Judge Teresa A. Beaudet, Case Number: 20STCV28644, Date: 2023-08-14 Tentative Ruling

On July 29, 2020, Plaintiff Kleen Kraft Services, Inc. (“Plaintiff”) filed this action against Defendant Haralambos Beverage Co. (“Defendant”). The Complaint asserts causes of action for (1) breach of contract, (2) account stated, and (3) money owed.

In the Complaint, Plaintiff alleges that on or about October 23, 2017, Plaintiff and Defendant entered into a written agreement (the “Agreement”), by which Plaintiff agreed to rent to Defendant a quantity of clean uniforms at an agreed price per week. (Compl., ¶ 6.) Plaintiff alleges that in or about November, 2019, Defendant terminated the Agreement without cause. (Compl., ¶ 10.) Plaintiff alleges that Paragraph 6 of the Agreement provides that “in the event the customer terminated the Agreement without cause before the expiration of the initial or any subsequent term, the customer shall purchase from Plaintiff all merchandise covered by the Agreement at its replacement value, plus 20% of the remaining weekly rental charges.” (Compl., ¶ 11.) Plaintiff alleges that based on the Agreement, Defendant owes Plaintiff the sum of $130,043.82, but as of the filing of the instant lawsuit, Defendant has failed and/or refused to pay Plaintiff this amount. (Compl., ¶¶ 12-13.)

On September 6, 2022, the Court entered Judgment in this matter after a Court trial. The Court’s September 6, 2022 Judgment provides that Defendant shall pay Plaintiff a total of $15,493.00.

Plaintiff now moves for an award of attorney’s fees and costs in the amount of $62,521.70 pursuant to Civil Code section 1717. Defendant opposes. In addition, Defendant moves to strike, or in the alternative tax, costs requested by Plaintiff. Plaintiff opposes.

On July 6, 2023, the Court continued the hearings on the instant motions. (See July 6, 2023 Minute Order.) The Court’s July 6, 2023 Order noted, inter alia, that “[t]he Court will provide Plaintiff the opportunity to authenticate the invoice attached to the instant motion.” (July 6, 2023 Order at p. 11:1-2.) In addition, the Order provides that the Court will permit Defendant to respond to Plaintiff’s request in the reply for an additional $6,210.00 in attorney’s fees. (Id. at p. 11:7-8.) The Order also provides that “[b]ased on the discussion at the hearing, the Court will further consider Defendant’s motion to tax Plaintiff’s claimed $2,500.00 in court reporter fees in the amount of $1,600.00 at the continued hearing. (Id. at p. 15:4-5.)

The Court’s July 6, 2023 Order provides that “[a]ny supplemental declaration by Plaintiff which may address the court reporter fees is to be filed and served by 7/20/23…Defendant’s response thereto, if any, plus a response to the request for additional [attorney] fees, to be filed and served by 8/3/23…” (July 6, 2023 Order at p. 15:10-13.) On July 6, 2023, Plaintiff filed a “Supplemental Brief and Declaration of Jonathan Gabriel Filed in Support of Motion for Attorney’s Fees.” Defendant did not file any response thereto.

As discussed in the Court’s July 6, 2023 Order, the Court finds that Plaintiff has demonstrated its entitlement to attorney’s fees here.

“[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, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095 [internal citations omitted].)

“[T]he court’s discretion in awarding attorney fees is … to be exercised so as to fully compensate counsel for the prevailing party for services reasonably provided to his or her client.” (Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 395.) The trial court may reduce the award where the fee request appears unreasonably inflated, such as where the attorneys’ efforts are unorganized or duplicative. (Serrano v. Unruh (1982) 32 Cal.3d 621, 635, fn. 21.) “[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. Bd. of Trustees of California State Univ., supra, at p. 396.)

As noted in the Court’s July 6, 2023 Order, Plaintiff’s counsel Jonathan G. Gabriel’s requested hourly rate is $575/hour. (Gabriel Decl., ¶ 6.) In his supplemental declaration, Mr. Gabriel states that his associate David Mayes’s hourly rate is $475/hour. (Suppl. Gabriel Decl., ¶ 7.) Defendant did not file any response to Plaintiff’s counsel’s supplemental declaration, and thus does not dispute Plaintiff’s counsels’ requested hourly rates.

