TENTATIVE RULINGa

Calendar: 15

Date:    12/8/2023         

Case No:      EC 065134

Case Name: Mendoza, et al. v. Baca, et al.

MOTION FOR ATTORNEYS’ FEES

Moving Party: Plaintiffs Nora Mendoza and Raul Mendoza    

Responding Party: Defendants Karen Baca, Ana Moreno and Co-op Management 

RELIEF REQUESTED:

SUMMARY OF FACTS:

Plaintiffs Nora Mendoza and Raul Mendoza allege that plaintiffs at all relevant times have resided in an illegally built structure located at 12223 Wick Street in Sun Valley, Unit A, since February 2009 to the present, pursuant to a written lease agreement with the former landlord.  Plaintiffs allege that defendant Karen Baca is the true owner of the subject property and unit, and that defendant Ana Moreno has acted as property manager since September of 2015.  Plaintiffs allege that during their tenancies at the unit and defendants’ ownership and operation of it, the unit has been unsafe, unsanitary, unhealthy, uninhabitable and in a serious state of disrepair, including that the unit was constructed and remodeled without required permits, and is substandard due to illegal occupancy. 

The complaint alleges that on February 19, 2015, the Los Angeles Department of Building and Safety issued a Notice of Violation directing defendants to make repairs to the subject property and unit, but defendants did not make the required repairs within the 30 days, or at any time after receiving notice.  Plaintiffs allege that at all relevant times, and through December 17, 2015, plaintiffs and defendants have been in a landlord-tenant relationship and that plaintiffs have paid rent to defendants until November 2015.   The Mendozas also allege that they made complaints to the City of Los Angeles Rent Stabilization Unit regarding untenantable conditions of the premises in February through August of 2015, and that defendants in retaliation filed an Unlawful Detainer action against all named and unnamed occupants of the premises, resulting in the plaintiffs being locked out of their home, and in removal from the unit of personal property and items.   

The matter went to a court trial in February and March of 2022, with closing arguments heard in June, 2022.  The matter was tried together with related case Leyva v. Baca, LASC Case No. EC 064876.  

On July 1, 2022, the court filed its Joint Statement of Decision, finding in favor of plaintiffs and against defendants on seven of plaintiffs’ causes of action and awarding damages in the amount of $275,763.18, plus tenant relocations costs in an amount to be determined.  The Statement of Decision states, “Any award of attorneys’ fees would be subject to a post judgment motion for attorneys’ fees.”  [Statement of Decision, 38:11-12].  

The First Amended Judgment was entered on September 8, 2022, with plaintiffs to recover from defendants, jointly and severally, the sum of $275,763.18, including, “For rent for uninhabitable dwelling pursuant to 1942.4 in the sum of $3,480.00.”  [Judgment, 2:8, para. 4].

This motion for attorney’s fees was originally heard on December 16, 2022.   The court issued its tentative ruling via posting on LACourt.org website, which was to continue the motion for submission of further declarations in support of the billing rates and the hours sought to permit the court to fix the reasonable attorney’s fees.   At the hearing, the tentative ruling was adopted as the final order of the court, and the matter was continued for the filing of further declarations.  

The matter was then continued several times.  On July 18, 2023, the court continued the then scheduled hearing date of July 21, 2024 to September 15, 2023, the court ruling:

“This will be the last continuance for the submission of further declarations in support of the billing rates claimed and the hours sought, as required by this Court’s previous order of December 16, 2022.”

“In the supplemental declarations, the hours claimed must be broken down by hours expended by each attorney in each category of services rendered, e.g., attending trial, conducting discovery, preparing opposition to motion for judgment on the pleadings, preparing opposition to motion to dismiss, preparing trial briefing, etc. The declarations must also explain how the fees are apportioned between work on this matter and work on the related matter, and how the fees are apportioned between work on the claims based on Civil Code § 1942.5, and work spent on other claims.”

