Judge: Robert B. Broadbelt, Case: 20STCV25965, Date: 2022-08-11 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.

Case Number: 20STCV25965    Hearing Date: August 11, 2022    Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

MOVING PARTY:                Plaintiff The National Collection Agency

RESPONDING PARTY:       Unopposed

Plaintiff’s Motion for Attorney’s Fees

DISCUSSION

Plaintiff The National Collection Agency (“Plaintiff”) moves the court for an order awarding attorney’s fees in the amount of $10,912.50 against defendants Seth Sundberg (“Sundberg”) and Prison Bars, Inc. (“Prison Bars”) (collectively, “Defendants”).

Default was entered against Defendants on September 8, 2020.  Pursuant to the oral stipulation of Plaintiff and Sundberg, the default against Sundberg was set aside on November 19, 2020.  On January 19, 2022, the court concurrently conducted the nonjury trial on Plaintiff’s Complaint against Sundberg and the default prove-up hearing as to Prison Bars, finding in favor of Plaintiff on its cause of action for breach of contract.  Judgment was entered against Defendants and in favor of Plaintiff on March 3, 2022, in the amount of $52,936.65, consisting of $44,421.36 in damages and $8,515.29 in interest.

Plaintiff now moves for an award of attorney’s fees in the amount of $10,912.50 as the prevailing party at trial.

First, the court finds that Plaintiff is not entitled to an award of attorney’s fees against defaulted defendant Prison Bars.  A request for attorney’s fees against a defaulted defendant must be made at the time default judgment is sought.  (Cal. Rules of Ct. Rule 3.1800, subd. (a)(9); Garcia v. Politis (2011) 192 Cal.App.4th 1474, 1476-1477 [“A plaintiff electing to proceed by way of a default judgment may recover statutory attorney fees only if a request for those fees is included in the request for default judgment”].)  On January 19, 2022, the court held the nonjury trial on Plaintiff’s Complaint against Sundberg and the default prove-up hearing as to Prison Bars.  At the default prove-up hearing, Plaintiff failed (1) to request that the court award attorney’s fees against Prison Bars and (2) to prove any request for attorney’s fees.  By failing to request and prove-up attorney fees at the default prove-up hearing, Plaintiff has forfeited its right to obtain attorney’s fees against defendant Prison Bars.  (Vincent v. Sonkey (2020) 59 Cal.App.5th 160, 161 [“When a plaintiff requests entry of judgment by default, a request for attorney fees must be made at the same time or the fees are forfeited”]; Garcia, supra, 192 Cal.App.4th at pp. 1476-1477.)  The court therefore denies Plaintiff’s motion for attorney’s fees as to defendant Prison Bars.

Second, the court finds that Plaintiff is entitled to an award of attorney’s fees against defendant Sundberg.

“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).)  In support of its motion, Plaintiff submits the following two agreements: (1) the Unconditional and Continuing Guaranty executed by Sundberg, wherein Sundberg agreed to reimburse Plaintiff (as assignee of Main Street Launch) “for all expenses, including reasonable fees and expenses of its legal counsel,” incurred in connection with the obligations or the collection thereof, or the enforcement of any provisions of the agreement, and (2) the Loan Agreement executed by Prison Bars, wherein Prison Bars agreed to pay all costs, expenses and fees, including reasonable attorney’s fees incurred in connection with collection (in the case of default) or any dispute between the parties.  (Miles Decl., ¶ 6, Ex. C, p. 5, § j., subd. (b); Miles Decl., Ex. D, p. 11, § 7, subd. (i).)

Thus, the court finds that Plaintiff has demonstrated that it is entitled to attorney’s fees from Sundberg pursuant to the terms of the Unconditional and Continuing Guaranty because Plaintiff is the party prevailing on the contract.  (Civ. Code § 1717, subd. (a).)

“[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 submits the declaration of its counsel, Brian B. Miles, in support of its motion.  Plaintiff requests the court award attorney’s fees for 29.1 hours billed by counsel at the rate of $375 per hour.  (Miles Decl., ¶ 2.)

First, the court finds that the hourly rate of $375 is reasonable based on the qualifications and experience of counsel.  (Miles Decl., ¶¶ 2, 9.)

Second, the court finds that the number of hours for which Plaintiff incurred attorney’s fees is reasonable.  Plaintiff submits the verified, itemized time entries of counsel, which establish that counsel billed 21.6 hours, or $8,100 (21.6 hours x $375 hourly rate) to litigate this action from the period of November 1, 2021 through January 19, 2022.  (Miles Decl., ¶ 2; Miles Decl., Ex. A.)  Counsel also states in his declaration that 7.5 hours, or $2,812.50 (7.5 hours x $375 hourly rate), have been billed to prepare this motion for attorney’s fees, which the court finds to be a reasonable number of hours billed in connection with this motion.  (Miles Decl., ¶ 2.)

Based on the evidence presented by Plaintiff, the court finds that Plaintiff has established that the appropriate lodestar figure amounts to a total of $10,912.50.

The court therefore grants Plaintiff’s motion for attorney’s fees as to defendant Sundberg.

ORDER

            The court grants plaintiff The National Collection Agency, Inc.’s motion for attorney’s fees against defendant Seth Sundberg.

            The court denies plaintiff The National Collection Agency, Inc.’s motion for attorney’s fees against defendant Prison Bars, Inc.

 The court orders that plaintiff The National Collection Agency, Inc. shall recover $10,912.50 in attorney’s fees from defendant Seth Sundberg.

The court orders plaintiff The National Collection Agency, Inc. to give notice of this order.

IT IS SO ORDERED.

DATED:  August 11, 2022

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court