The Court finds that Plaintiff’s counsels’ hourly billing rates are reasonable and commensurate with rates charged by attorneys with comparable skill and experience.

The Court’s July 6, 2023 Order noted that “[a]s to the hours Plaintiff’s counsel purportedly spent on this case, Plaintiff attaches as Exhibit “B” to the motion a purported invoice that ‘reflects all of the work performed on behalf of Plaintiff by its attorney from February 6, 2020 to September 21, 2022.’…However, as noted by Defendant, Exhibit ‘B’ has not been authenticated and is not referenced in Mr. Gabriel’s declaration.” (July 6, 2023 Order at p. 10:15-19.) The Court found that “[i]n light of the foregoing, the Court will provide Plaintiff the opportunity to authenticate the invoice attached to the instant motion.” (Id. at p. 11:1-2.)

As discussed in the July 6, 2023 Order, Plaintiff seeks attorney’s fees in the sum of $57,717.50. (See Mot. at p. 6:1.) In his supplemental declaration, Mr. Gabriel states that the total number of hours that he worked on this matter, prior to the preparation and filing of the instant motion, was 90.3 hours, which multiplied by Mr. Gabriel’s hourly rate of $575/hour totals $51,922.50. (Suppl. Gabriel Decl., ¶ 7.) Mr. Gabriel also indicates that the total number of hours that David Mayes worked on this matter, prior to the preparation and filing of the instant motion, was 12.2 hours, which multiplied by his hourly rate of $475/hour totals $5,795.00. (Suppl. Gabriel Decl., ¶ 7.)

Plaintiff’s counsel thus states that “[m]y firm expended a total 102.5 hours of work from inception of this litigation up until the preparation and filing of the Motion for Attorney’s Fees. Based on my hourly rate of $575, and David Mayes’ hourly rate of $475, the total amount of attorney fees billed to Kleen Kraft in this matter (up until the preparation and filing of the Motion for Fees) was $57,717.50.” (Suppl. Gabriel Decl., ¶ 24.) Mr. Gabriel attaches billing records to his supplemental declaration. (Suppl. Gabriel Decl., ¶¶ 16-21, Ex. A-F.)

The Court notes that the July 6, 2023 Order also provides that “in the reply, Plaintiff seeks for the first time ‘$6,210 in additional fees incurred in its application for costs and fees.’…The Court will permit [Defendant] to respond to the request in the reply for an additional $6,210.00 in attorney’s fees.” (July 6, 2023 Order at p. 11:3-8.) In his supplemental declaration, Plaintiff’s counsel states that “[s]ince the beginning of the preparation and filing of this Motion, my client has incurred an additional $10,235.00 in legal fees. All of those additional fees were for work performed by me.” (Suppl. Gabriel Decl., ¶ 25; see also Suppl. Gabriel Decl., ¶ 26.)

Defendant did not file any response to Plaintiff’s counsel’s supplemental declaration, and thus does not dispute any of the billing entries or the above-referenced fees.

Based on the foregoing, the Court grants Plaintiff’s motion for attorney’s fees in the total amount of $67,952.50.

As discussed in the Court’s July 6, 2023 Order, Plaintiff seeks costs in the amount of $4,804.20. (Mot. at p. 5:13-14; Gabriel Decl., ¶ 7.) Plaintiff’s request for costs is discussed below in connection with Defendant’s motion to strike, or in the alternative, tax costs.

Pursuant to Code of Civil Procedure section 1032, subdivision (b), “[e]xcept as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.” Pursuant to Code of Civil Procedure section 1032, subdivision (a)(4), “‘[p]revailing 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.” (Emphasis added.) As set forth above, the Court’s September 6, 2022 Judgment provides that Defendant shall pay Plaintiff a total of $15,493.00.

