Judge Theresa M. Traber, Case Number: 21STCV27365, Date: 2023-09-08 Tentative Ruling

Judge: Theresa M. Traber, Case: 21STCV27365, Date: 2023-09-08 Tentative Ruling

Case Number: 21STCV27365 Hearing Date: January 30, 2024 Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE: January 30, 2024 JUDGMENT: October 24, 2023

CASE: Rachel S. West v. Platinum Motorsports, Inc.

CASE NO.: 21STCV27365

MOTION FOR ATTORNEY’S FEES

MOVING PARTY: Plaintiff Rachel S. West

RESPONDING PARTY(S): Defendants Platinum Motorsports, Inc., Hakop Keshishyan, Top Speed, Inc, and Gevork Keshishyan

CASE HISTORY:

· 07/26/21: Complaint filed.

· 03/15/22: Default entered as to Platinum Motorsports, Inc.

· 03/18/22: Default entered as to Top Speed, Inc.

· 04/04/22: Default entered as to Hakop and Gevork Keshishyan

· 03/30/23: Default Judgment entered.

· 10/24/23: Amended Judgment entered.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

This is an action for forgery, conversion, and theft. Plaintiff alleges that Defendants forged her signature on a check from Plaintiff’s vehicle insurance for repairs to her vehicle, so that they could deposit the check without performing repairs.

Plaintiff moves for an award of attorney’s fees.

TENTATIVE RULING:

Plaintiff’s Motion for Attorney’s Fees is GRANTED in the amount of $47,840.

DISCUSSION:

Plaintiff moves for an award of attorney’s fees.

Entitlement to Fees

Plaintiff pled causes of action for forgery, conversion and theft in violation of Penal Code section 496, and unfair competition in violation of Business & Professions Code section 17200 et seq. (See generally FAC.) Penal Code section 496 authorizes an award of reasonable attorney’s fees to any person who has been injured by, inter alia, the knowing purchase or receipt of stolen property. (Penal Code § 496 (a), (c).) Defendants contend that Plaintiff is not the prevailing party because the Court set aside the original judgment entered March 30, 2023, with respect to punitive damages and reduced the punitive damage award. (See September 27, 2023 Minute Order.) According to Defendants, Plaintiff did not obtain a net recovery because most of the punitive damages were eliminated. This claim is specious. First, a reduction in the punitive damages award does not constitute a recovery for Defendants that may be counted against Plaintiff’s recovery. Second, the default judgment stands with respect to Defendants’ liability—it was merely the amount of damages that was modified. Plaintiff is the prevailing party and is entitled to reasonable attorney’s fees under Penal Code section 496(c). Further, Defendants’ reliance on a case construing the Court’s authority to deny prevailing party status under Civil Code § 1717 is misplaced. (See Opposition, pp. 4-5.) The basis here for Plaintiff’s fee award is a Penal Code statute designed to encourage private enforcement of a statute barring illegal conduct. Even so, it cannot be said that Plaintiff failed to achieve her litigation objective since she obtained full relieve on all claims asserted.

Reasonableness of Fees

Plaintiff requests a fee award of $73,600, based on a combined total of 177 hours incurred since entry of the default judgment at an hourly rate of $400.

Reasonable attorney’s fees shall be fixed by the Court and shall be an element of the costs of suit. (Code Civ. Proc. § 1033.5(c)(5)(B).) Reasonable attorney’s 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.)

Plaintiff requests a fee award of $73,600, based on a combined total of 177 hours incurred since entry of the default judgment at an hourly rate of $400, plus an additional 7-hour estimate for preparing a reply brief and attending oral argument.

Plaintiff’s counsel, Attorney Timothy Otte, has provided a declaration attesting to his skills, experience, and hourly rate. (Declaration of Timothy Otte ISO Mot. ¶ 4.) Attorney Otte does not provide billing records demonstrating the amount of time actually incurred. Instead, Attorney Otte estimates that he has spent 177 hours across three categories of activity. (Otte Decl. ¶¶ 4-7.) Attorney Otte bases his estimate on research times provided by Lexis/Nexis, date stamps recorded in computer files, and “some contemporaneous time notes.” (Id. ¶ 5.) Attorney Otte also seeks 7 hours of anticipated time to review the opposition, prepare the reply, and attend the hearing on this motion.

Defendants argue in opposition that Plaintiff has not adequately justified the fee request because it is unsupported by any billing records and the hours claimed are not broken down into the tasks performed. Defendants also complain about ministerial tasks undertaken by Plaintiff’s attorney and billed at the same $400 per hour rate. While it is true that “trial courts have discretion to award fees based on declarations of counsel describing the work they have done and the court’s own view of the number of hours reasonably spent” (Syers Properties III, Inc. v. Rankin (2014) 226 Cal.App.4th 691, 698-699), the Court is skeptical of the hours claimed by Plaintiff’s counsel. Attorney Otte’s estimate for the hours required to review the opposition, prepare a reply, and attend the hearing on this matter is most telling: 7 hours on a routine response and reply to a fee motion is excessive for an attorney of Mr. Otte’s experience. Attorney Otte’s claims to such inflated hours broadly suggest that the balance of the claimed hours is similarly inflated. Moreover, the Court agrees with Defendants that certain activities described such as preparing proposed judgments or preparing sheriff’s instructions are largely ministerial and, thus, should be performed by legal assistants or, in the alternative, should be billed at lower rates.

Based on this assessment, the Court will impose a 35% reduction in fees, equivalent to a 0.65x multiplier, resulting in a fee award of $47,840.

CONCLUSION

Accordingly, Plaintiff’s Motion for Attorney’s Fees is GRANTED in the amount of $47,840.

Moving Party to give notice.

IT IS SO ORDERED.

Dated: January 30, 2024 ___________________________________

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.