Judge Teresa A. Beaudet, Case BC581072 2023-03-17 Tentative Ruling

On May 6, 2015, Plaintiff Andrew Milder (“Plaintiff”), in pro per, filed this action against Defendants Shawn Holley and Kinsella Weitzman Iser Kump & Aldisert, LLP (“Kinsella”) (jointly, “Defendants”). The Complaint alleges causes of action for (1) declaratory relief, (2) fraud, (3) breach of fiduciary duty, (4) breach of contract, (5) violation of Business & Professions Code § 17200 et seq., (6) unjust enrichment, and (7) intentional infliction of emotional distress.

In the Complaint, Plaintiff alleges that he paid Defendants a “substantial sum pursuant to a retainer agreement signed on October 3, 2011.” (Compl., ¶ 6.) Plaintiff alleges, inter alia, that the arbitration provisions in the agreement are void because Plaintiff was fraudulently induced into signing the agreement, and that Defendants breached the agreement. (Compl., ¶¶ 36, 56.)

On May 1, 2019, the Honorable Rupert A. Byrdsong of Department 28 issued a Judgment in this case in favor of Defendants and against Plaintiff. On December 6, 2019, Judge Byrdsong issued an Amended Judgment providing, inter alia, that “JUDGMENT in favor of Defendants Shawn Holley and Kinsella Weitzman Iser Kump & Aldisert, LLP and against Plaintiff Andrew Milder was entered on May 1, 2019…Defendants Shawn Holley and Kinsella Weitzman Iser Kump & Aldisert, LLP shall recover $241,048.50 in Attorneys’ Fees and Costs against Plaintiff Andrew Milder. Interest at the rate of 10% per annum shall accrue from the date Judgment was entered, May 1, 2019, on this monetary award until it is paid.”[1]

Plaintiff appealed the judgment and the order awarding attorney fees. (Cole Decl., ¶ 2, Ex. 1.) On December 16, 2021, the Court of Appeal issued an opinion that “[t]he judgment and the post-judgment order granting defendants’ motion for attorney fees are affirmed. Defendants are awarded costs on appeal.” (Cole Decl., ¶ 2, Ex. 1, p. 19.)

Defendants now move for appellate attorney fees in the amount of $175,631.80 against Plaintiff, pursuant to the parties’ contract and Civil Code section 1717. Plaintiff opposes.

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.[2]

Defendants assert that Plaintiff and Kinsella’s October 3, 2011 retainer agreement authorizes and mandates attorney fees to Defendants. (Cole Decl., ¶ 10, Ex. 7.) The retainer agreement provides, inter alia, that “[t]he prevailing party in any action, arbitration, or proceeding arising out of or to enforce any provision of this Agreement, with the exception of a fee arbitration or mediation under Business and Professions Code Sections 6200-6205, will be awarded reasonable attorneys’ fees and costs incurred in that action, arbitration or proceeding, or in the enforcement of any judgment or award rendered.” (Cole Decl., ¶ 10, Ex. 7, p. 14.) Defendants assert that Plaintiff’s Complaint and this lawsuit constitute an “action” or “proceeding.” They note that pursuant to Code of Civil Procedure section 22, “[a]n action is an ordinary proceeding in a court of justice by which one party prosecutes another for the declaration, enforcement, or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense.” Defendants also assert that Plaintiff’s Complaint in this action arose from and is based on the parties’ retainer agreement.

In the opposition, Plaintiff asserts that Defendants are not entitled to an award of attorney’s fees because “an award of any attorneys’ fees violates the letter and spirit of the California Arbitration Act, C.C.P. § 1284.3(a).” (Opp’n at p. 5:4-8.) Code of Civil Procedure section 1284.3, subdivision (a) provides that “[n]o neutral arbitrator or private arbitration company shall administer a consumer arbitration under any agreement or rule requiring that a consumer who is a party to the arbitration pay the fees and costs incurred by an opposing party if the consumer does not prevail in the arbitration, including, but not limited to, the fees and costs of the arbitrator, provider organization, attorney, or witnesses.” But here, Defendants seek appellate attorney fees incurred in litigation, not arbitration.

Based on the foregoing, the Court finds that Defendants have demonstrated their 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.)