Prior to the September 15, 2023 hearing, the court issued a detailed tentative ruling via posting on LACourt.org website, which was to award plaintiffs as prevailing parties under Civil Code section 1924.4(b)(2) the sum the court determined a reasonable sum to prevail on the claim under Civil Code section 1924.4 (b)(2), a total of $9,911.80.

At the hearing, both sides appeared, and defense counsel stated that he did not receive notice of the motion and requested a continuance.  The court granted the request and continued the matter to November 3, 2023.  The court permitted defense counsel to file an opposition as dictated by statute and ruled that plaintiff’s counsel was permitted to file a Supplemental brief by September 25, 2023.  

A Second Supplemental Declaration was timely filed by plaintiffs on September 25, 2023.  

Defendants did not file a timely opposition to the motion for attorneys’ fees in this case.  Plaintiffs confirmed that the opposition they have been served was an opposition filed under the case number of the related case only, which was timely filed on October 23, 2023, and primarily argued that defendants had not been directly served with all documents relevant to the motion.   The court has considered the opposition papers filed in the Leyva case in opposition to the motion in this case. 

At the hearing on November 3, 2023, the court published its tentative ruling, in which the court expressed concern regarding the service issues.  The minute order states: 

“the court finds that because plaintiffs have now raised issues which were not raised in the moving papers, and it is not clear that all of the moving papers are properly before all parties with the opportunity to address the papers at the current hearing date of November 3, 2023, good cause exists to continue the hearing on the motion for attorney’s fees to ensure that proper notice and opportunity to be heard on all issues is provided.”

The court’s ruling, which became the final order, states:

  

“Motion is CONTINUED to December 8, 2023 (60 days) (FINAL CONTINUANCE), to allow defendants to respond to all arguments made by plaintiffs in the moving papers, the supplemental papers and the second supplemental papers. Specifically, defendants are permitted to respond to the issue that plaintiffs seek all fees under the attorney’s fees provision of the Rental Contract, not just statutory fees under Civil Code section 1942.5. The supplemental opposition memorandum may be up to 20 pages long, to permit defendants to respond to the attorney’s fees sought pursuant to contract, including, if warranted, the issues of successor liability, the reciprocity doctrine, and the reach of the particular attorneys’ fees provision at issue. Defendants are expected to address all grounds raised by the moving papers, even if addressed previously, including the allocation of the fees between the two related cases, and any specific items in the billings which defendants find appropriate to challenge. The Court requires a detailed opposition addressed to the claimed hourly rate, the matters charged, and defendants’ proposal of an appropriate alternative number for any attorney’s fees award, and the basis for that number. The submission of an opposition of 20 pages in length is optional, depending on defendants’ preference. 

Plaintiffs are ordered to serve all moving documents, including the original moving papers filed on November 22, 2022, the supplemental declarations and supporting papers and exhibits filed on August 23, 2023, and the second supplemental declaration and supporting papers and exhibits filed on September 25, 2023, and all other previously filed and served relevant documents no later than November 7, 2023. Service is to be by direct email from plaintiffs’ counsel to defendants’ counsel’s email, with pdf documents attached directly to and accessible from the direct email message. No third-party service is to be used for this service. Plaintiffs are also ordered to serve all documents by follow up mailing the same date, with hard copies mailed by U.S. Postal Service to defendants’ counsel’s mailing address of record. Plaintiffs are also ordered to deliver courtesy copies of all documents to the Court no later than two calendar weeks prior to the continued hearing on the motion. 

Defendants’ opposition must be filed and served by electronic service no later than fifteen court days prior to the continued hearing date, by 12:00 pm (noon), with courtesy copies of all opposition papers to be delivered to the Court on the date opposition is filed. 

Plaintiffs’ reply papers are due no later than nine court days prior to the continued hearing date, by 12:00 pm (noon), with courtesy copies to be delivered to the Court on the date reply is filed.”

[Minute Order, November 3, 2023, pp. 9 and 10]. 

ANALYSIS:

As noted above, the matter was previously continued one final time, due to due process concerns with respect to plaintiffs’ request which was not included in the original moving papers for attorney’s fees pursuant to contract, that is, pursuant to the Rental Agreement.  Plaintiffs had previously requested fees only pursuant to statute.  

