Judge Robert B. Broadbelt, Case BC695428 2023-03-14 Tentative Ruling

The court considered the moving papers filed in connection with this motion. No opposition papers were filed.

Plaintiff Fortis Development, LLC (“Plaintiff”) moves the court for an order awarding Plaintiff attorney’s fees and costs in the amount of $342,398.97 against defendants Mia D. Boykin and Edward W. Boykin Construction Company, jointly and severally.

First, the court notes that Plaintiff has informed the court that defendant Mia D. Boykin filed a Chapter 7 Bankruptcy case on October 26, 2022, and therefore all judicial proceedings are stayed as to that defendant. (Pl. Notice of Bankruptcy Filing, Ex. A; Higgins v. Superior Court (2017) 15 Cal.App.5th 973, 979 [“The filing of a voluntary chapter 7 bankruptcy petition ‘operates as a stay, applicable to all entities of—[¶] (1) the commencement or continuation … of a judicial … action or proceeding against the debtor’”].) The court therefore orders that the hearing on Plaintiff’s motion for attorney’s fees is off calendar as to Mia D. Boykin, subject to being rescheduled if the bankruptcy stay is lifted.

Second, the court grants Plaintiff’s motion as to defendant Edward W. Boykin Construction Company (“Defendant”).

“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).) Upon motion, the court shall determine who is the party prevailing on the contract for purposes of section 1717. (Civ. Code, § 1717, subd. (b)(1).)

Plaintiff and nonmoving plaintiff Jeffrey Thomas filed the operative Third Amended Complaint in this action on September 26, 2019, alleging 17 causes of action against, inter alia, Defendant. On February 16, 2022, the court granted Plaintiff’s motion for summary adjudication as to its 11th cause of action for breach of contract—lumber supply contract, 12th cause of action for breach of guaranty, and 17th cause of action for disgorgement pursuant to Business and Professions Code section 7031. The remaining causes of action and defendant were later dismissed. On May 17, 2022, the court entered judgment in favor of Plaintiff and against Defendant and Mia Boykin, jointly and severally.

Plaintiff submits a copy of the Lumber Agreement and Guaranty executed by Defendant and Mia D. Boykin. (Cornelius Decl., Ex. 1.) This copy is partially illegible. (Ibid.) However, Plaintiff has also submitted a blank copy of the application form that is legible. The lumber agreement includes the following provision: “Should suit be instituted to collect any obligation of the undersigned, the undersigned agrees to pay all actual costs of collection, attorney’s fees and interest on the past due amount at the highest rate legally available.” (Cornelius Decl., Ex. 1, Application for Credit, p. 2.)

The court therefore finds that Plaintiff, as the prevailing party on the contract, is entitled to an award of attorney’s fees and costs on the 11th cause of action against Defendant[1] pursuant to (1) the attorney’s fees provision in the lumber agreement and guaranty, and (2) Civil Code section 1717.

The court further finds that Plaintiff is entitled to an award of attorney’s fees and costs on the 17th cause of action for disgorgement. In support of this cause of action, Plaintiff alleged that (1) Defendants failed to maintain a valid contractor’s license at all times; (2) Plaintiff, by engaging their services, utilized the services of an unlicensed contractor and therefore sought to recover all compensation paid to Defendant; and (3) Defendant unlawfully took Plaintiff’s money under the subcontract. (TAC ¶¶ 115-118.) Thus, Plaintiff argues that, because it initiated this action based on Defendant’s breach of the subcontract and later discovered the failure to maintain proper licensure, this action was commenced due to Defendant’s breach of the subcontract and therefore Plaintiff may obtain an award of attorney’s fees in connection with this cause of action.

Plaintiff asserts, in its motion, that the subcontract includes an attorney’s fee provision that states the following: “In the event of a dispute arising out of or relating to this Agreement, the prevailing party shall be entitled to recover from the other party its attorneys’ fees, costs, expert’s costs and expenses incurred in connection with the prosecution or defense of such action, whether or not the action is prosecuted to a final judgment. For purposes of this Agreement, the term ‘attorneys’ fees’ shall mean the fees and expenses of counsel to the parties hereto, which may include printing, paralegals and other persons not admitted to the bar but performing services under the supervisions of an attorney, including, but not limited to, expert witnesses.”[2] (Mot., p. 4:3-10.) The court finds that the 17th cause of action encompasses “a dispute arising out of or relating to” the subcontract and therefore finds that Plaintiff may obtain attorney’s fees in connection with this cause of action.