Defendants’ counsel Nemecek & Cole indicate that they spent a total of 258.20 hours in connection with Plaintiff’s appeal in this matter for a total of $167,571.80; and 6 hours in connection with the instant fee motion, for a total of $3,000.00. (Cole Decl., ¶¶ 11-12, Ex. 3.) Defendants’ counsel anticipates spending an additional 10 hours in connection with reviewing Plaintiff’s opposition to the fee motion, preparing a reply, appearing at the hearing on the motion, advising Defendants about the Court’s ruling on the motion, and preparing a notice of entry of the Court’s order on the motion, for a total of $5,000.00. (Cole Decl., ¶ 12.) In addition, Defendants request a filing fee of $60.00 for the instant motion. (Cole Decl., ¶ 12.)

Thus, the total amount of attorney’s fees and costs that are requested by Defendants in connection with this motion are $175,631.80. (Cole Decl., ¶ 13.) Defendants’ counsel has attached an itemization of their billing in this case. (Cole Decl., ¶ 3, Ex. 3.)

Mr. Schaeffer’s requested hourly rate is $649 per hour, and Mr. Reback’s requested hourly rate is $500 per hour. (Cole Decl., ¶¶ 5, 12.) Mr. Schaeffer’s and Mr. Reback’s background and experience are set forth in Defendants’ counsel’s supporting declaration. (Cole Decl., ¶¶ 4, 12.) Plaintiff has not challenged Defendants’ counsel’s hourly rates. The Court finds that Defendants’ counsel’s hourly billing rates are reasonable and commensurate with rates charged by attorneys with comparable skill and experience.

Plaintiff asserts that the attorneys’ fees sought by Defendants are incorrectly calculated and excessive. In support of this assertion, Plaintiff cites to a case discussing lodestar multipliers. (See Opp’n at p. 6:7-20, citing to Chodos v. Borman (2014) 227 Cal.App.4th 76.) But Defendants do not seek a lodestar multiplier here. In addition, Plaintiff does not explain how he contends the requested fees were incorrectly calculated. As Defendants note, Plaintiff does not challenge any of Defendants’ specific billing entries.

Lastly, Plaintiff requests that that the Court “[s]tay all proceedings on both this Motion for Attorneys’ Fees, and also on the Amended Judgment entered in Dept 28 on December 6, 2019, for Defendants’ Recovery of $241,048.50 in trial court attorneys’ fees and costs, because a related appeal B320376, is currently pending in The Second District Court of Appeal.” (Opp’n at p. 10:1-4.) Plaintiff does not cite to any legal authority in support of such request. In addition, Defendants note that “[i]t is well settled that the filing of an appeal does not stay a motion for attorney fees.” (Domestic Linen Supply Co., Inc. v. L J T Flowers, Inc. (2020) 58 Cal.App.5th 180, 187.)

Based on the foregoing, Defendants’ motion for attorney’s fees is granted. Defendants are awarded attorney’s fees and costs in the amount of $175,631.80.

[1]The Court notes that on March 1, 2021, Department 28 issued a minute order indicating, inter alia, that “[t]he Court finds that the following cases, BC581072, 20STCV40133, BS164577, BS164577, and BS167341, are related within the meaning of California Rules of Court, rule 3.300(a). BC581072 is the lead case. For good cause shown, said cases are assigned to Judge Rupert A. Byrdsong in Department 28 at Stanley Mosk Courthouse for all purposes.” On March 12, 2021, Plaintiff filed a peremptory challenge to Judge Byrdsong in Case No. 20STCV40133. On April 30, 2021, Department 1 issued a minute order finding, inter alia, that “[t]his Court hereby determines these cases, BC581072, 20STCV40133, BS164577, BS165902, and BS167341, shall remain related and reassigned to Judge Teresa A. Beaudet in Department 50 at the Stanley Mosk Courthouse for all purposes.”

[2]Defendants note that “it is now beyond question that when attorney fees are available pursuant to statute or the parties’ agreement, they are available for services both at trial and on appeal.” (Harbour Landing-Dolfann v. Anderson (1996) 48 Cal.App.4th 260, 263.)

Superior Court of California

County of Los Angeles

Department 50