Judge Theresa M. Traber, Case Number: 22STCV29679, Date: 2024-04-22 Tentative Ruling

Judge: Theresa M. Traber, Case: 22STCV29679, Date: 2024-04-22 Tentative Ruling

Case Number: 22STCV29679 Hearing Date: April 22, 2024 Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE: April 22, 2024 TRIAL DATE: NOT SET

CASE: Hollywood Lanai Apartments, LLC v. Paul Krzemuski as successor trustee of the Violette Krzemuski a/k/a Violette Adamian 2013 Family Trust

CASE NO.: 22STCV29679

(1) MOTION FOR ATTORNEY’S FEES

(2) MOTION TO TAX COSTS

MOVING PARTY: (1) Defendant Paul Krzemuski as successor trustee of the Violette Krzemuski a/k/a Violette Adamian 2013 Family Trust; (2) Plaintiff Hollywood Lanai Apartments, LLC

RESPONDING PARTY(S): (1) Plaintiff Hollywood Lanai Apartments, LLC; (2) Defendant Paul Krzemuski as successor trustee of the Violette Krzemuski a/k/a Violette Adamian 2013 Family Trust;

CASE HISTORY:

· 09/13/22: Complaint filed.

· 10/03/22: Case deemed related to 22STCV30055 Kabala v. Krzemuski, et al. and 22STCV29709 Adamian v. Krzemuski, et al. (lead case).

· 01/12/24: Request for dismissal entered.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

This is a quiet title action, in which Plaintiff seeks to cancel a deed of trust recorded by the previous owner of a parcel of real property.

Defendant moves for attorney’s fees. Plaintiff moves to tax Defendant’s memorandum of costs.

TENTATIVE RULING:

Defendant’s Motion for Attorney’s Fees is GRANTED in the amount of $6,787.50, reflecting 9.05 hours of attorney time at $750 per hour.

Plaintiff’s Motion to Tax Costs is GRANTED IN PART. The Amended Memorandum of Costs is taxed as follows: (1) Item 10 in the amount of $712.50; (2) Item 11 in the amount of $500.00; and (3) Item 16 in the amount of $150.00. Defendant is, thus, entitled to recover a total of $7,105.13 in fees and costs.

DISCUSSION:

Motion for Attorney’s Fees

Defendant moves for attorney’s fees following Plaintiff’s voluntary dismissal of the Complaint.

Entitlement to Fees

Defendant contends that he is entitled to reasonable attorney’s fees pursuant to an attorney’s fee provision in the Deed of Trust.

Under Code of Civil Procedure section 1021, the apportionment of attorney’s fees is left to the agreement of the parties. (Code Civ. Proc. § 1021.) However, a party who prevails in an action is expressly entitled to recover costs, except where otherwise provided by statute. (Code Civ. Proc. § 1032(b).) Attorney’s fees, as authorized by contract, statute, or other law, are among these recoverable costs. (Code Civ. Proc. § 1033.5(a)(10).) For the purposes of these statutes:

“Prevailing party” includes the party with a net monetary recovery, a defendant in whose favor a dismissal is entered, a defendant where neither plaintiff nor defendant obtains any relief, and a defendant as against those plaintiffs who do not recover any relief against that defendant. If any party recovers other than monetary relief and in situations other than as specified, the “prevailing party” shall be as determined by the court, and under those circumstances, the court, in its discretion, may allow costs or not and, if allowed, may apportion costs between the parties on the same or adverse sides pursuant to rules adopted under Section 1034.

(Code Civ. Proc. § 1032(a)(4).)

Defendant seeks to enforce the attorney’s fee provision in the Deed of Trust that was at the heart of this dispute. This Deed of Trust provides:

TO PROTECT THE SECURITY OF THIS DEED OF TRUST, TRUSTOR AGREES:

. . .

(3) To appear in and defend any action or proceeding purporting to affect the security hereof or affect the security hereof or the rights or powers of Beneficiary or Trustee; and to pay all costs and expenses, including costs of evidence of title and attorney's fees in a reasonable sum, in any such action or proceeding in which Beneficiary or Trustee may appear, and in any suit brought by Beneficiary to foreclose this Deed.

. . .

(13) That this Deed applies to, insures to the benefit of, and binds all parties hereto, their heirs, legatees, devisees, administrators, executors, successors and assigns. The term Beneficiary shall mean the owner and holder, including pledges, of the note secured hereby, whether or not named as Beneficiary herein. In this Deed, whenever the context so required, the masculine gender includes the feminine and/or neuter, and the singular includes the plural.

(Defendant’s Exh. 1.) The Deed of Trust defines the Trustor as George Adam Adamian, the trustee as Escrow Professionals, Inc., and the beneficiary as Violette Adamian. (Id.)

Defendant contends that he is entitled to enforce the attorney’s fee provision against Plaintiff because Plaintiff, as the subsequent purchaser of the property that is the subject of the Deed of Trust, is the successor in interest to the Trustor, and therefore subject to the deed. (See Complaint ¶ 19.) Defendant argues that since Plaintiff voluntarily dismissed this action on January 12, 2024, Defendant is the prevailing party under section 1032(a)(4) as a matter of law.