The court is inclined under the circumstances to assume that service has not been made as ordered, and that plaintiffs cannot in good faith offer proof of appropriate service compliant with the court’s order, which service should have been made and proof of service filed nearly a month ago.  

The court file reflects that this matter was originally heard on December 22, 2022, which is now nearly a full year ago, and the matter has been continued at least six times, the last time the matter having been continued with the court’s minute order expressly stating, “(FINAL CONTINUANCE).” [Minute Order, 11/13/2023]. 

The court is not inclined to further continue this matter and finds that the court’s previous due process concerns will be sufficiently satisfied by the court declining to consider plaintiffs’ request which was not asserted in the moving papers, for an award of attorney’s fees based on contract, as opposed to based on the specific statutes identified in the moving papers.  That request for statutory fees has since been repeatedly addressed by this court in numerous orders concerning allocation of the fees between the claims subject to the statutory fee provisions and those which were not.  Plaintiffs’ last-minute attempt, in a second supplemental declaration which has still not been properly served on the responding parties, to for the first time claim attorney’s fees based on contract, is accordingly denied with prejudice. 

The court finds that due process concerns are satisfied here by the court’s consideration of defendants’ opposition papers filed on October 23, 2023 in the Leyva action, in connection with the court’s current review for this hearing of its tentative ruling on plaintiffs’ original motion, as published to the parties prior to September 15, 2023 hearing, limiting recovery to fees permitted by statute, as previously allocated and limited by the court.      

In general, under CCP § 1021

 

 “Except as attorney’s fees are specifically provided for by statute, the measure and mode of compensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties...”

Under CCP section 1032(b), “a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.”  Section 1033.5 (a) provides that an allowable cost under §1032 includes attorney’s fees, when authorized by contract, statute or law.  CCP § 1033.5 (a)(10).    

CCP § 1032 defines “prevailing party”:

“(4) “Prevailing party” includes the party with a net monetary recovery, a defendant in whose favor a dismissal is entered, a defendant where neither plaintiff nor defendant obtains relief, and a defendant as against those plaintiffs who do not recover any relief against that defendant.  When any party recovers other than monetary relief and in situations other than as specified, the “prevailing party’ shall be as determined by the court, and under those circumstances, the court, in its discretion, may allow costs or not and, if allowed may apportion costs between the parties on the same or adverse sides...”

(Emphasis added).

Plaintiffs in their notice of motion and moving papers seek fees pursuant to statute, Civil Code § 1942.4, which provides, in pertinent part:

“(a) A landlord of a dwelling may not demand rent, collect rent, issue a notice of a rent increase, or issue a three-day notice to pay rent or quit pursuant to subdivision (2) of Section 1161 of the Code of Civil Procedure, if all of the following conditions exist prior to the landlord's demand or notice:

(1) The dwelling substantially lacks any of the affirmative standard characteristics listed in Section 1941.1 or violates Section 17920.10 of the Health and Safety Code, or is deemed and declared substandard as set forth in Section 17920.3 of the Health and Safety Code because conditions listed in that section exist to an extent that endangers the life, limb, health, property, safety, or welfare of the public or the occupants of the dwelling.

(2) A public officer or employee who is responsible for the enforcement of any housing law, after inspecting the premises, has notified the landlord or the landlord's agent in writing of his or her obligations to abate the nuisance or repair the substandard conditions.

(3) The conditions have existed and have not been abated 35 days beyond the date of service of the notice specified in paragraph (2) and the delay is without good cause. For purposes of this subdivision, service shall be complete at the time of deposit in the United States mail.

(4) The conditions were not caused by an act or omission of the tenant or lessee in violation of Section 1929 or 1941.2.”

Under Civil Code § 1942.4 (b):

“(b)(1) A landlord who violates this section is liable to the tenant or lessee for the actual damages sustained by the tenant or lessee and special damages of not less than one hundred dollars ($100) and not more than five thousand dollars ($5,000).

