Judge: Theresa M. Traber, Case: 19STCV12728, Date: 2023-07-11 Tentative Ruling


Case Number: 19STCV12728    Hearing Date: August 18, 2023    Dept: 47

 Tentative Ruling

 

Judge Theresa M. Traber, Department 47

 

 

HEARING DATE:     August 18, 2023                     JUDGMENT:  December 30, 2021

                                                          

CASE:                         Ron Hacker v. Henri Levy, et al.

 

CASE NO.:                 19STCV12728           

 

MOTION FOR ATTORNEY’S FEES

 

MOVING PARTY:               Defendant Henri Levy

 

RESPONDING PARTY(S): Plaintiff Ron Hacker

 

CASE HISTORY:

 

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

           

            Plaintiff alleges that he entered into a joint venture with Defendant Henri Levy, to purchase real property and resell it for a profit. Plaintiff alleges that Levy and others clouded title to the property after Levy and Plaintiff purchased it, undermining Plaintiff’s ability to sell it for a profit.

 

Defendant Henri Levy moves for attorney’s fees incurred in this action.

           

TENTATIVE RULING:

 

            Defendant Henri Levy’s Motion for Attorney’s Fees is GRANTED.  Plaintiff is ordered to pay attorney’s fees of $61,723 as costs in this matter.

 

            The Court sets a Hearing for August 25, 2023 at 9:00 AM., on an Order to Show Cause why Vincent J. Quigg, counsel for Plaintiff, should not be sanctioned and referred to the State Bar of California for disciplinary action for providing false citations to legal authority to this Court.

 

DISCUSSION:

 

Defendant Henri Levy moves for attorney’s fees incurred in this action.

 

Late Opposition

 

            Plaintiff’s opposition to this motion was filed and served on August 8, 2023. Pursuant to Code of Civil Procedure section 1005(b), any opposition to a noticed motion must be served a minimum of nine court days before the hearing. As this matter is scheduled to be heard on August 18, 2023, the last date to file an opposition was August 7, 2023. Plaintiff’s opposition is untimely. As Defendant has not objected to the late opposition, the Court will overlook the late filing and consider the merits of Plaintiff’s contentions.

 

Entitlement to Fees

 

            Civil Code section 1717 provides, in relevant part:

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.

(Civil Code § 1717(a), bold emphasis added.) “[I]t is established that fees, if recoverable at all – pursuant either to statute or parties’ agreement – are available for services at trial and on appeal.” (Morcos v. Board of Retirement (1990) 51 Cal.3d 924, 927 [emphasis in original].) Here, Paragraph Q of the contract that gives rise to this action, to which Defendant Levy is a party, states:

 

In the event either party commences litigation for the judicial interpretation, enforcement, breach, or recission hereof, the prevailing party will be entitled to recover reasonable attorneys’ fees and court and other costs incurred.

 

(TAC Exh. A. § Q.) Defendant contends that he is the prevailing party in this action since judgment was entered in his favor on December 30, 2021 (December 30, 2021 Judgment.)

 

            In opposition, Plaintiff argues that Defendant is not the prevailing party because the action is still pending against Defendant Gaelle II, LLC. The Court categorically rejected this argument in its July 11, 2023 ruling on Defendant’s previous motion for attorney’s fees when it was raised as to GNP Enterprises on the basis that Plaintiff offered no authority in support of his position. (July 11, 2023 Minute Order.) Here, Plaintiff now cites a case entitled Sullivan v. Delta Airlines Inc., which is purportedly a 1990 California Supreme Court case with pin cite 51 Cal.3d 614, 621, establishing “that prevailing party status must be considered in the context of the entire case and its underlying equitable principles.” (Opposition p.4:12-13.) The Court has searched for this case and has found no record of any opinion matching this citation. Although there are two cases bearing the title Sullivan v. Delta Airlines Inc., one from our Supreme Court and another from the Court of Appeals, both opinions were published in 1997, and neither have anything to do with the issue presented here. (Sullivan v. Delta Airlines, Inc. (1997) 14 Cal.4th 288; Sullivan v. Delta Airlines, Inc. (1997) 58 Cal.App.4th 938.) Plaintiff cites another case titled Ehrlich v. Conquest Holding Co., purportedly a 2011 appellate opinion with pin cite 202 Cal.App.4th 449, 456, which “reaffirms that unresolved aspects of the case, such as the role of a related entity, can impact prevailing party status.” (Opposition p. 4:15-16.) The Court can find no record of any opinion matching this citation either.

 

            The Court previously rejected Plaintiff’s argument on the basis that Plaintiff—or, more properly, Plaintiff’s counsel—offered no authority in support of Plaintiff’s position. Here, it appears that something much worse has transpired: Plaintiff’s counsel has provided false citations referencing nonexistent case law to support Plaintiff’s position. California Rule of Professional Conduct 3.3(a)(1) states that a lawyer shall not “knowingly make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer.” (Cal. Rule of Professional Conduct 3.3(a)(1).) It appears that counsel for Plaintiff may have done just that.

 

            In any event, for the purposes of this motion, the Court finds that Defendant Henri Levy is the prevailing party in this action and is therefore entitled to attorney’s fees.

