Judge Sandy N. Leal, Case 2020-01166729 2023-08-03 Tentative Ruling

Judge: Sandy N. Leal, Case: 2020-01166729, Date: 2023-08-03 Tentative Ruling

Motion for Attorney Fees

Defendants/Cross-Complainants Merritt McKeon and Eric Turkel Motion for Attorney Fees and Costs is GRANTED in part and DENIED in part.

Defendants/Cross-Complainants seek an order awarding their attorneys’ fees in the amount of $238,950.00 and expert costs in the amount of $8,960.00.

Defendants/Cross-Complainants seek an entry of an Amended Judgment in the following amounts: a.) As against Plaintiffs, Denise Thomas and Ernest Calhoon, recoverable costs pursuant to statute, in the joint and several amount of $8,424.85. b.) As against Cross-Defendant, Ernest Calhoon, Attorneys Fees in the sum of $240,975.00; and c) As against Cross-Defendant, Ernest Calhoon, expert costs incurred for experts/consultants in the sum of $8,960.00.

Attorney Fees

Basis for Fees: When authorized by contract, statute or law reasonable attorney fees are “allowable costs.” (Code Civ. Proc. § 1033.5(a)(10)(A), (B) & (C); Santisas v. Goodin (1998) 17 Cal.4th 599, 606; Pacific Custom Pools, Inc. v. Turner Const. Co. (2000) 79 Cal.App.4th 1254, 1268; see Harris v. Wachovia Mortg., FSB (2010) 185 Cal.App.4th 1018, 1027.)

Code Civ. Proc. §1021.6 provides: “Upon motion, a court after reviewing the evidence in the principal case may award attorney's fees to a person who prevails on a claim for implied indemnity if the court finds (a) that the indemnitee through the tort of the indemnitor has been required to act in the protection of the indemnitee's interest by bringing an action against or defending an action by a third person and (b) if that indemnitor was properly notified of the demand to bring the action or provide the defense and did not avail itself of the opportunity to do so, and (c) that the trier of fact determined that the indemnitee was without fault in the principal case which is the basis for the action in indemnity or that the indemnitee had a final judgment entered in his or her favor granting a summary judgment, a nonsuit, or a directed verdict.”

On 10-11-2019, Defendants/Cross-Complainants demanded indemnification from Calhoon. (Decl. Christopher Bayuk, Ex. B.) On 9-1-22, the Court granted summary adjudication of Defendants/Cross-Complainants Equitable Indemnity cause of action. (Ex. A, ROA 1112.)

Thus, Defendants/Cross-Complainants have established a statutory basis for fees. In response, Plaintiff/Cross-Defendant Earnest Calhoon did not argue that Defendants/Cross-Complainants do not have a basis for fees. Calhoon only argues that the Motion for Attorney Fees was taken off-calendar. However, the Court made clear on 6-1-23 that the Motion was not taken off-calendar and the Court would rule on the merits. Furthermore, the Court allowed Plaintiff to file another Opposition to address the merits given he thought the motion was taken off-calendar.

California Rules of Court, rule 3.1113(b), states, “The memorandum must contain a statement of facts, a concise statement of the law, evidence and arguments relied on, and a discussion of the statutes, cases, and textbooks cited in support of the position advanced.” Quantum Cooking Concepts, Inc. v. LV Associates, Inc. (Quantum) (2011) 197 Cal.App.4th 927, 934, explains, “Rule 3.1113 rests on a policy-based allocation of resources, preventing the trial court from being cast as a tacit advocate for the moving party's theories by freeing it from any obligation to comb the record and the law for factual and legal support that a party has failed to identify or provide. On the record in this case, the trial court was justified in declining to look beyond that failure.”

The court recognizes that California Rules of Court, rule 3.1113(b), applies to a memorandum in support of a motion. The court, however, finds that the reasoning in Quantum is applicable to Plaintiff’s failure to address the merits. It is not the court’s responsibility to identify legal theories that may support Plaintiff’s Opposition.

Based on the foregoing, the Court finds that there is a proper basis for fees.

Lodestar: Generally, in determining the amount to be awarded, the Court starts with a touchstone or lodestar figure, which is based on the careful compilation of the time spent and reasonable hourly compensation of each attorney involved in the presentation of the case. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131-1132.) Fee setting ordinarily begins with the “lodestar”—i.e., a touchstone figure based on the number of hours reasonably expended multiplied by the reasonable hourly rate. (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095-1097—lodestar “presumably reasonable” method for calculating fees.)

