Judge Ronald F. Frank, Case Number: 22IWUD02600, Date: 2024-02-21 Tentative Ruling

Judge: Ronald F. Frank, Case: 22IWUD02600, Date: 2024-02-21 Tentative Ruling

Case Number: 22IWUD02600 Hearing Date: February 21, 2024 Dept: 8

Tentative Ruling¿

¿¿

HEARING DATE: February 21, 2024¿¿

¿¿

CASE NUMBER: 22IWUD02600

¿¿

CASE NAME: T.K.&S Development, L.P.;Hawthorne 14, LLC, v. Charles Thacker; Diana Thacker.

¿¿

MOVING PARTY: Defendants, Charles and Diana Thacker

¿¿

RESPONDING PARTY: Plaintiffs, T.K.&S Development, L.P and Hawthorne 14, LLC

¿¿

MOTION:¿ (1) Motion for Attorneys’ Fees

Tentative Rulings: (1) Defendants’ Motion for Attorneys’ Fees is GRANTED in a modestly reduced amount from what was sought, and oral argument is needed on several points. There is no challenge to Mr. Ishimatsu’s reduced hourly rate in this matter which was considerably less than awarded to Mr. Goldberg in the related arbitration case. Does Plaintiff concede the costs in the cost bill and only challenge specific line entries in the attorneys’ fees?

I. BACKGROUND¿¿

¿¿

A. Factual¿¿

On December 22, 2022, Plaintiff, T.K.&S. Development, L.P., and Hawthorne 14, LLC filed a Complaint for unlawful detainer against Defendant, Charles Thacker, Diana Thacker, and DOES 1 through 10. The Court conducted a bench trial over the course of several different days, ultimately issuing a “tentative decision after bench trial and proposed statement of decision” finding in favor of defendants on all counts of Plaintiff’s commercial unlawful detainer complaint. Neither party filed objections to the Court’s PSOD, making it now the final Statement of Decision. But costs and fees are still at issue. On December 12, 2023, Defendants filed their amended memorandum of costs as the prevailing party and in accordance with the Court’s instructions in the tentative decision. Defendants note that to date, plaintiffs have not filed a motion to tax costs. Defendants Charles and Diana Thacker now file a Motion for an award of contractual Attorneys’ Fees.

There was a separate proceeding between the parties, a contractual arbitration in which it appears TK&S prevailed and were awarded attorneys fees and costs. Counsel in the UD matter have taken pains to separate billing invoices relating to the arbitration matter versus the UD matter between the same parties. Retired Judge Bruguera issued a thorough and detailed decision awarding much of the Plaintiff’s attorneys fees and costs, excising a few claimed entries where the moving party did not carry its burden of providing a proper basis for mixed time entries where some of the time was claimed to be attributable to the arbitration case and some incurred for the UD case. Similar issues are raised here.

B. Procedural¿¿

On December 20, 2023, Defendants filed a Motion for Attorney Fees, Costs, and Expenses. On February 6, 2024, Plaintiff filed an opposition. On February 13, 2024, Defendants filed a reply brief.

II. ANALYSIS¿

A. Legal Standard

Attorney’s fees are recoverable when authorized by contract, statute, or law. (Code Civ. Proc., § 1033.5, subd. (a)(10).)

Pursuant to Code of Civil Procedure section 1033.5, subdivision (a)(10), attorney fees when authorized by contract, statute or law are allowable as costs and may be awarded upon a noticed motion pursuant to Code of Civil Procedure section 1033.5, subdivision (c)(5).

Where a contract specifically provides for attorney’s fees and costs incurred to enforce the contract, attorney’s fees and costs must be awarded to the party who is determined to be the prevailing party on the contract. (Civ. Code., § 1717, subd. (a).) “Reasonable attorney’s fees shall be fixed by the court and shall be an element of the costs of suit.” (Ibid.)

A prevailing party is defined as follows:

(4) “Prevailing party” includes the party with a net monetary recovery, a defendant in whose favor a dismissal is entered, a defendant where neither plaintiff nor defendant obtains any relief, and a defendant as against those plaintiffs who do not recover any relief against that defendant. If any party recovers other than monetary relief and in situations other than as specified, the “prevailing party” shall be as determined by the court, and under those circumstances, the court, in its discretion, may allow costs or not and, if allowed, may apportion costs between the parties on the same or adverse sides pursuant to rules adopted under Section 1034.

(Code Civ. Proc., § 1032, subd. (a)(4).)

In determining what fees are reasonable, California courts apply the “lodestar” approach. (See, e.g., Holguin v. DISH Network LLC (2014) 229 Cal.App.4th 1310, 1332.) This inquiry “begins with the ‘lodestar,’ i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate.” (See PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095.) From there, the “[t]he 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.” (Ibid.) Relevant factors include: “(1) the novelty and difficulty of the questions involved, (2) the skill displayed in presenting them, (3) the extent to which the nature of the litigation precluded other employment by the attorneys, [and] (4) the contingent nature of the fee award.” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132.)

The party seeking fees has the burden of documenting the appropriate hours expended and hourly rates. (City of Colton v. Singletary (2012) 206 Cal.App.4th 751, 784.) This burden requires competent evidence as to the nature and value of the services rendered. (Martino v. Denevi (1986) 182 Cal.App.3d 553, 559.) A plaintiff’s verified billing invoices are prima facie evidence that the costs, expenses, and services listed were necessarily incurred. (Hadley v. Krepel (1985) 167 Cal.App.3d 677, 682.)

