Judge: Teresa A. Beaudet, Case: 22STCV28292, Date: 2023-10-06 Tentative Ruling

Case Number: 22STCV28292    Hearing Date: October 6, 2023    Dept: 50

Superior Court of California

County of Los Angeles

Department 50

Background

Plaintiffs Appa Development and Appa Real Estate (jointly, “Plaintiffs”) filed this action on August 30, 2022 against Defendant Oscar Alarcon (“Defendant”). The Complaint asserts causes of action for (1) breach of written contract and (2) fraud and deceit.

On May 1, 2023, the Court issued an Order sustaining Defendant’s demurrer to each of the causes of action of the Complaint, with leave to amend.

            On July 13, 2023, the Court entered a “Judgment of Dismissal for Failure to File Amended Complaint Within Time Allowed By Court CCP § 581(f)(2)” (herein, the “Judgment”). The Judgment provides, inter alia, that “[p]ursuant to the Court’s prior order on May 1, 2023 and following Plaintiff’s failure to file an amended complaint within the time set forth in the Court’s May 1, 2023 order, IT IS ORDERED, ADJUDGED, AND DECREED that Plaintiffs’ Complaint is dismissed with prejudice as to Defendant and that judgment be entered in favor of Defendant; IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that Defendant shall recover from Plaintiffs Defendant’s costs of suit in accordance with a memorandum of costs to be filed within 15 days after the entry of this judgment.”

Defendant now moves for “an order awarding Defendant’s attorneys’ fees and costs in the amount of $37,136.90 as the prevailing party in this action against Appa Development and Appa Real Estate…jointly and severally.” Plaintiffs oppose.[1]

Discussion

A.    Entitlement to Attorney’s Fees

Civil Code section 1717, subdivision (a) provides: “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.” In addition, Code of Civil Procedure section 1033.5, subdivision (a)(10)(A) provides that attorney’s fees, when authorized by contract, are allowable as costs.

Pursuant to Civil Code section 1717, subdivision (b)(1), “[t]he court, upon notice and motion by a party, shall determine who is the party prevailing on the contract for purposes of this section, whether or not the suit proceeds to final judgment. Except as provided in paragraph (2), the party prevailing on the contract shall be the party who recovered a greater relief in the action on the contract. The court may also determine that there is no party prevailing on the contract for purposes of this section.” As set forth above, the July 13, 2023 Judgment in this case provides, inter alia, that “IT IS ORDERED, ADJUDGED, AND DECREED that Plaintiffs’ Complaint is dismissed with prejudice as to Defendant and that judgment be entered in favor of Defendant.”

Defendant asserts that “[t]he contract sued upon, the Settlement Agreement, provides for recovery of attorneys’ fees and costs.” (Mot. at p. 2:1-2.) Defendant’s counsel’s supporting declaration attaches copy of the “Negotiated Settlement Agreement and Release” between Defendant and Plaintiffs (herein, the “Settlement Agreement”). (Wagner Decl., ¶ 7, Ex. C.) Defendant notes that Section 14 of the Settlement Agreement provides as follows:

“14.     In any legal action or other proceeding brought to enforce or interpret any of the terms of this Agreement, the prevailing party shall be entitled to recover reasonable attorneys’ fees and legal costs incurred. The parties expressly agree to waive the provisions of California Evidence Code § 1152 solely to the extent necessary to render this Agreement admissible in a proceeding to enforce the provisions hereof. Moreover, this Agreement constitutes a signed writing enforceable pursuant to CCP Section 664.6 and admissible under Evidence Code Section 1123. If any party brings any motion, application, pleading or claim to enforce this agreement pursuant to CCP Section 664.6, the prevailing party will be entitled to reasonable attorney fees and costs for such enforcement.” (Wagner Decl., ¶ 7, Ex. C, § 14.)

Defendant asserts that Plaintiffs brought an action against Defendant for breach of contract and fraud resulting from the Settlement Agreement. Indeed, in the Complaint, Plaintiffs allege that on February 7, 2018, Defendant filed a wrongful termination and discrimination action against Plaintiffs, “bearing Los Angeles Superior Case no. BC693219” (referred to herein as the “Underlying Action”). (Compl., ¶ 7.) The Underlying Action was resolved and settled pursuant to a September 21, 2020 “Negotiated Settlement Agreement and Release” (herein, the “Settlement Agreement”) (Compl., ¶ 7.)  

Plaintiffs further allege in the Complaint that Paragraph 4(b) of the Settlement Agreement provides, inter alia, that “ALARCON hereby represents and agrees that there are no known other complaints, lawsuits, actions, causes of action, administrative charges, claims, controversies, demands, grievances or proceedings against any RELEASEE exist [sic], ALARCON agrees to immediately seek and obtain dismissal with prejudice if any such action, charges or claims exists.” (Compl., ¶ 7, Ex. A, ¶ 4(b).) Plaintiffs allege that “[a]pparently, with Defendant enter [sic] into this agreement and signed and notarized the settlement, there was and still is a pending workers compensation action against Plaintiff.” (Compl., ¶ 7.) Plaintiffs allege that “[d]espite Plaintiff’s numerous requests Defendant has failed to dismiss the pending workers compensation action, Case Number ADJ10806054 pending in the Marina Del Rey Division of the State of California Workers’ Compensation Appeals Board.” (Compl., ¶ 8.)  

