . .

3. Cross-Complainant, SYLVIA WEI-TING HU, shall take nothing by way of her Cross-Complaint against all Cross-Defendants therein. . .”