B. Discussion

Here, Defendants moving papers indicate that they are seeking attorneys’ fees for prevailing in this action in the amount of $50,452.50, upped to $51,122.50 in Mr. Ishimatsu’s 2^nd Supplemental Declaration. However, after the filing of Plaintiffs’ opposition, Defendants note that they have agreed with some of Plaintiff’s arguments on items that should not have been included in Defendants’ request for attorneys’ fees. A recalculation of the amount sought needs to be accomplished. The issues conceded or discussed by the parties include:

June 2022 invoice – Plaintiffs argued that these invoices for the total amount of $1,522.50 related only to the arbitration issues and not the current action. Defendants conceded this, and have now agreed to remove it from the amount sought.

July 2022 invoice – Plaintiffs’ opposition argues that all 6 of the time entries in the July 222 invoice, totaling $3,010 should be disallowed because they purportedly relate to issues in the arbitration and not this unlawful detainer action. Defendants, in their opposition, note that they agree in part. Although Defendants agree that the first three time entries totaling $1,190 relate to issues in the arbitration and should therefore be disallowed, Defendants disagree that the last 3 time entries should be disallowed because they relate to the repair issues and permits that later were central to the unlawful detainer action and the threatened eviction as a result thereof.

Plaintiffs’ opposition regarding the invoices does not discuss the July 22, 2022 charge, however, with the other two remaining charges on the July 2022 invoice (July 25 and July 27, 2022) (assuming these entries were mistakenly identified as being dated in 2023), Plaintiffs argue these entries are improper. Plaintiff asserts that they had not raised issues of repairs and permits regarding the property as of that date. In their reply brief, Defendants argue that the repair issues were central to the unlawful detainer action and the threatened eviction as a result thereof. However, this Court notes that this case was not even filed until December 2022. The Court does not believe moving party has carried its burden in showing how the July 2022 invoices relate the present unlawful detainer action and not the arbitration issue generally. The Court will allow oral argument as to these issues, but the Court’s tentative ruling is to DENY the $3,010 amount in attorneys’ fees in the July 2022 invoice.

August Billing (Invoice Dated November 25, 2022) – Plaintiffs’ opposition argues that all seven time entries for August 2022 ($4,025) should be disallowed because they purportedly relate only to the arbitration and not this unlawful detainer action. Defendants agree that the first 4 entries related to the arbitration and should be disallowed in the amount of $2,205. However, Defendants argue that the remaining 3 entries do relate to the repair issues central to the unlawful detainer action and should be allowed. Defendants note that they had discussions with attorney Stephen Goldberg about the repair issues in August 2022 which manifested themselves in the September 1, 2022 letter from Mr. Goldberg. As such, Defendants still seek a total of $2,275 as to this line item.

The Court seeks oral argument from the parties as to the August 25, 28, and 30, 2022 charges and how they relate to the current action, and to attorneys’ fees incurred prior to the filing of this action. Also, it is unclear based on the invoice entries whether these charges were tied to the arbitration issue or whether they have to do with a potential filing of this case. The Court notes that the September 5, 2022 time entry references a letter from Mr. Goldberg just days before re “alleged repairs and lease violations,” but this reference is somewhat vague.

February 7, 2023 – Defendants seek $175 for a 0.5 time entry to review Mr. Goldberg’s demand for an unlawful detainer trial. Defendants submit that this is a reasonable time to spend in analyzing the demand and its impact on the parties’ business relationship. The Court agrees with the defense that this is a reasonable amount of time to spend given the relationship of the parties and the impact that a contested trial might have on the relationship. As such, those fees will be granted.

February 17, 2023 – Plaintiffs challenge Defendant’s 2.5 hour time entry of “Drafted Requests for Admission and Requests for Documents,” drafts which were begun on that date. Plaintiffs argue that these discovery requests were not in the unlawful detainer action but in the arbitration as they were sent to the arbitrator for approval by Defendants’ counsel on February 17, 2023 (Goldberg Decl., ¶ 15, Exhibit K.) Moreover, Plaintiffs note that on February 18, 2023, counsel billed for the Requests for Admission which are specifically identified for the unlawful detainer. Plaintiffs argue that the February 18, 2023 charge is acceptable, but the $875 charge on February 17, 2023 was not because the February 17^th requests were for arbitration, not for the unlawful detainer action.

In Defendants’ reply brief, they argue that the RFAs were in fact drafted for the unlawful detainer action as seen in Defendants’ attached Exhibit B to the reply brief. Defendants clarify that on February 18, 2023, he completed the draft of the RFAs and spent 1.5 hours and that there is no duplication of effort. This Court will allow oral argument as to this issue, however, it appears that the February 17, 2023 and February 18, 2023 charges are, as Defendants represent, connected. As such, the Court is inclined to GRANT these fees.

March 21, 2023 – Plaintiffs challenge the time entry on March 21, 2023 for 1.8 hours ($680) (“Reviewed TKS Discovery Responses) but admit that one of the responses was indeed related to the discovery in the unlawful detainer action. Plaintiffs argue that two of the three discovery responses were already served in the arbitration and thus the time Defendants’ counsel stated was used to review these responses should be reduced. The Court agrees and reduces the amount to 0.6 hours ($223.67).

Finally, the Court notes that there is some confusion as to the requested amount as it as changed in the reply brief to an originally requested amount of $56,957.50 but noting that $4,917.50 is disallowable, and instead requests $52,040. Defendants also clarify in their reply brief that they seek costs in the amount of $23,868.05. However, the Court notes that the originally requested amount, in Defendants’ moving papers was $50,452.50 prior to the concession of lowering amounts, and the Court’s own lowering of amounts. Further, Defendants’ memorandum of costs filed on December 12, 2023 identifies a request for costs in the amount of $13,300.83. Defendants will need to clarify these discrepancies before the Court.