(2) The prevailing party shall be entitled to recovery of reasonable attorney's fees and costs of the suit in an amount fixed by the court.”

(Emphasis added). 

The notice of motion also refers to Health and Safety Code section 17920.3, which provides the conditions which qualify a building as a substandard building but does not appear to contain language providing for recovery of attorney’s fees.   

As noted above, the court at trial found that defendants had violated both CC 1942.4 and the rent stabilization ordinance and awarded the sum of $3,480.00 to plaintiffs pursuant to statute. 

Plaintiffs accordingly prevailed under Civil Code section 1942.4, which provides for an award of fees, and plaintiffs are entitled to reasonable attorney’s fees and costs as against defendants for the fees and costs incurred in prevailing on the claim under Civil Code § 1942.4 (b)(2). 

  There originally had been no billing records submitted, and the original declarations did not explain what tasks were performed during the hours spent on this matter. 

The California Supreme Court in PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084 established the standard for evaluating the appropriate amount of attorney’s fees to be awarded:  

 

“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. “California courts have consistently held that a computation of time spent on a case and the reasonable value of that time is fundamental to a determination of an appropriate attorneys' fee award.” (Margolin v. Regional Planning Com. (1982) 134 Cal.App.3d 999, 1004-1005 [185 Cal.Rptr. 145].) The reasonable hourly rate is that prevailing in the community for similar work. (Id. at p. 1004; Shaffer v. Superior Court (1995) 33 Cal.App.4th 993, 1002 [39 Cal.Rptr.2d 506].) The lodestar figure may then be adjusted, based on consideration of factors specific to the case, in order to fix the fee at the fair market value for the legal services provided. (Serrano v. Priest, supra, 20 Cal.3d at p. 49.) Such an approach anchors the trial court's analysis to an objective determination of the value of the attorney's services, ensuring that the amount awarded is not arbitrary. (Id. at p. 48, fn. 23.)

Thus, applying the lodestar approach to the determination of an award under Civil Code section 1717, the Court of Appeal in Sternwest Corp. v. Ash (1986) 183 Cal.App.3d 74, 77 [227 Cal.Rptr. 804] explained: “Section 1717 provides for the payment of a 'reasonable' fee. After the trial court has *1096 performed the calculations [of the lodestar], it shall consider whether the total award so calculated under all of the circumstances of the case is more than a reasonable amount and, if so, shall reduce the section 1717 award so that it is a reasonable figure.”

“It is well established that the determination of what constitutes reasonable attorney fees is committed to the discretion of the trial court .... [Citations.] The value of legal services performed in a case is a matter in which the trial court has its own expertise. [Citation.] The trial court may make its own determination of the value of the services contrary to, or without the necessity for, expert testimony. [Citations.] The trial court makes its determination after consideration of a number of factors, including the nature of the litigation, its difficulty, the amount involved, the skill required in its handling, the skill employed, the attention given, the success or failure, and other circumstances in the case.” (Melnyk v. Robledo (1976) 64 Cal.App.3d 618, 623-624 [134 Cal.Rptr. 602].) 

PLCM, at 1095-1096. (Bold print added).

The Court also held that the standard of review with respect to this determination is abuse of discretion:

““The ‘experienced trial judge is the best judge of the value of professional services rendered in his court, and while his judgment is of course subject to review, it will not be disturbed unless the appellate court is convinced that it is clearly wrong”-- meaning that it abused its discretion.”

PLCM at 1094, quoting Serrano v. Priest (1977) 20 Cal.3d 25, 49.

The supplemental declarations primarily provide further detailed information about the attorneys. As noted above, the supplemental declarations submit information supporting the background and experience of the attorneys to support the value of their services and the billing rates claimed, $450 per hour for Rodriguez and $650 per hour for Kwasigroch.  [Supp. Rodriguez Decl., paras. 3-11; Supp. Kwasigroch Decl., paras. 3-20].  The court will find these billing rates reasonable.   

