Judge Richard S. Whitney, Case Number: 37-2020-00006889-CL-BT-CTL, Date: 2024-05-10 Tentative Ruling

Judge: Richard S. Whitney, Case: 37-2020-00006889-CL-BT-CTL, Date: 2024-05-10 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - May 09, 2024

05/10/2024 10:30:00 AM C-68 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Richard S. Whitney

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Civil - Limited Business Tort Motion Hearing (Civil) 37-2020-00006889-CL-BT-CTL ASIATA VS VELOCITY INVESTMENTS LLC [E-FILE] CAUSAL DOCUMENT/DATE FILED:

Plaintiffs' Joint Motion to Enter Judgment Pursuant to Code of Civil Procedure §998 or a Settlement Agreement, and for an Award of Fees Pursuant to Code of Civil Procedure §1033.5(a)(10)(B), and Civil Code §§1788.30(c) and 1788.62(c)(1) as to all Consolidated Cases is GRANTED, in part.

Plaintiffs ask this Court to enter judgment, including attorney's fees and costs, against Defendant Velocity Investments, LLC ('Defendant'). By settlement agreement and acceptance of CCP section 998 offers the parties agreed that Plaintiffs are entitled to 'reasonable attorneys' fees and costs incurred associated with the prosecution of the claims in' this action 'through the date of acceptance of this offer.' (Penn Decl., Exhibits E and G.) 'In the case of any successful action to enforce liability under this section, the court shall award costs of the action, together with reasonable attorney's fees as determined by the court.' (Civ. Code, § 1788.62(c).) To calculate the appropriate lodestar in this action, one must determine the reasonable hourly rate and multiply that figure by the reasonable number of hours spent. (Graham v. DaimlerChrysler Corporation (2009) 34 Cal.4th 563, 579-580.) Plaintiffs have sufficiently shown that the hourly rates are reasonable, and Defendant does not dispute the reasonableness of the hourly rates.

By the agreement of the parties, fees incurred that were not 'associated with the prosecution of the claims in' this action are not recoverable. The Court agrees that all the fees incurred in Defendant's collection cases were not 'associated with the prosecution of the claims in' this action. However, the work related to discovery was 'associated with the prosecution of the claims in' this action because of the common chain of title issue. Defendant does not address the issue that Plaintiffs could have faced issues of collateral estoppel as to the chain of title, which would have affected their prosecution of the consolidated matters. The Court, in its discretion, believes the discovery work was sufficiently useful and 'of a type ordinarily necessary.' (Pennsylvania v. Delaware Valley Citizens' Council for Clean Air (1986) 478 U.S. 546, 561; Webb v. Board of Educ. of Dyer County, Tenn. (1985) 471 U.S. 234, 243.) Plaintiffs also cite the 'private attorney general doctrine' codified in CCP section 1021.5 as support for why all of Plaintiffs' requested fees may be awarded, the Court is unpersuaded that the 'private attorney general doctrine' applies here.

The award of attorney fees is proper under section 1021.5 if '(1) plaintiffs' action 'has resulted in the enforcement of an important right affecting the public interest,' (2) 'a significant benefit, whether Calendar No.: Event ID: TENTATIVE RULINGS

3096664 57 CASE NUMBER: CASE TITLE: ASIATA VS VELOCITY INVESTMENTS LLC [E-FILE] 37-2020-00006889-CL-BT-CTL pecuniary or nonpecuniary, has been conferred on the general public or a large class of persons' and (3) 'the necessity and financial burden of private enforcement are such as to make the award appropriate.'' (Press v. Lucky Stores, Inc. (1983) 34 Cal.3d 311, 317–318 [Citation omitted].) CCP section 1021.5 provides the 'court may award attorneys' fees to a successful party' in an action: which has resulted in the enforcement of an important right affecting the public interest if: (a) a significant benefit, whether pecuniary or nonpecuniary, has been conferred on the general public or a large class of persons, (b) the necessity and financial burden of private enforcement, or of enforcement by one public entity against another public entity, are such as to make the award appropriate, and (c) such fees should not in the interest of justice be paid out of the recovery, if any.