Plaintiff first argues in opposition that Defendant is not entitled to recover attorney’s fees because Plaintiff is not a party to the deed of trust. This contention is not well taken. Plaintiff admits in the Complaint that it is a successor to George Adamian’s interest in the subject property because it purchased the property from him on November 13, 2014. (Complaint ¶ 19.) Second, Plaintiff argues that the fee provision in the Deed of Trust merely adds those fees to the secured debt, citing Hart v. Clear Recon Corp. (2018) 27 Cal.App.5th 322, and Chacker v. JPMorgan Chase Bank (2018) 27 Cal.App.5th 351. However, both cases cited by Defendant concerned fee motions where the fees at issue were sought under terms that expressly stated that fees and costs incurred to protect the security would be added to the secured debt. (Hart, supra, 27 Cal.App.5th at 325; Chacker, supra, 27 Cal.App.5th at 354.) There is no such provision here. These arguments concerning the parties and language of the Deed of Trust are unpersuasive.

Finally, Plaintiff contends that Defendant cannot recover fees on the Deed of Trust because Civil Code section 1717(b)(2) bars recovery in an action on a contract where the Plaintiff voluntarily dismisses its claims. (Civ. Code § 1717(b)(2).) Plaintiff is correct that Defendant cannot recover against Plaintiff’s contract claims, such as quiet title, declaratory, and injunctive relief because they sound in contract insofar as they concern the deed of trust. (Kachlon v. Markowitz (2008) 168 Cal.App.4th 316, 348.) However, Plaintiff also alleged slander of title against Defendant, which is a tort. (See, e.g., Finch Aerospace Corp. v. City of San Diego (2017) 8 Cal.App.5th 1248, 1253.) Tort claims are not subject to section 1717. (Santisas v. Goodin (1998) 17 Cal.4th 599, 619.)

Plaintiff also argues that Defendant seeks to recover fees incurred following execution of a full reconveyance by the trustee on January 3, 2024. (Declaration of Elmira R. Howard ISO Opp. Exh. 3.) However, close reading of Defendant’s papers shows that Defendant seeks fees incurred before that date. (See Declaration of Robert Shtofman ISO Mot. ¶ 1.) This argument therefore goes to the reasonableness of the fee request, not Defendant’s entitlement to fees.

In sum, the Court finds that Defendant has demonstrated that he is entitled to recover attorney’s fees incurred in defense of Plaintiff’s tort claims pursuant to the language of the Deed of Trust, but not those expended to defend against Plaintiff’s contract claims.

Reasonableness of Fees

Defendant seeks attorney’s fees in the amount of $13,500.

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 seeks fees in the amount of $13,500, based on 4.8 hours of attorney time incurred by Daniel J. Enowitz at $750 per hour, 9.9 hours of attorney time incurred by Robert Scott Shtofman at $750 per hour, and a further 3.3 hours anticipated by Attorney Shtofman at the same rate. (Shtofman Decl. ¶ 1, Exhs. 2-3.) Defendant has submitted invoices for the fees actually incurred to date. (Id.) Attorney Shtofman testifies to his own skills, experience, and hourly rate. (Shtofman Decl ¶¶ 2-3.) However, there is nothing in the record filling the same role for Attorney Enowitz. Defendant has therefore failed to justify the request for fees incurred by Attorney Enowitz. The Court also declines to award anticipated hours not accounted for in Defendant’s billing invoices.

As to the remaining fees, Plaintiff argues that the fee request is not reasonable because the bulk of the fees were incurred after the January 3, 2024 reconveyance and therefore were not fees incurred “to defend an action or proceeding purporting to affect the security.” This argument is specious. Fees incurred in litigating an action to completion, including shepherding its dismissal and pursuing attorney’s fees, are fees incurred in defending the action on their face. Plaintiff’s blunderbuss attack on the fee request is, thus, unavailing.

That said, Plaintiff offers a more particularized challenge to the fee request, arguing that the invoices show double billing with work done in the related cases. Attorney Shtofman’s invoices for January 2, 2024, as well as January 4 at 3:49 PM, January 5 at 2:37 PM, and January 11 at 1:56 PM, all reference Mary Lazarian, counsel for Plaintiff Kabala in the related action Kabala v. Krzemuski, LASC Case No. 22STCV30044, or refer to the related action itself. (Shtofman Decl. Exh. 3.) The Court agrees that these billing entries, totaling 1.7 hours of attorney time, should be reduced by half to account for double-billing between cases, equivalent to 0.85 hours of attorney time at the same rate.