The court had also previously specifically required:

“In the supplemental declarations, the hours claimed must be broken down by hours expended by each attorney in each category of services rendered, e.g., attending trial, conducting discovery, preparing opposition to motion for judgment on the pleadings, preparing opposition to motion to dismiss, preparing trial briefing, etc. The declarations must also explain how the fees are apportioned between work on this matter and work on the related matter, and how the fees are apportioned between work on the claims based on Civil Code § 1942.5, and work spent on other claims.”

[Minute Order 07/18/2023].

With respect to breaking down the hours expended by each attorney in each category of services rendered, plaintiffs evidently intend to provide this to the court by providing the chronological billing invoices, and having the court trace the various categories of services provided in connection with each of the cases.  

With respect to explaining how the fees are apportioned between work on this matter and work on the related matter, the Rodriguez Declaration states, that the attached invoice constitutes “billing records that are kept through my office billing software which reflects the time and expenses spent in this case combined with the related case.”  [Rodriguez Dec., para. 12].  The Invoice is titled “Invoice” with a notation, “LEYVA, Micaela (LEYVA; DURAN v. BACA; MORENO) 2696.”  Although there is no mention of this Mendoza matter, the second entry is for a “Meeting with client and process substitution of attorney for Nora and Raul,” the first names of the Mendoza parties.  The Invoice appears to be the same Invoice submitted in the supplemental papers filed in support of the motion for attorney’s fees in the related Leyva case.   

The court will accordingly find this showing to explain that the total fees sought in the notice of motion, the maximum sum which could be awarded on this motion, $202,186.14, is the total fees claimed to have been incurred for both cases, and that approximately half of those fees should be allocated to the prosecution of this case, and the other half allocated to the prosecution of the related case, Leyva v. Baca.  Although the fees sought in connection with this motion are slightly higher than the sum sought in the Leyva notice, $201,762.01, a difference of $424.13, the court finds that halving the fees claimed approximates the fees incurred in connection with this matter. This leaves the total fees claimed in this case as (one half of $202,186.14) $101,093.07.    

With respect to the requirement that the supplemental showing explain “how the fees are apportioned between work on the claims based on Civil Code § 1942.5, and work spent on other claims,” there is no explanation offered at all in the supplemental declarations.  Plaintiffs are evidently again assuming that the court will review the entries on the billing records and make its own apportionment.    

 

It is recognized that “[w]hen a cause of action for which attorney fees are provided by statute is joined with other causes of action for which attorney fees are not permitted, the prevailing party may recover fees only on the statutory cause of action.”  Akins V. Enterprise Rent-A-Car Co. of San Francisco (2000) 79 Cal.App.4th 1127,1133.   “Such fees need not be apportioned when incurred for representation of an issue common to both a cause of action for which fees are permitted and one for which they are not.” Akins, at 1133.   The trial court is authorized to conduct apportionment of fees. 

Here, the trial court handled this matter from its filing and presided over the court trial.  Plaintiffs prevailed on their fifth cause of action for Demand for Rent for Uninhabitable Dwelling under Civil Code section 1942.4 because there was no Certificate of Occupancy for Plaintiffs’ unit. [SOD, p. 28].  Plaintiffs were awarded back rent for three months, from August 2015 through October 2015, for total damages of $3,480 for the statutory violation in connection with this cause of action. [Id.]  

The violation was limited to the lack of a Certificate of Occupancy, and the court found that plaintiffs had not established breach of the implied warranty of habitability in connection with the alleged statutory violations, noting, “Plaintiffs presented no evidence as to these defendants on the habitability issues for the short time Plaintiffs resided in the residence under Baca’s ownership.”  [SOD, p. 27].  

The Court finds that the attorney time spent to establish the lack of the Certificate of Occupancy which supported the cause of action was very limited.  