(Code Civ. Proc., § 1021.5 [Emphasis added].) 'An award of attorney fees pursuant to section 1021.5 is available if a party defends an action 'primarily to advance' a public interest 'rather than personal interests.'' (DiPirro v. Bondo Corp. (2007) 153 Cal.App.4th 150, 199 [Citations and quotes omitted].) ''[I]t has been repeatedly held that an award of attorney fees is not justified under section 1021.5 if the public benefit gained from the law suit ... and the important public right enforced by the suit ... are coincidental' to the monetary or other personal gain realized by the party seeking fees. (Id. at 199 [Citation omitted].) The Court finds that to the extent there was a significant benefit to a public interest that was enforced in these consolidated actions it was coincidental to the personal monetary gain to Plaintiffs. Notably, Plaintiffs did not seek an injunction.

Defendants challenge Plaintiffs' counsel's policy to charge in minimum increments of 0.2 hours. Plaintiffs assert that every task required time to engage in timekeeping, which justifies the practice of charging a minimum of 0.2 hours. The Court disagrees that the practice reflects the actual number of reasonable hours expended which are compensable. What should not be billed to a client should not be billed to an adversary. (Hensley v. Eckerhart (1983) 461 U.S. 424, 434.) The Court agrees that a reasonable client would not agree to pay for attorneys to complete the administrative task of timekeeping. While attorneys must make efforts to shield privileged information in billings, tasks related to timekeeping in a certain manner is not recoverable in the same way that keeping up with legal education is not compensable even though both may be necessary to fulfill an attorney's professional obligations. In any event, it appears many of the tasks could have been completed along with the timekeeping in less than six minutes.

Plaintiffs' counsel's description of many tasks is so vague that it is impossible to determine whether the task would truly take 0.2 hours to complete. For example, numerous entries merely state the sender and recipient of an email. The Court cannot conclude none of the emails took less than 12 minutes to draft.

Other entries that do provide a description are an indication that the email should not have taken more than a few minutes. The same analysis applies to vague entries as to 'discussions' with co-counsel.

Importantly, most billing entries were 0.2 hours. Therefore, this Court finds that Plaintiffs' counsel has inflated the hours billed thorough vagueness and billing at 0.2-hour increments. The Court agrees with Defendant's expert's recommendation that the requested fees should be reduced by $194,833.00 to account for Plaintiffs' counsel's practice of billing at a minimum of 0.2 hours.

The Court also agrees the vague task descriptions warrant a reduction to the requested fees, but not by the $94,593.00 suggested by Defendant's expert's report. As discussed above, numerous entries are so vague as to eliminate the possibility to determine whether Plaintiffs' counsel was engaged in a compensable task. While the Court understands Plaintiffs' counsel needed to protect attorney-client privileged information, Plaintiffs' counsel should have been able to provide more information without revealing attorney-client privileged information. The Court believes many of the tasks noted by Defendant's expert were likely at least partially compensable, but many were also likely unnecessary, duplicative, inflated, or otherwise not compensable. The Court reduces Plaintiffs' requested fees by $46,000 to account for this issue.

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3096664 57 CASE NUMBER: CASE TITLE: ASIATA VS VELOCITY INVESTMENTS LLC [E-FILE] 37-2020-00006889-CL-BT-CTL Defendant does not deny fees related to administrative tasks may be recoverable but asserts they cannot be charged at an attorney's billing rate. Administrative tasks are recoverable as 'necessary support services for attorneys, e.g., secretarial and paralegal services, are includable within an award of attorney fees.' (Salton Bay Marina, Inc. v. Imperial Irrigation Dist. (1985) 172 Cal.App.3d 914, 951.) The Court agrees the task billed at a higher attorney rate as to administrative tasks should be reduced. The Court finds there were 305 hours of administrative tasks billed. The Court also finds it is appropriate to reduce the hourly billing rate for those hours to around $200/hour (to reflect a paralegal rate) such that the requested award will be reduced by $86,925.

