Judge Shirley K. Watkins, Case 21VECV01091 2022-10-18 Tentative Ruling

Judge: Shirley K. Watkins, Case: 21VECV01091, Date: 2022-10-18 Tentative Ruling

If ALL parties submit on the tentative, then no appearance is necessary unless some other matter (i.e., Case Management Conference) is on calendar. It is not necessary to call the court to request oral argument. Oral argument is permitted on all tentative rulings.

Case Number: 21VECV01091 Hearing Date: October 18, 2022 Dept: T

TENTATIVE RULING

MOTION FOR FEES AND COSTS

KBK seeks its reasonable fees and costs that it incurred for the Truongs which totals $65,501.05, consisting of $63,002.50 in fees across 137.50 hours of attorney and staff time, as well as $2,498.55 in costs and expenses. KBK’s attorneys’ time records describe each of the tasks KBK engaged in to bring this case to resolution.

Attorney’s fees are awarded to a prevailing party either by contract or by statute. The settlement agreement in this case constitutes a contract. After a motion to enforce the settlement, the terms of the settlement agreement became a judgment. The judgment states as follows:

“GPP shall pay reasonable attorneys’ fees, costs, and expenses associated with the prosecution of the ACTION to the TRUONGS counsel, Kemnitzer Barron & Krieg LLP. Following the Court’s entry of the INJUNCTION, and after payment has been made to the TRUONGS, the PARTIES will seek to resolve attorneys’ fees, costs, and expenses informally without the need for a motion. However, if the PARTIES are unable to resolve the matter of attorneys’ fees, costs, and expenses informally, the TRUONGS counsel shall be entitled to apply to the Court via noticed motion for attorneys’ fees, costs, and expenses. The TRUONGS will be considered prevailing party for purposes of any necessary fee motion and shall be entitled to reasonable attorneys’ fees, costs, and expenses pursuant to the fee shifting provisions of Civil Code §1780(e), §1788.30(c), and Welf. & Inst. §15657.5(a).”

Accordingly, by contract, which was converted into a judgment, GPP is obligated to reasonable attorney fees, costs, and expenses to the Truongs pursuant to Civil Code §1780(e), §1788.30(c), and Welf. & Inst. §15657.5(a). No other fees are allowed. Accordingly, to the extent that the Truongs seek attorney’s fees under any other statutes, as this case did not go to trial, they are limited to the statutes that they agreed to in the settlement agreement. Otherwise, the court is not going to “try” this case on other theories of liability. The settlement agreement, now incorporated into the judgment, sets forth the grounds under which fees may be awarded.

Under the CLRA, “[t]he court shall award court costs and attorney's fees to a prevailing plaintiff in litigation filed pursuant to this section.” Civ. Code §1780(e). Similarly, under the Rosenthal Act, “[i]n the case of any action to enforce any liability under this title, the prevailing party shall be entitled to costs of the action. Reasonable attorney's fees, which shall be based on time necessarily expended to enforce the liability, shall be awarded to a prevailing debtor. Civ. Code §1788.30(c) (emphasis supplied) Likewise, under the Elder Abuse Act, “when a plaintiff proves “by a preponderance of the evidence that a defendant is liable for financial abuse, as defined in Section 15610.30, in addition to compensatory damages and all other remedies otherwise provided by law, the court shall award to plaintiff reasonable attorney’s fees.

Civil Code section 1780 states that the court shall award costs and attorney’s fees to a prevailing party. By contract and judgment, the parties have agreed that the Truongs are the prevailing party. Civil Code section 1788.30 and Welfare and Institutions Code section 15657.5 state the same. GPP has already agreed that the Truongs are entitled to fees under these sections. Accordingly, the court determines whether the fees and costs requested by the Truongs are reasonable.

All of the costs claimed here are authorized by Code of Civ. P. §1033.5(a). KBK seeks an award of costs and expenses of $2,498.55. These costs are detailed on pages 18-19 of Exhibit 4 to the Kemnitzer Declaration, and they appear reasonable and recoverable.

The court uses the lodestar approach in determining the fees. It has reviewed in detail all declarations in support of the motion to identify the type of work that was done, who did the work, how long it took to do the work, and the hourly rate for the services provided. The court also read and considered all papers filed in support of and in opposition to the motion. The complaint was filed 8/17/2021 and the case continues to today. Substantial work was done by the attorneys representing the Truongs. This includes answering the complaint, filing an amended cross-complaint, serving discovery, meet and confers, drafting an opposition to a demurrer, research, meetings, preparation, and attendance at multiple court hearings, participating in the MSC, and filing the motion to enforce the settlement, as well as this motion for fees. The court finds the number of hours expended to be reasonable.

Concerning the hourly rate, the rate of $550 per hour is reasonable based upon the evidence submitted by declaration and based upon the usual rates for services provided by attorneys with the same experience on the same types of cases as seen in this court.

Accordingly, pursuant to the settlement agreement, the judgment, Civil Codes §1780(e), §1788.30(c), and Welf. & Inst. §15657.5(a), the court awards attorney fees in favor of the Truongs and against Green Power Pros, Inc. in the sum of $63,002.50 and costs in the amount of $2,498.55.

GOOD CAUSE HAVING BEEN SHOWN, IT IS SO ORDERED.