Judge Theresa M. Traber, Case Number: 21STCV45351, Date: 2025-01-28 Tentative Ruling

Judge: Theresa M. Traber, Case: 21STCV45351, Date: 2025-01-28 Tentative Ruling

Case Number: 21STCV45351 Hearing Date: January 28, 2025 Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE: January 28, 2025 JUDGMENT: November 14, 2024

CASE: Barry Ben-Ron et al. v. Maria De Lourdes Ruiz.

CASE NO.: 21STCV45351

MOTION FOR ATTORNEY’S FEES

MOVING PARTY: Plaintiffs/Cross-Defendants Barry Ben-Ron and Brian Sean Costello

RESPONDING PARTY(S): No response on eCourt as of 01/23/25

CASE HISTORY:

12/13/21: Complaint filed.
06/15/22: Cross-Complaint filed.
10/23/24: Dismissal entered as to Second Cause of Action on Plaintiffs’ request.
10/30/24: Dismissal entered as to Cross-Complaint on Cross-Complainant’s request.
11/14/24: Judgment entered.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

This is a breach of contract case. Plaintiffs purchased a property from Defendant which Plaintiffs allege was subject to a PACE loan. Plaintiffs allege that Defendant agreed to pay off the loan through escrow, such that the property would be transferred to Plaintiffs clear of any lien and failed to do so, despite receiving money in an amount equal to the balance on the loan, from escrow.

Plaintiffs move for attorney’s fees following judgment in their favor.

TENTATIVE RULING:

Plaintiffs’ Motion for Attorney’s Fees is GRANTED.

DISCUSSION:

Plaintiffs move for attorney’s fees following judgment in their favor.

Entitlement to Fees

Plaintiffs seek an award of attorney’s fees pursuant to the Residential Purchase Agreement that gave rise to this action. Plaintiffs filed a Complaint on December 13, 2021 alleging a cause of action for breach of written contract and a cause of action for breach of implied contract. (See generally Complaint.) Following the Court’s ruling on a Motion for Summary Adjudication which resolved the first cause of action in Plaintiffs’ favor (see October 14, 2024 Ruling on Matter Taken Under Submission), Plaintiffs dismissed the second cause of action for breach of implied contract. (October 23, 2024 Request for Dismissal.) Defendant also requested dismissal of her crossclaims on October 29, 2024. (October 29, 2024 Request for Dismissal.) Consequently, the Court entered judgment for Plaintiffs and against Defendant. (November 14, 2024 Judgment.)

Section 25 of the Residential Purchase Agreement states that, “[i]n any action, proceeding, or arbitration between Buyer and Seller arising out of this Agreement, the prevailing Buyer or Seller shall be entitled to reasonable attorney fees and costs from the nonprevailing Buyer or Seller, except as provided in paragraph 22A.” (Complaint Exh. 1 § 25.) Paragraph 22A requires the parties to mediate any dispute between them arising out of the Agreement before resorting to arbitration or court action, and expressly deprives a prevailing party of the right to obtain attorney’s fees in litigation if that party either “(i) commences an action without first attempting to resolve the matter through mediation, or (ii) before commencement of an action, refuses to mediate after a request has been made.” (Id. § 22A.)

Plaintiffs have produced correspondence from their counsel to Defendant dated November 29, 2021 (i.e., predating the Complaint) formally requesting that Defendant participate in mediation regarding payment of the PACE lien on the subject property. (Plaintiffs’ Exh. 2.) Plaintiffs have also provided excerpts from Defendant’s deposition where she admitted that she did not contact Plaintiffs’ counsel to mediate the case. (Id. Exh. 3. P.44:22-24.) Plaintiffs have thus demonstrated their right to attorney’s fees under the express provisions of the contract on which this action was premised.

Reasonableness of Fees

Plaintiffs request an award of attorney’s fees in the amount of $43,440.

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.)

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.)

Here, Plaintiffs request an award of $43,440, based on 108.6 hours of attorney time billed by Attorney Francis T. Donohue at $400 per hour. Plaintiffs have provided itemized billing records listing the tasks performed during the representation by date, with total hours billed and total fees incurred. (Plaintiffs’ Exh. 4.) Attorney Donohue also testifies to over 40 years of professional experience and to his hourly rate of $400. (Declaration of Francis T. Donohue ISO Mot. ¶ 8.) Upon review of the records, the Court finds that the hours billed by Plaintiffs’ counsel are reasonable in light of the length of this litigation and counsel’s low hourly rate. The Court therefore finds that Plaintiffs have demonstrated the reasonableness of the fees sought.

CONCLUSION:

Accordingly, Plaintiffs’ Motion for Attorney’s Fees is GRANTED.

Moving parties to give notice.

IT IS SO ORDERED.

Dated: January 28, 2025. ___________________________________

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.