 

Reasonableness of Fees

            Reasonable attorney’s fees are allowable costs when authorized by contract, statute, or law. (Code Civ. Proc § 1033.5(a)(10), (c)(5)(B).) In actions that are based 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… shall be entitled to reasonable attorney’s fees in addition to other costs.” (Civil Code § 1717(a) [emphasis added].) A recovery of attorney’s fees is authorized even in noncontractual or tort actions if the contractual provision for fee recovery is worded broadly enough. (See Code Civ. Proc § 10211; Maynard v. BTI Group, Inc. (2013) 216 Cal.App.4th 984, 993 [agreement to award fees based on outcome of “any dispute” encompasses all claims, “whether in contract, tort or otherwise]; Lockton v. O'Rourke (2010) 184 Cal.App.4th 1051, 1076; Lerner v. Ward (1993) 13 Cal.App.4th 155, 160.)

The prevailing party must file a noticed motion to claim contractual attorney fees as costs. (Civil Code § 1717(b)(1); see Russell v. Trans Pacific Group (1993) 19 Cal.App.4th 1717, 1728.) Reasonable attorney’s fees shall be fixed by the Court, and shall be an element of the costs of suit. (Civil Code § 1717(a); Code Civ. Proc. § 1033.5(c)(5)(B).) Reasonable attorney fees are ordinarily determined by the Court pursuant to the “lodestar” method, i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate. (See PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095-1096; Margolin v. Regional Planning Com. (1982) 134 Cal.App.3d 999, 1004 [“California courts have consistently held that a computation of time spent on a case and the reasonable value of that time is fundamental to a determination of an appropriate attorneys' fee award.”].) “[T]he lodestar is the basic fee for comparable legal services in the community; it may be adjusted by the court based on factors including, as relevant herein, (1) the novelty and difficulty of the questions involved, (2) the skill displayed in presenting them, (3) the extent to which the nature of the litigation precluded other employment by the attorneys, (4) the contingent nature of the fee award….”  (Ibid.) In setting the hourly rate for a fee award, courts are entitled to consider the “fees customarily charged by that attorney and others in the community for similar work.” (Bihun v. AT&T Info. Sys., Inc. (1993) 13 Cal.App.4th 976, 997 [affirming rate of $450 per hour], overruled on other grounds by Lakin v. Watkins Associated Indus. (1993) 6 Cal.4th 644, 664.)  The burden is on the party seeking attorney’s fees to prove the reasonableness of the fees. (Center for Biological Diversity v. County of San Bernardino (2010) 188 Cal.App.4th 603, 615.) 

The Court has broad discretion in determining the amount of a reasonable attorney’s fee award, which will not be overturned absent a “manifest abuse of discretion, a prejudicial error of law, or necessary findings not supported by substantial evidence.” (Bernardi v. County of Monterey (2008) 167 Cal.App.4th 1379, 1393-1394.)  The Court need not explain its calculation of the amount of attorney’s fees awarded in detail; identifying the factors considered in arriving at the amount will suffice. (Ventura v. ABM Indus. Inc. (2012) 212 Cal.App.4th 258, 274-275.)  

Here, Defendant requests attorney’s fees in the amount of $61,723, which, at an hourly rate of $300, would reflect some 205.7 hours of attorney time incurred in this action. Defendant’s counsel, Daniel Krishel, has provided redacted invoices which indicate the date of billing, the hours worked, a general description of the work performed, and the total amount billed, which account precisely for the hours and fees requested. (Declaration of Daniel Krishel ISO Mot. Exh. B.) Attorney Krishel states that the redactions contain internal accounting and billing information and do not have any effect on the time spent on the matters described in the invoices. (Id. ¶ 3.) Attorney Krishel also testifies that he has been practicing law since 1990, and that his hourly rate is $300. (Id. ¶ 1.)

In opposition, Plaintiff challenges this request as involving improper block billing on the basis that many of the time entries, particularly those pertaining to discovery, do not differentiate between the different Defendants represented by Defendant’s counsel, nor the aspects of discovery pertained to. The Court is not convinced, in an action as lengthy and thoroughly litigated as this and where groups of parties are subject to identical allegations, that Attorney Krishel’s time entries constitute improper block billing. Nor is the Court persuaded by Plaintiff’s argument that the fee request is unreasonable because Attorney Krishel, who charges a mere $300 per hour, performed work which Plaintiff asserts constitute “routine junior associate or paralegal tasks.” Finally, Plaintiff’s contention that the fee request is unreasonable because it seeks unapportioned fees for work done on behalf of multiple Defendants is unavailing. Defendant is seeking reimbursement for fees incurred on his behalf, and Defendant’s counsel is only seeking to be awarded those fees a single time. Had Attorney Krishel sought duplicate fee awards, Plaintiff’s argument might have merit, but that is not the case here.

CONCLUSION

 

            Accordingly, Defendant Henri Levy’s Motion for Attorney’s Fees is GRANTED.  Plaintiff is ordered to pay attorney’s fees of $61,723 as costs in this matter.

 

            The Court sets a Hearing for August 25, 2023 at 9:00 AM., on an Order to Show Cause why Vincent J. Quigg, counsel for Plaintiff, should not be sanctioned and referred to the State Bar of California for disciplinary action for providing false citations to legal authority to this Court.

 

            Moving party to give notice.

 

IT IS SO ORDERED.

 

Dated: August 18, 2023                                  ___________________________________

                                                                                    Theresa M. Traber

                                                                                    Judge of the Superior Court

 


            Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.