The subject complaint included ten causes of action other than the cause of action based on Civil Code section 1942.4.  Those causes of action were ones on which plaintiffs either did not prevail, such as for breach of implied warranty of habitability and negligent maintenance, or on which plaintiffs prevailed but were based on conduct unrelated to the Certificate of Occupancy.  Specifically, plaintiffs spent most of their time pursuing and presenting at trial evidence concerning attempts to evict plaintiffs, and in accomplishing a false eviction by use of a secret door, thereby tricking the Sheriff into evicting plaintiffs, as well as defendant’s post-eviction failure to preserve plaintiffs’ property, and the damages directly associated with those alleged wrongs.  [SOD, pp. 26-30].  The significant emotional distress damages awarded were based on that conduct, including defendants causing plaintiffs to be locked out of their home, losing their life savings, jewelry and appliances, and defendants losing or destroying an urn with the ashes of plaintiffs’ deceased baby. [SOD, p. 30].  There was considerable law and motion engaged in here which related to collateral estoppel issues presented by an underlying unlawful detainer action, which concerned the eviction matters, not the Certificate of Occupancy lapse.  The majority of the attorney time spent on this action accordingly had nothing to do with the violation of statute based entirely on the absence for three months of a valid Certificate of Occupancy.  Again, no habitability issues were pursued or established by plaintiffs. 

The court finds it is reasonable to allocate 10% of the time spent by the plaintiffs’ attorneys in prevailing on the statutory cause of action for which fees are awardable. The court finds that the remaining 90% of the time was directed to pursuing the separate theories upon which the wrongful eviction, intentional and negligent infliction of emotional distress, conversion and other causes of action were based.     

As noted above, the court determines that the total fees which can be claimed in this matter are $101,093.07.  Also as noted above, the court will also reduce from the fees an entry for 2 hours of time claimed at a $350 (as opposed to $450) billing rate ($700) for what appears to be duplicative time for attendance at a Trial Setting Conference on September 21, 2022.  The half of that charge which would pertain to this matter, as opposed to the Leyva matter, will result in a reduction of half of $700, or $350. 

The court in its review of the billings also notes that on February 22, 2022, attorney Kwasigorch billed 5.0 hours to attend the Bench Trial twice, for two charges of $3,250.  This is clearly an error, and duplicative, and the court will also reduce from the fees the half of that second charge which would pertain to this matter, resulting in a further reduction of $1,625.  

The total of $101,093.07, reduced by $350 ($100,743.07) and by $1,625 results in a subtotal of $99,118.07.  Ten percent of this sum is $9,911.80, which the court finds to represent the reasonable sum of fees to be awarded to plaintiffs as prevailing parties under Civil Code section 1942.4 (b)(2).     

RULING:  

Motion for an Award of Attorneys’ Fees and Expenses:

The Court finds that plaintiffs have established that they were prevailing parties in this matter under their second cause of action under Civil Code section 1942.4, which provides, at subdivision (b)(2) that the “prevailing party shall be entitled to recovery of reasonable attorney's fees and costs of the suit in an amount fixed by the court.” 

The Court has reviewed the moving papers and declarations, the supplemental declarations and attached Invoice, defendants’ opposition and declaration in opposition filed in the related case Leyva v. Baca, LASC Case No. EC 064876 on October 23, 2023, and the file in this matter, and based on the Court’s experience with this matter and its own expertise with respect to the value of legal services, as well as various factors such as the nature of the litigation, and the success or failure in connection with the issues required to establish the statutory violation, the Court determines that the reasonable sum of fees to be awarded to plaintiffs as prevailing parties under Civil Code section 1942.4 (b)(2), at the reasonable billing rates claimed, $9,911.80.  The sum is to be awarded in favor of plaintiffs Nora Mendoza and Raul Mendoza, and against defendants Karen Baca, Ana Moreno, and Co-op Management, jointly and severally, to be added to the Judgment. 

Other costs and expenses sought in the moving papers are to be awarded pursuant to procedures for recovery of costs.  The Court notes a Memorandum of Costs was filed on October 3, 2022.  

Additional relief and fees based on contract, which were sought for the first time in the Second Supplemental Declaration of R. Grace Rodriguez re Motion for an Award of Attorneys’ Fees and Expenses are DENIED WITH PREJUDICE. 

DEPARTMENT D IS CONTINUING TO CONDUCT AND ENCOURAGE 

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