The Court also agrees with Defendant's expert as to spread billing – the billings indicate that Plaintiffs billed for a task in each individual case at a minimum of 0.2 hours when the task applied to all cases and most likely required a fraction of the time to complete. Billing for preparing the letter of acceptance of the 998 offers illustrates this point. The letters were very short and simple, such that all of them could have been completed in less time than the time billed. However, the Court does not find the practice supports the $290,872.33 reduction recommended by Defendant's expert. The Court finds a reduction of $118,203 is appropriate.

The Court also agrees with Defendant's expert as to intra-office conference. While the Court does not reduce the requested fees based on the attendance of multiple attorneys at certain events, the Court finds intra-office conferences are not necessary to the litigation. The attendance of multiple attorneys at case management conferences and the like should have eliminated the need for intra-office conferences. The intra-office conferences involved non-compensable tasks such as duplicating work and likely other tasks such as assigning work, sharing information, and administrative tasks. Plaintiffs' requested fees are reduced by $80,085, as recommended by Defendant's expert.

Defendant asserts efforts related to this fee motion should not be recoverable since the parties agreed the recovery would be limited to the fees incurred 'through the date of acceptance of this offer.' Plaintiff asserts '[t]his case falls squarely within the rule that a party who secures a recovery by accepting a section 998 offer is entitled to costs and fees unless they are excluded by the offer.' (Engle v. Copenbarger & Copenbarger, LLP (2007) 157 Cal.App.4th 165, 169.) However, unlike in Engle the parties explicitly agreed to a cut-off point for fees – the date of acceptance of the offer. While Plaintiffs are correct that the efforts related to the fee motion are associated with these consolidated matters, the parties also agreed to a second condition – a cut-off point. Plaintiff cannot deny that the efforts to negotiate a compromise on fees and this fee motion occurred after the date of acceptance of the offer.

Plaintiff is not awarded attorney's fees as to the fees incurred after the date of acceptance of the offers.

The $20,859 ($5,302 + $8,455 $7,102) in fees requested by Plaintiffs is not awarded.

Plaintiffs request that the Court apply a multiplier. The Court chooses not to apply a multiplier to increase the lodestar figure, inasmuch as the Court already considered the difficulty of the case, the quality of representation, the contingent nature of the case, the delay in payment, and the results achieved in coming up with its lodestar figure. In Ketchum v. Moses (2001) 24 Cal.4th 1122, 1138-1139, the California Supreme Court observed that the trial court is not required to include a fee enhancement to the basic lodestar figure for contingent risk, exceptional skill, or other factors, though it retains discretion to do so in the appropriate case. However, the Court further cautioned that a trial court should not apply a fee enhancement or multiplier to the basic lodestar figure if the lodestar figure, itself, reflects consideration of the exceptional representation, lest the attorney end up getting double compensated.

(Id.) This Court does not believe the factors support application of a multiplier in this consolidated action.

As to costs, Defendant asserts the costs are not verified, as required. In a supplemental declaration, Stephen G. Recordon provides the language to verify the costs that Defendant asserted was required.

The Court finds the costs are properly verified. As Defendant has not raised any specific objections to specific costs, Defendant has not met its burden to show the costs were not reasonable or necessary.

(Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774.) Plaintiffs are awarded $43,099.03 in costs.

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3096664 57 CASE NUMBER: CASE TITLE: ASIATA VS VELOCITY INVESTMENTS LLC [E-FILE] 37-2020-00006889-CL-BT-CTL Plaintiffs' motion as to the entry of judgment is unopposed by Defendant. Therefore, the motion is granted in that regard. The motion as to attorney's fees and costs is granted, in part, as discussed above. Plaintiffs are awarded $1,153,113 ($2,051,562.38 - $898,449.38 [$194,833 + $46,000 + $86,925 + $118,203 + $80,085 + $20,859 + $351,544.38]) in attorney's fees and $43,099.03 in costs from Defendant.

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