“A ‘verified memorandum of costs is prima facie evidence of [the] propriety’ of the items listed on it, and the burden is on the party challenging these costs to demonstrate that they were not reasonable or necessary.” (Adams v. Ford Motor Co. (2011) 199 Cal.App.4th 1475, 1486-1487 [italics and brackets omitted].) “If the items appearing in a cost bill appear to be proper charges, the burden is on the party seeking to tax costs to show that 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.” (Ladas v. California State Auto. Assn., supra, 19 Cal.App.4th at p. 774.) Costs otherwise allowable as a matter of right may be disallowed if the court determines they were not reasonably necessary, and the court has power to reduce the amount of any cost item to an amount that is reasonable. (See Perko’s Enterprises, Inc. v. RRNS Enterprises (1992) 4 Cal.App.4th 238, 245 [finding that “the intent and effect of section 1033.5, subdivision (c)(2) is to authorize a trial court to disallow recovery of costs, including filing fees, when it determines the costs were incurred unnecessarily”].)

On September 21, 2022, Plaintiff filed a Memorandum of Costs seeking a total of $4,804.20 in costs.

As set forth in the Court’s July 6, 2023 Order, “the Court agrees that the circumstances do not warrant striking Plaintiff’s Memorandum of Costs under Code of Civil Procedure section 1033, subdivision (a).” (July 6, 2023 Order at p. 13:21-23.) The Court also declined to tax the $435.00 in filing and motion fees. (Id. at p. 14:4-5.)

As discussed in the July 6, 2023 Order, Defendant also moved to tax Plaintiff’s claimed $2,500.00 in court reporter fees. (See Plaintiff’s Memorandum of Costs, Item 11.) Defendant asserts that “[t]o the extent that the Memorandum includes costs for court reporter transcripts, these costs should be taxed because transcripts were not ordered by the Court and are therefore not allowed.” (Mot. at p. 8:20-23.)[1] However, Item 9 of the Memorandum of Costs concerns “Court-ordered transcripts,” and Plaintiff does not seek any costs for this Item.

Defendant also asserts that Plaintiff’s “[m]emorandum omits the necessary information for the Court to determine whether any of the costs are related to transcripts or are otherwise reasonable.” (Mot. at p. 8:15-17.) Defendant cites to Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1267, where the Court of Appeal noted that “[i]nitial verification will suffice to establish the reasonable necessity of the costs claimed. There is no requirement that copies of bills, invoices, statements, or any other such documents be attached to the memorandum. Only if the costs have been put in issue via a motion to tax costs must supporting documentation be submitted.” Defendant further states in the motion that “[t]he court reporter’s charge for a ½ day trial was $900. Since the parties agreed to split the costs of the court reporter and the trial should have lasted one day or less, [Plaintiff’s] Memorandum should be taxed at a minimum in the amount of $1,600, thereby only allowing $900 in costs for court reporter fees for a one day trial.” (Mot. at p. 9:1-4; Therrien Decl., ¶ 3.)

The Court’s July 6, 2023 Order noted that any supplemental declaration by Plaintiff may address the Court reporter fees. (July 6, 2023 Order at p. 15:10-11.) In his supplemental declaration, Plaintiff’s counsel states that “the parties have stipulated that they were each required to pay $450 for their one half of the Court Reporter fee for each of the 5 days of trial…” (Suppl. Gabriel Decl., ¶ 29.) Mr. Gabriel states that “[t]he $2,250 billed for Court Reporter fees was for the $450 paid by Kleen Kraft for their half of each of the five (5) separate days of trial, for which the reporter charged $900.” (Suppl. Gabriel Decl., ¶ 28.) As set forth above, Defendant did not file any response to Mr. Gabriel’s supplemental declaration, and thus does not dispute the foregoing.

Based on the foregoing, the Court declines to tax Plaintiff’s claimed $2,500.00 in court reporter fees.

Based on the foregoing, Plaintiff’s motion for attorney’s fees and costs is granted. Plaintiff is awarded attorney’s fees in the amount of $67,952.50. Plaintiff is awarded costs in the amount of $4,804.20.

[1]The Court notes that pursuant to Code of Civil Procedure section 1033.5, subdivision (a)(9), “[t]ranscripts of court proceedings ordered by the court” are “allowable as costs under Section 1032.”

Superior Court of California

County of Los Angeles

Department 50