Judge Robert B. Broadbelt, Case Number: 19STCV36611, Date: 2025-02-20 Tentative Ruling

Judge: Robert B. Broadbelt, Case: 19STCV36611, Date: 2025-02-20 Tentative Ruling

Tentative rulings are sometimes, but not always, posted. The purpose of posting a tentative ruling is to to help focus the argument. The posting of a tentative ruling is not an invitation for the filing of additional papers shortly before the hearing.

(2) Motion to Strike or Tax Costs and to Clarify, Modify, or Amend Judgment

The court considered the moving papers filed in connection with plaintiff Jose Rubio’s motion for attorney’s fees. The court did not consider, and sustains the objections to, the opposition papers (including the evidentiary objections) filed by defendant Andrew Altholz on February 10, 2025 because those papers were not filed at least nine court days before the hearing on this motion. (Code Civ. Proc., § 1005, subd. (b).)

The court considered the moving, opposition, and reply papers filed in connection with defendant Andrew Altholz’s motion to strike or tax costs and to clarify, amend, or modify judgment.

Plaintiff Jose Rubio (“Plaintiff”) moves the court for an order awarding attorney’s fees in his favor, to be paid by defendant Andrew Altholz (“Defendant”), in the total amount of $96,850.

“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).)

Plaintiff requests attorney’s fees pursuant to the parties’ contract. Although Plaintiff did not attach a copy of the promissory note to his motion, the promissory note is attached as Exhibit 1 to the Second Amended Complaint and states that “[i]f any payment obligation under this Note is not paid when due, the Borrower [i.e., Defendant] promises to pay all costs of collection, including reasonable attorney fees, whether or not a lawsuit is commenced as part of the collection process.” (SAC Ex. 1, p. 1, § III.) Further, although Plaintiff did not expressly argue that he is the party prevailing on this contract, the court found in favor of Plaintiff and against Defendant on the first cause of action for breach of contract. (Mar. 8, 2024 Tentative Decision on Trial, p. 5:18-21; April 4, 2024 JUD-100, ¶¶ 3, 5.)

Thus, the court finds that (1) Plaintiff is “the party prevailing on the contract,” such that (2) Plaintiff may recover from Defendant reasonable attorney’s fees pursuant to the terms of the parties’ April 23, 2019 promissory note. (Civ. Code, § 1717, subd. (a).)

The court, however, finds that Plaintiff has not adequately supported his request for $96,850 in attorney’s fees.

“[T]he fee setting inquiry in California ordinarily begins with the ‘lodestar,’ i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate. . . . .¿ The reasonable hourly rate is that prevailing in the community for similar work.¿ 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.”¿ (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095 (internal citations omitted).)¿ “[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 Univ. (2005) 132 Cal.App.4th 359, 396.)¿¿

Plaintiff has submitted the declaration of his attorney, David D. Diamond, in support of his request for attorney’s fees.[1] Although Diamond has stated, in conclusory fashion, that “[t]here has been a total of 149 . . . hours spent on client preparation time, investigation, motion drafting, court appearance, and the hearing for fees as well as drafting this motion[,]” Diamond did not (1) attach any verified billing invoices or other work and time statements for the hours billed, or (2) describe the specific tasks and the number of hours billed for each task in his declaration. (Diamond Decl., ¶ 3.) Thus, the court finds that Plaintiff has not presented sufficient evidence to establish the number of hours that Diamond reasonably expended in connection with this action, such that the court cannot calculate the reasonable attorney’s fees incurred under the lodestar analysis.

The court therefore finds that it is appropriate, and exercises its discretion, to continue the hearing on this motion (1) to give Plaintiff an opportunity to file a revised declaration that is supported by sufficient evidence establishing the number of hours billed in this action, and (2) to give Defendant an opportunity to file an opposition to that evidence.

Defendant moves the court for an order (1) striking the Memorandum of Costs filed by Plaintiff on March 25, 2024 on the ground that Plaintiff was not the prevailing party in this action, or (2) taxing from the Memorandum of Costs all costs incurred after November 25, 2019 or (i) the $1,035 in filing fees (Item No. 1), (ii) the “TBD” request for attorney’s fees (Item No. 10), (iii) the $510 for models, enlargements, and photocopies (Item No. 13), and (iv) the $454.93 for electronic filing fees (Item No. 14).

Because the court has continued the hearing on Plaintiff’s motion for attorney’s fees, the court finds that it is appropriate, and therefore exercises its discretion, to continue the hearing on Defendant’s motion to strike or tax costs so that it may be heard at the same time as Plaintiff’s motion for attorney’s fees.[2]

The court orders that the hearing on plaintiff Jose Rubio’s motion for attorney’s fees is continued to May 30, 2025, at 10:00 a.m., in Department 53.

The court orders that (1) plaintiff Jose Rubio may file, no later than April 28, 2025, a supplemental declaration in support of his request for attorney’s fees that includes the information set forth in this ruling, and (2) defendant Andrew Altholz may file, no later than May 15, 2025, a supplemental opposition brief to plaintiff Jose Rubio’s supplemental declaration.

The court orders that the hearing on defendant Andrew Altholz’s motion to strike or tax costs and to clarify, amend, or modify judgment is continued to May 30, 2025, at 10:00 a.m., in Department 53.

The briefing on defendant Andrew Altholz’s motion to strike or tax costs and to clarify, amend, or modify judgment has been completed. The court orders that the parties may not file any further papers in connection with that motion.

[1] The court notes that it appears that Plaintiff is requesting attorney’s fees for the work performed by attorney Diamond only, and not for the work performed by any other attorney or legal staff. To the extent that Plaintiff is requesting attorney’s fees be awarded for work performed by another attorney, the court expects Plaintiff to submit evidence establishing the reasonable hourly rates of those attorneys.

[2] The court therefore has not ruled on the request for judicial notice and evidentiary objections filed in connection with Defendant’s motion to strike or tax costs.

jose rubio ; Plaintiff, vs. andrew altholz , et al.; Defendants.	Case No.:	19STCV36611

	Hearing Date:	February 20, 2025

	Time:	10:00 a.m.

	[tentative] Order RE: (1) plaintiff’s motion for attorney’s fees (2) defendant’s motion to strike or tax costs and to clarify, modify, or amend judgment