“[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’s attorney, Alexandre Ian Cornelius, states that counsel has been practicing law for 26 years and the billing rate is commensurate with other attorneys in Los Angeles with the same level of skill and experience. (Cornelius Decl., ¶ 5.) Attached to counsel’s declaration are (1) copies of the invoices showing the attorney’s fees and costs incurred by Plaintiff, and (2) the monthly amounts billed by Plaintiff’s attorneys in a spreadsheet. (Ibid.; Cornelius Decl., Exs. 2-3.) The invoices establish that Plaintiff’s legal team billed at the following hourly rates: (1) $245 for work performed by Justin Cohanghadosh during the period of August 3, 2018 through January 12, 2022; (2) $445 for work performed by Sumar R. Saad; (3) $545 for work performed by Alexandre Ian Cornelius; (4) $495 for work performed by Lewis B. Adelson; (5) $150 for work performed by an unidentified Law Clerk for the billed in connection with the June 10, 2019 through May 21, 2021, and December 6, 2021 invoices; (6) $195 for work performed by an unidentified Law Clerk during the periods of time billed on the July 14, 2021 and October 19, 2021 invoices; (7) $400 for work performed by Justin Cohanghadosh during the periods of time billed for the February 3, 2022 and March 2, 2022 invoices; and (8) $175 for work performed by an unidentified Law Clerk during the periods of time billed for the February 3, 2022 and March 2, 2022 invoices. (Cornelius Decl., Ex. 2.) The hours are also included on each of the invoices. (Ibid.)

The court finds that the hourly rates charged and requested by Plaintiff’s attorneys are reasonable. The court further finds that the hours expended by Plaintiff’s attorneys, as set forth in the verified timekeeper summaries within the invoices submitted by Plaintiff, are reasonable.

The court therefore finds that Plaintiff has submitted evidence establishing a lodestar of $326,665. (Cornelius Decl., ¶ 4 [“Plaintiff incurred $326,655 in attorneys’ fees”]; Cornelius Decl., Ex. 3, p. 1 [summary showing attorney’s fees in amount of $326,665].)

The court further finds that Plaintiff has supported its requests for costs in the amount of $15,672.22. The court notes that counsel, in his declaration, states that Plaintiff incurred…$15,733.87 in reasonable costs related to this action.” (Cornelius Decl., ¶ 4.). However, the summary of costs submitted with the motion shows that total costs incurred by Plaintiff amounts to $15,672.22. (Cornelius Decl., Ex. 3 [summary of costs totaling $15,672.22].) Thus, the court finds that Plaintiff has supported its request for costs only in the amount of $15,672.22.

Finally, the court notes that Plaintiff’s counsel appears to request an additional $4,760 in his declaration, by stating that counsel expects to bill approximately 8 additional hours to prepare a reply brief and appear at the hearing on this motion. (Cornelius Decl., ¶ 4.) However, Plaintiff did not request this additional amount in its notice of motion or in its supporting memorandum of points and authorities. The court therefore declines to award this additional amount.

The court therefore finds that Plaintiff is entitled to an award of attorney’s fees and costs in the total amount of $342,337.22 ($326,665 + $15,672.22).

The court takes off calendar the hearing on plaintiff Fortis Development, LLC’s motion for attorney’s fees as to defendant Mia D. Boykin, subject to being rescheduled if the bankruptcy stay is lifted.

The court grants plaintiff Fortis Development, LLC’s motion for attorney’s fees as to defendant Edward W. Boykin Construction Company.

The court orders that plaintiff Fortis Development, LLC shall recover a total of $342,337.22 from defendant Edward W. Boykin Construction Company in attorney’s fees and costs pursuant to Civil Code section 1717.

The court orders plaintiff Fortis Development, LLC to give notice of this ruling.

[1] The court notes that the 12th cause of action for breach of guaranty is asserted only against defendant Mia D. Boykin.

[2] Plaintiff did not attach a copy of the subcontract to its motion. However, the court has reviewed the “Declaration of Jeffrey Thomas in Support of Plaintiff Fortis Development, LLC’s Motion for Summary Adjudication,” filed by Plaintiff on July 8, 2021, in support of its motion for summary adjudication, which attaches a copy of the subcontract. The court has confirmed that the subcontract includes this provision. (Thomas Decl., filed July 8, 2021, Ex. 2, ¶ 19.0, subd. (B).)

jeffrey thomas , et al.; Plaintiffs, vs. mia d. boykin , et al.; Defendants.	Case No.:	BC695428

	Hearing Date:	March 14, 2023

	Time:	10:00 a.m.

	[Tentative] Order RE: plaintiff’s motion for attorney’s fees