Judge Richard Y. Lee, Case 30-2021-01233806 2022-07-28 Tentative Ruling

Judge: Richard Y. Lee, Case: 30-2021-01233806, Date: 2022-07-28 Tentative Ruling

Plaintiff, Kowen Lai, (“Plaintiff”) moves for an order for an award of attorney’s fees in the amount of $220,937.50 to be payable by Defendants, Wayne Iwamoto, Susan Iwamoto, aka Susan-James Iwamoto (collectively “Defendants”) to “Law Offices of Roger E. Naghash – Client Trust,” pursuant to the parties’ lease agreement for real property located at 27851 Williams Canyon Road, Silverado, California, 92676 (the “Subject Property”), and as Plaintiff is the prevailing party in the action. Plaintiff also moves for an order for an award of costs in the amount of $8,509.45 as set forth in the memorandum of costs.

Service of Papers

As a threshold matter, the Court notes that the applicable proofs of service indicate that the moving and reply papers were served by U.S. mail and fax. (ROA 400, 414.)

Service by fax is permitted only where the parties have agreed to this method of service and a written confirmation to that effect is made. (Code Civ. Proc. § 1013(e); California Rules of Court (“CRC”), rule 2.306(a).)

Here, there is no indication that the parties agreed to fax service and that a written confirmation to that effect was made. The proof of service states, “I caused to be transmitted via facsimile to attached facsimile numbers” but nothing is attached to either proof of service. In addition, the proof of service attached to the Second Amended Motion (ROA 400) and the proof of service attached to the reply (ROA 414) does not set forth the sending fax number, does not include a statement that the document was sent by fax transmission and that the transmission was reported as complete and without error, does not attach a copy of the transmission report, and does not declare that the transmission report was properly issued by the sending fax machine. Thus, service by fax is ineffective, but as the moving papers were properly served by mail and a substantive opposition was timely filed, it appears that notice of the motion was properly served.

As for mail service of reply papers, service by mail is not reasonably calculated to ensure delivery by next business day after the time the opposing or reply papers, are filed. (See Code Civ. Proc. § 1005(c).) Despite the mail service, the Court will consider the reply.

The Court also notes that the opposition appears to have been served only by fax on Plaintiff’s counsel. (ROA 408.) The proof of service attached to the opposing papers does not indicate that the parties agreed to fax service or that a written confirmation to that effect was made, however, that the moving papers were also served by fax tends to suggest that an agreement to serve by fax exists. The proof of service of the opposition also states that fax service was made pursuant to CRC, rule 2.306, and complies with the requirements set forth in CRC, rule 2.306(h), such that service by fax is effective. Nor does the reply indicate improper service.

Reply Papers

As part of the reply papers, Plaintiff filed a Supplemental Declaration of Roger E. Naghash and attached “[a] true and correct copy of the actual report in the accounting system for all matters that have been in fact incurred and billed to Plaintiff . . . .” (Supplemental Declaration of Roger E. Naghash, ¶ 2; Ex. R1.)

The Opposition provides that Defendants object to any attempt by Plaintiff to submit “reply” evidence regarding hours spent on this matter or the reasonableness of the requested fees.

The general rule of motion practice is that new evidence is not permitted with reply papers, and should only be allowed in an exceptional case. (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537.) If allowed, the other party should be given an opportunity to respond. (Id. at p. 1538.) There is an exception to the general rule for points that are strictly responsive to arguments made for the first time in opposition. (Golden Door Properties, LLC v. Superior Court of San Diego County (2020) 52 Cal.App.5th 837, 774.)

Here, the supplemental declaration in reply and exhibit attached thereto constitutes new evidence submitted in reply. They are directly responsive to the argument made in opposition that the time entry document for Roger Naghash is not a billing statement and states that all time spent from October 2021 through July 2022 is “unbilled,” and provides an explanation for the use of the document “Time Activity Detail – By Client” in the moving papers.

However, the Court also notes that the opposition argues that “[t]he ‘Notes’ associated with 43 of the time entries are cut off and are incomplete. [Citation.] Thus, there is no record of what Mr. Naghash did for a significant amount of time.” (Opposition, 7:24-26.) The “Account Statement” submitted in reply contains descriptions which are not cut off. (See Ex. R1 to Supplemental Naghash Decl.) Although the new evidence is responsive to arguments made in the opposition, it presents new evidence to which Defendants have not had an opportunity to respond. Consequently, the Court CONTINUES the motion to allow Defendants to respond to the new evidence presented in reply.

In reviewing the motion, the Court notes that it is not entirely clear how Plaintiff’s counsel calculated the hours for which he is asking to be awarded fees. Accordingly, Plaintiff may file and serve a supplemental brief not to exceed 5 pages plus exhibits, if appropriate, within 10 days.

Defendants may file and serve a supplemental opposition responding to the new evidence raised in the reply and/or Plaintiff’s supplemental brief noted above, no later than nine (9) court days before the continued hearing date. The brief shall not exceed 10 pages.

Finally, Plaintiff may file and serve a supplemental reply brief in response to the supplemental opposition no later than five (5) court days before the continued hearing date, not to exceed 5 pages.

The hearing is continued to October 27, 2022 at 1:30 p.m.

Plaintiff to give notice.