Judge: Teresa A. Beaudet, Case: BC688063, Date: 2023-02-23 Tentative Ruling

Case Number: BC688063    Hearing Date: February 23, 2023    Dept: 50

Superior Court of California

County of Los Angeles

Department 50

Background

Plaintiffs MDR Boat Central, L.P. (“MDR”) and MDR Boat Central, LLC (jointly, “Plaintiffs”) initiated the instant action on December 22, 2017 against Defendants County of Los Angeles (the “County”) and Board of Supervisors for the County of Los Angeles (jointly, “Defendants”). The Complaint asserts causes of action for (1) promissory estoppel, (2) promissory fraud, (3) negligent misrepresentation, (4) breach of contract, (5) breach of implied-in-fact contract, (6) breach of covenant of good faith and fair dealing, (7) services rendered/quantum meruit, and (8) declaratory relief.

The gravamen of the Complaint concerns certain agreements entered into between MDR and the County regarding the lease, development, and operation of a boat storage facility on County land in Marina Del Rey. 

On June 5, 2018, the Court issued an order sustaining in part and overruling in part Defendants’ demurrer to the Complaint. On November 2, 2020, the Court issued an order granting Defendants’ motion for summary judgment on the remaining causes of action. On November 30, 2020, the Court entered judgment for Defendants and against Plaintiffs on all causes of action. On December 16, 2020, Plaintiffs filed a notice of appeal of the November 30, 2020 judgment.

On August 17, 2022, the Court of Appeal, Second Appellate District issued an opinion providing, inter alia, “Plaintiffs and appellants MDR Boat Central, L.P., and MDR Boat Central, LLC (collectively MDR), appeal from the summary judgment entered in favor of defendants and respondents County of Los Angeles and Board of Supervisors for the County of Los Angeles (Board)…in this breach of contract action concerning the development, lease, and operation of a boat storage facility on County land in Marina del Rey. We affirm the judgment.” A Remittitur was filed on October 20, 2022 indicating, inter alia, that the August 17, 2022 opinion “has now become final,” and that “[t]he County shall recover its costs on appeal.”

In addition, on May 28, 2021, the Court issued an Order granting Defendants’ motion for attorney fees and costs in a reduced amount as to costs in the amount of $28,457, and in a reduced amount of fees in the amount of $1,196,330.50. On July 26, 2021, Plaintiffs filed a notice of appeal of the May 28, 2021 Order. On May 13, 2022, the California Court of Appeal, Second Appellate District issued an Order providing, “[p]ursuant to request, the appeal filed July 26, 2021 is dismissed. The clerk shall issue the remittitur forthwith. Respondent(s) shall recover costs on appeal.”

Defendants now move for an order granting reasonable attorneys’ fees incurred in connection with the appeal in this matter, in the total amount of $115,269.00. The motion is unopposed.

Discussion

Availability of 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 California Rules of Court, Rule 3.1702, subdivision (c)(1), “[a] notice of motion to claim attorney’s fees on appeal—other than the attorney’s fees on appeal claimed under (b)—under a statute or contract requiring the court to determine entitlement to the fees, the amount of the fees, or both, must be served and filed within the time for serving and filing the memorandum of costs under rule 8.278(c)(1) in an unlimited civil case…”

In the motion, Defendants assert that “Plaintiffs’ entire lawsuit was based on five agreements between the County and Plaintiffs in the lead-up to this lawsuit. Despite a number of key differences among the agreements…they all contained a substantially identical attorneys’ fee provision: the prevailing party in any dispute arising out of the agreements shall be awarded its reasonable fees and costs.” (Mot. at p. 7:7-11, citing Complaint, Ex. 3, § 8.5; Ex. 4, § 12; Ex. 5,  § 7; Ex. 6, § 6; and Ex. 7, § 6, emphasis omitted.)[1] Plaintiffs do not oppose the instant motion, and thus do not dispute that the contractual attorney’s fees provisions in the subject agreements apply and authorize Defendants’ attorney’s fees here. Plaintiffs also do not dispute that Defendants timely made this motion for attorney’s fees.

Reasonableness of 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.)

Defendants submit declarations from their attorneys purporting to establish the reasonableness of the fees incurred.

Defendants seek recovery of attorney’s fees for time billed by partners at $495 per hour, an associate at $325 per hour, and of counsel at $325 per hour. (Lee Decl., ¶ 23.) The rates are discounted by over 40% and up to 60% from counsel’s ordinary rates. (Ibid.) More specifically, the following table itemizes the requested hourly rates:

The Lee Declaration provides a description of the attorneys’ qualifications and experience. (Lee Decl., ¶¶ 14-18.)

Plaintiffs do not oppose the motion and thus do not argue that the requested hourly rates are unreasonable. The Court also independently finds that the rates are reasonable given the individual attorneys’ experience and the discounted nature of the rates.

Defendants seek $115,269 in attorney’s fees incurred in defeating Plaintiffs’ appeal. (Lee Decl., ¶ 24.) A total of 258.5 hours were billed by Defendants’ counsel in connection with the appeal. (Lee Decl., ¶¶ 24-25.) Specifically, Mr. Marcus billed 199.8 hours, Mr. Baum billed 31.7

hours, Mr. Levin billed 11.9 hours, Mr. Lee billed 11.7 hours, and Ms. Chilton billed 3.4 hours. (Lee Decl., ¶ 24; Marcus Decl., ¶ 3; Baum Decl., ¶ 9.) 

            As set forth above, Plaintiffs do not oppose the instant motion, and thus do not assert that the number of hours spent by Defendants’ counsel is unreasonable. The Court finds that the fees requested are reasonable.

Conclusion

Based on the foregoing, Defendants’ motion for attorney’s fees is granted. Defendants are awarded attorney’s fees in the amount of $115,269.00.

Defendants are ordered to provide notice of this ruling.

DATED:  February 23, 2023                          ________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court