Hourly rate: Attorney Christopher Bayuk provides that his reasonable hourly rate is $450.00. Calhoon does not argue that this rate is not reasonable. Additionally, as Defendants/Cross-Complainants point out, $450.00 is the same hourly rate cross-defendant Calhoon charges. (Decl. Christopher Bayuk ¶¶ 19-20; ROA 940 @ 8:14-16.)

However, on Exhibit E (the time records) it shows that Christopher Bayuk’s rate is $225.00, not $450.00. Cross-Complainants/Defendants cite Chacon v. Litke, (2010) 181 Cal. App. 4th 1234, 1260 (Chacon), which states: “‘The reasonable market value of the attorney's services is the measure of a reasonable hourly rate. [Citations.] This standard applies regardless of whether the attorneys claiming fees charge nothing for their services, charge at below-market or discounted rates, represent the client on a straight contingent fee basis, or are in-house counsel. [Citations.]’ (Pearl, Cal. Attorney Fee Awards, supra, § 12.26, pp. 358–359.) Clearly, the court here did not abuse its discretion in awarding $350 per hour as a reasonable hourly rate for McCurdy.”

Based on the foregoing, the Court finds that the $450 fee is reasonable.

Amount of hours: Cross-Defendants spent a total of 531 hours of attorney time between June 18, 2019 and December 19, 2022 on this matter. The Court finds that this amount of hours is reasonable considering the countless motions, discovery disputes, ex parte applications, etc. in this case.

Additionally, Christopher W. Bayuk estimates that he will spend approximately 2.5 hours preparing a reply brief and 2.0 appearing at the hearing. This is reasonable considering Defendants/Cross-Complainants did prepare a Reply brief and this will be the second hearing on this motion.

Thus, the Court finds that 535.5 hours is reasonable.

Multiplier: Cross-Complainants/Defendants do not request a multiplier and, therefore, the Court does not award one.

Based on the foregoing, the Court awards $240,975.00 (535.5 hours multiplied by $450.00) in attorney fees.

Costs

Cross-Complainants/Defendants seek $8,960.00 in expert costs and $8,424.85 in costs.

A prevailing party is usually entitled as a matter of right to recover costs in any action or proceeding. (Civ. Proc. Code § 1032(b).) If the items on a verified memorandum of costs appear to be proper charges, the memorandum is prima facie evidence of their propriety and the burden is on the party contesting them to show that they were not reasonable or necessary. (Foothill-De Anza Comm. College Dist. v. Emerich (2007) 158 Cal.App.4th 11, 29; Wagner Farms, Inc. v. Modesto Irrigation Dist. (2006) 145 Cal.App.4th 765, 773-74.) The party challenging costs does not meet this burden by arguing that the costs were not necessary or reasonable, but must present evidence and prove that the costs are not recoverable. (Seever v. Copley Press, Inc. (2006) 141 Cal.App.4th 1550, 1557; see also Wagner Farms, 145 Cal.App.4th at 777-78.) If the claimed items are not expressly allowed by statute and are objected to by a motion to strike or tax costs, the burden of proof is on the party claiming them as costs to show that the charges were reasonable and necessary. (Foothill-De Anza Comm. College Dist., 158 Cal.App.4th at 29.) Whether a cost item was reasonably necessary to the litigation is a question of fact for the court to determine. (Id. at 29-30.)

Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 856 (Benach), explains, “In Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774, 23 Cal.Rptr.2d 810 (Ladas), on which Benach primarily relies, the court held: ‘[i]f the items appearing in a cost bill appear to be proper charges, the burden is on the party seeking to tax costs to show they were not reasonable or necessary. On the other hand, if the items are properly objected to, they are put in issue and the burden of proof is on the party claiming them as costs. [Citations.]’ Benach interprets this language to mean his objection automatically shifted the burden to the Department to demonstrate its costs were reasonable and necessary. His reading of Ladas is incorrect. [¶] The objecting party made a similar mistake in Nelson. Our colleagues in Division Seven clarified the standard: ‘the mere filing of a motion to tax costs may be a “proper objection” to an item, the necessity of which appears doubtful, or which does not appear to be proper on its face. [Citation.] However, “[i]f the items appear to be proper charges the verified memorandum is prima facie evidence that the costs, expenses and services therein listed were necessarily incurred by the defendant [citations], and the burden of showing that an item is not properly chargeable or is unreasonable is upon the [objecting party].” [Citations.]’ [Citation.].”

