Judge: Randy Rhodes, Case: 19CHCV00455, Date: 2022-12-07 Tentative Ruling

Case Number: 19CHCV00455    Hearing Date: December 7, 2022    Dept: F51

Dept. F-51 

Date: 12/7/22 

Case #19CHCV00455

MOTION FOR ATTORNEY FEES

Motion Filed: 9/26/22

MOVING PARTY: Defendant Ygrene Energy Fund California LLC, a California limited liability company

RESPONDING PARTY: Plaintiff Bianca Mohd

NOTICE: OK

RELIEF REQUESTED: An order granting Defendant its costs and attorneys’ fees pursuant to the indemnification agreements signed by Plaintiff, in the amount of $37,931.16.

TENTATIVE RULING: The motion is granted in part. Defendant is awarded $35,611.16 in attorney fees.

BACKGROUND

Plaintiff is a homeowner who applied for and obtained funding from Defendant to finance home improvements she made under the Property Assessed Clean Energy Program (“PACE”). PACE is a state-issued program enabling cities and counties to provide homeowners and businesses with financing to pay for energy efficiency, water efficiency, and renewable energy products and their installation. (FAC, ¶ 19.)

On 7/10/16 and 10/25/16, Plaintiff entered into contracts with defendant Luis Marentes wherein Marentes was to perform home improvements to two of Plaintiff’s properties pursuant to the PACE program. (Id., ¶¶ 17, 34.) Thereafter, Plaintiff applied and was approved for PACE funding from Defendant. (Id., ¶¶ 22, 39.) Plaintiff alleges in her FAC that Defendant and Marentes “engaged in a joint venture pursuant to which Marentes persuades homeowners to finance construction through Ygrene which makes its income from administering the PACE program and which then pays the funds to Marentes.” (Id., ¶ 25.)

On 6/3/19, Plaintiff filed her original complaint, alleging against seven named defendants seven causes of action including breach of contract, negligence, intentional misrepresentation, wrongful foreclosure, and cancellation of instrument.

On 11/7/19, Plaintiff filed her FAC, which alleged against the remaining six defendants 12 causes of action including breach of contract, negligence, intentional misrepresentation, wrongful foreclosure, rescission, and unfair business practices. Plaintiff served Defendant by mail on 2/25/22.

On 7/25/22, the Court sustained Defendant’s demurrer to Plaintiff’s FAC without leave to amend. On 9/26/22, Defendant filed the instant motion to recover attorney fees. Plaintiff has filed no opposition to date.

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ANALYSIS

An award of attorney fees is proper when authorized by contract, statute, or law. (Code Civ. Proc. §§ 1032, subd. (b); 1033.5, subd. (a)(10).) Here, Defendant argues that the program approval agreements entered into between the parties authorize Defendant to recover reasonable attorney fees from Plaintiff. The subject agreements provide:

“To the maximum extent permitted by law, the Owner shall indemnify, defend, protect, and hold harmless … the Program Administrator, from and against all liabilities, claims, demands, damages (including consequential damages), and costs (including all reasonable out-of-pocket litigation costs and reasonable attorneys’ fees through final resolution on appeal) that are related directly or indirectly to, or arise in any way out of, or in connection with, any fact, circumstance, or event related to the approval of the Disbursement Amount or the payment to the Owner of the Disbursement Amount, including any of the following: the Contract Documents; the Owner’s performance of (or failure to perform) its obligations under the Contract Documents; the Owner’s breach or Default (see section 17) under the Contract Documents; disbursement of the Disbursement Amount; the selection, acquisition, installation, operation, or maintenance of the Improvements; the levy and collection of the Special Tax; and the imposition of the Special Tax lien. The Owner’s obligations under this section 14(b) apply whether they accrue or are discovered before or after the disbursement of the Disbursement Amount to the Owner or the Owner’s designee.”

(Exhibits B and D (“Unanimous Approval Agreements”) to FAC, ¶ 14(c) [emphasis added].)

As Defendant observes, Plaintiff is the “Owner” of the subject properties for purposes of the indemnity clauses of the Unanimous Approval Agreements, and Defendant is the “Program Administrator.” (Def.’s Mot., 11:5–6.) Plaintiff’s allegations against Defendant are connected to the selection and approval of home improvements under the PACE program, as well as the disbursement of funds related thereto. (FAC, ¶¶ 23–25, 38–42.) Based on the foregoing, the Court finds that Defendant is entitled to an award of attorney fees incurred in litigating this case.

In determining a reasonable fee award, the Court begins with the lodestar method of calculation, i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate. (Karton v. Ari Design & Construction, Inc. (2021) 61 Cal.App.5th 734, 744; PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095–1096.) Here, Defendant requests attorney fees in the total amount of $37,931.16 for the costs incurred in litigating this case from 2019–2022, including anticipated costs and fees related to the instant motion.

The Court finds that Defendant is entitled to reimbursement of past attorney fees and litigation expenses as evidenced, including those for September 2022, totaling $35,031.16. (Exhibits D–G to Declaration of Bernadette M. Bolan; Bolan Decl. ¶ 17.) However, Defendant’s request for attorney fees for “at least five hours reviewing Plaintiff’s opposition, preparing a reply, and attending the hearing on the Motion,” at attorney Bolan’s hourly rate of $580 per hour, is unreasonable. As Plaintiff has filed no opposition to this motion to date, the Court finds it reasonable to award Defendant attorney fees for only one hour of Bolan’s time, at her hourly rate, to attend the hearing on this motion.

As such, Defendant is awarded a total of $35,611.16 in attorney fees.

CONCLUSION

The motion is granted in part. Defendant is awarded $35,611.16 in attorney fees.