As set forth above, Defendant’s demurrer to the Complaint was sustained in its entirety, and the Court’s July 13, 2023 Judgment provides, inter alia, that “[p]ursuant to the Court’s prior order on May 1, 2023 and following Plaintiff’s failure to file an amended complaint within the time set forth in the Court’s May 1, 2023 order, IT IS ORDERED, ADJUDGED, AND DECREED that Plaintiffs’ Complaint is dismissed with prejudice as to Defendant and that judgment be entered in favor of Defendant.”

In the opposition, Plaintiffs assert that Defendant is not entitled to attorney’s fees. More specifically, Plaintiffs contend that “[o]n May 1, 2023 this court sustained Defendant’s Demurrer and basically ruled the contract in this case ‘the settlement agreement’ in a wrongful termination case Defendant filed was enforceable as it called for dismissal of a pending worker compensation action and this Court ruled that only the Worker Compensation Board can dismiss a pending worker compensation. As such, the Court ruled the contract unenforceable and the[sic] would hold true for all terms of the settlement agreement, including the provision for attorney fees for the prevailing party.” (Opp’n at p. 2:4-10.) But as noted by Defendant, the Court made no such ruling that the Settlement Agreement is unenforceable. (See May 1, 2023 Order.)

Plaintiffs also assert that Defendant’s motion is procedurally defective. Plaintiffs note that the caption page of the motion references “PLAINTIFF’S NOTICE OF MOTION…” However, this appears to be a typo, as the notice of motion indicates that the motion is brought by Defendant, not Plaintiffs. Plaintiffs do not cite any legal authority demonstrating that this is grounds to deny the instant motion.

Plaintiffs also assert that “there is no ‘meet and confer’ before filing this motion on the part of Defendant,” but do not cite to any legal authority demonstrating that Defendant must meet and confer with Plaintiffs in advance of filing the instant motion. In addition, Plaintiffs argue that there is “no reservation number included,” but Defendant’s reservation number is listed on the caption page of the motion.

            Based on the foregoing, the Court finds that Defendant has demonstrated his entitlement to attorney’s fees and costs here.

B.     The Hourly Rate of Counsel and the Reasonableness of the Requested Fees

“[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.)

Defendant’s counsel indicates that the following attorneys at Reisner & King LLP performed work on this case, followed by their requested hourly rates: Zachary Wagner ($375/hour), Adam Reisner ($950/hour), and Tessa King ($850/hour). (Wagner Decl., ¶ 8; Reisner Decl., ¶ 2; King Decl., ¶ 2.) Defendant’s counsel also indicates that the following paralegals performed work on this case, followed by their requested hourly rates: Lorina Jasso ($250/hour), Nidia Guardado ($150/hour), Abraham Ramirez ($150/hour), and John Ramone ($150/hour). (Wagner Decl., ¶ 9; King Decl., ¶ 7; Jasso Decl., ¶ 3; Guardado Decl., ¶ 3.) In addition, the background and experience of Defendant’s attorneys and paralegals is discussed in the supporting declarations. (Wagner Decl., ¶ 8; Reisner Decl., ¶¶ 3-6, 9; King Decl., ¶¶ 3, 5-9; Jasso Decl., ¶ 3; Guardado Decl., ¶ 3.)

Plaintiffs argue in the opposition that Defendant “seeks $950 an hour for attorney Adam Reisner, and $850 an hour of for attorney Tessa King, both this [sic] attorneys have far less experience as Plaintiffs’ counsel has as their California Bar Number are in the 200,000, Plaintiffs’ counsel bill the reasonable rate of $250 an hour on this matter and billed less than 4 hours on the entire demurrer proceeding…” (Opp’n at p. 2:24-28.) But as noted by Defendant, Plaintiffs do not offer any evidence to support their purported assertion that Defendant’s counsel’s hourly rates are unreasonable.

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

Defendant states that his counsel, Reisner & King LLP, expended 72 hours on this matter. Defendant’s counsel attaches as Exhibit H to his declaration a “copy of an excel sheet that [he] created by using [his] firm-wide software for keeping track of work performed on this matter.” (Wagner Decl., ¶ 14, Ex. H.) The excel sheet shows that from October 31, 2022 to the present, Defendant’s counsel billed 72 hours on this matter. (Ibid.) This amount also includes future expected attorneys’ fees for Defendant’s counsel to review the opposition to the instant motion, draft a reply in support of the motion, and prepare for and attend the hearing on the motion. (Ibid.)

In the opposition, Plaintiffs assert that “Defendant seeks over $36,000 in attorney fees for filing one simple demurrer.” (Opp’n at p. 2:21.) But this is not accurate, as the requested fees are for all of the time expended by Defendant’s counsel on this matter. (See Wagner Decl., ¶ 14, Ex. H.)  

Plaintiffs also assert that “Defendant seeks attorney fees for ‘paralegal’ time which the contract does not call for.” (Opp’n at p. 2:23-24.) Defendant does not dispute this point in the reply. Defendant’s motion indicates that the total amount billed for work performed by Defendant’s paralegals totals $1,555.00. (See Mot. at pp. 4:26-5:8; Wagner Decl., ¶ 14, Ex. H.) Thus, the Court deducts $1,555.00 from the total amount requested.

Lastly, Defendant seeks costs in the amount of $1,221.90. (Wagner Decl., ¶ 15, Ex. I (Memorandum of Costs).) Plaintiffs do not dispute Defendant’s requested costs.  

Conclusion

Based on the foregoing, Defendant’s motion for attorneys’ fees and costs is granted in the amount of $35,581.90.  

Defendant is ordered to give notice of this ruling.  

DATED:  October 6, 2023                              ________________________________

Hon. Rolf M. Treu

Judge, Los Angeles Superior Court