“Where costs are not expressly allowed by the statute, the burden is on the party claiming the costs to show that the charges were reasonable and necessary.” (Foothill-De Anza Community College Dist. v. Emerich (2007) 158 Cal.App.4th 11, 29-30.)

Here, Cross-Complainants/Defendants are the prevailing parties. Cross-Complainants/Defendants also properly filed a Memorandum of Costs and the Court denied Plaintiffs/Cross-Defendants Motion to Strike on 2-23-23. The Court ruled that Plaintiff Denise Thomas and Plaintiff Ernest Calhoon are jointly and severally liable for costs in the amount of $8,362.50. The Court amends the Judgment to include this award of costs.

Cross-Complainants/Defendants also contend that Plaintiff Denise Thomas and Plaintiff Ernest Calhoon should pay their expert witness costs in the amount of $8,960.00.

Olson v. Auto. Club of S. California, (2008) 42 Cal. 4th 1142, 1149 states: “Pursuant to subdivision (b)(1), fees of expert witnesses not ordered by the court (see § 1033.5, subd. (a)(8)) are not allowable as costs unless ‘expressly authorized by law.’ (§ 1033.5, subd. (b)(1).)”

Here, because the costs for expert witness fees not ordered by the court “are not expressly allowed by the statute, the burden is on the party claiming the costs to show that the charges were reasonable and necessary.” (Foothill-De Anza, supra, 158 Cal.App.4th at 29-30.)

Cross-Complainants/Defendants do not provide any authority as to why Plaintiffs/Cross-Defendants should be ordered to pay these costs. Furthermore, it is unclear why they were not included in the memorandum of costs.

Based on the foregoing, the Court denies this request for expert costs.

Based on the foregoing, the Court GRANTS in part and DENIES in part Defendants/Cross-Complainants Merritt McKeon and Eric Turkel Motion for Attorney Fees and Costs.

Defendants/Cross-Complainants are ordered to file an amended judgment within 10 days of this ruling.

Defendants/Cross-Complainants to give notice.

Motion to Correct Clerical Error

Plaintiffs Denise Thomas, Laia Grace Thomas and Ernest Calhoon (Guardian Ad Litem) Motion to Correct Clerical Error is DENIED as moot.

At the hearing regarding Plaintiff’s “Motion for Relief” on 4/20/23, Judge Wilkinson stated that in light of the appeal, he believed he had no jurisdiction and intended to take all pending motions off calendar, including the pending motion for attorney fees. (See Opposition [ROA 1605], Exhibit 1.) However, the minute order for 4/20/23 conflicted with Judge Wilkinson’s oral comments – the minute ordered stated, “the Court stays the action except for the Motion for Attorney Fees set for 6-1-23.” (See ROA 1593, emphasis added.)

Judge Wilkinson’s Minute Order, rather than his oral comments, correctly applied the law. The Court may rule on a motion for attorney fees after judgment even though an appeal is pending. (Domestic Linen Supply Co., Inc. v. L J T Flowers, Inc. (2020) 58 Cal.App.5th 180, 187 [“It is well settled that the filing of an appeal does not stay a motion for attorney fees”]; Korchemny v. Piterman (2021) 68 Cal.App.5th 1032, 1052 [filing of notice of appeal does not deprive trial court of jurisdiction to award attorney fees and costs post trial].)

Here, regardless of the confusion caused by the conflicting oral statement by Judge Wilkinson, the Court cleared this up on 6-1-23 when it continued the hearing, explained that it would rule on the merits, and allowed further briefing. Thus, assuming arguendo Judge Wilkinson’s oral order took the motion off-calendar, the Court put it back on calendar on 6-1-23. According to the applicable law, it is supposed to be on calendar.

Code Civ. Proc. § 128(a)(8) provides that a cour shall have the power “[t]o amend and control its process and orders so as to make them conform to law and justice.”

Based on the foregoing, the Court DENIES the motion as moot.

Defendants/Cross-Complainants to give notice.