Plaintiff also asserts that the remaining fee requests are unreasonable because it was unnecessary to incur fees on anything further in the matter, such as the fee motion, the memorandum of costs, or the motion to tax costs, and because the remaining invoices are administrative matters and correspondence. Plaintiff’s assertions do not suffice to render these fee requests unreasonable. Defendant’s invoices reflect a total of less than 10 hours of attorney time at an hourly rate of $750, with none of the tasks described taking longer than an hour. (Shtofman Decl. Exh. 3.) With the exception of the double-billed entries, Defendant’s counsel appears to have exercised billing judgment in making efficient use of his time to prevent runaway costs in light of his high hourly rate. The Court therefore finds that the remaining fees, totaling 9.05 hours of attorney time at $750 per hour, are reasonable.

Conclusion

Accordingly, Defendant’s Motion for Attorney’s Fees is GRANTED in the amount of $6,787.50, reflecting 9.05 hours of attorney time at $750 per hour.

Motion to Tax Costs

Plaintiff moves to tax costs sought via Defendant’s Memorandum of Costs.

Legal Standard

In general, the “prevailing party” is entitled as a matter of right to recover costs for suit in any action or proceeding. (Code Civ. Proc. §1032(b); Santisas v. Goodin (1998) 17 Cal.4th 599, 606; Scott Co. Of Calif. v. Blount, Inc. (1999) 20 Cal.4th 1103, 1108.) Assuming the “prevailing party” requirements are met, the trial court has no discretion to order each party to bear his or her own costs of suit. (Michell v. Olick (1996) 49 Cal.App.4th 1194, 1198; Nelson v. Anderson (1999) 72 Cal.App.4th 111, 129.) A defendant who is dismissed from the action is the “prevailing party.” (Code Civ. Proc. §1032(a)(4).) This is so whether the dismissal is voluntary or involuntary. (Santisas, 17 Cal.4th at 606.)

Allowable costs under Section 1033.5 must be reasonably necessary to the conduct of the litigation, rather than merely convenient or beneficial to its preparation, and must be reasonable in amount. An item not specifically allowable under Section 1033.5(a) nor prohibited under subdivision (b) may nevertheless be recoverable in the discretion of the court if they meet the above requirements (i.e., reasonably necessary and reasonable in amount). If the items appearing in a cost bill appear to be proper charges, the burden is on the party seeking to tax costs to show that they were not reasonable or necessary. (Ladas v. California State Automotive Assoc. (1993) 19 Cal.App.4th 761, 773-774.) On the other hand, if the items are properly objected to, they are put in issue and the burden of proof is on the party claiming them as costs. (Ibid.) Whether a cost item was reasonably necessary to the litigation presents a question of fact for the trial court and its decision is reviewed for abuse of discretion. (Ibid.) However, because the right to costs is governed strictly by statute, a court has no discretion to award costs not statutorily authorized. (Id.) Discretion is abused only when, in its exercise, the court “exceeds the bounds of reason, all of the circumstances being considered.” (Ibid.)

Timeliness of Motion

“Any notice of motion to strike or to tax costs must be served and filed 15 days after service of the cost memorandum. If the cost memorandum was served by mail or email, the period is extended as provided in Code of Civil Procedure section 1013.” (Cal. Rules of Court, rule 3.1700(b)(1).) Here, Defendant served the amended memorandum of costs by electronic service on February 5, 2024. (Amended Memorandum of Costs POS.) This motion was filed and served on February 15, 2024. The motion is therefore timely.

Challenged Costs

Plaintiff challenges four items in the memorandum of costs: (1) Deposition Costs under Item 4 in the amount of $317.63; (2) Attorney’s Fees in the amount of $7,500 under Item 10; (3) Court Reporter Fees in the sum of $500 under Item 11, and (4) unspecified other costs in the amount of $150 under Item 16.

1. Item 4: Deposition Costs

Plaintiff first challenges Defendant’s request for $317.63 in “deposition subpoena costs” under Item 4. (Amended Memorandum of Costs Item 4.) Deposition costs are expressly permitted for taking, recording, and transcribing depositions, interpreter fees at depositions, and travel expensed to attend depositions. (Code Civ. Proc. § 1033.5(a)(3).) Plaintiff contends that this cost item is improper because there was no deposition in this action and no deposition subpoenas served by Defendant. (Declaration of Elmira Howard ISO Mot. ¶ 6.) In opposition, Defendant submits invoices showing the costs were incurred to prepare responses to Plaintiff’s subpoena for records. (Defendant’s Exhs. 1-2 [invoices]; Exhs. 3-5 [subpoena for records].) As Plaintiff does not contest this argument in reply, Defendant has justified this cost item.

2. Item 10: Attorney’s Fees

Plaintiff also challenges Defendant’s request for attorney’s fees. For the reasons stated above in connection with Defendant’s Motion for Attorney’s Fees, the Court reduces Defendant’s fee request to $6,787.50.

3. Item 11: Court Reporter Fees

Plaintiff contests Defendant’s request for $500 in Court reporter fees from iDepo Reporters, invoiced for July 13, 2023. (Amended Memo. of Costs Item 11.) Court reporter fees are expressly recoverable as established by statute. (Code Civ. Proc. § 1033.5(a)(11).) Plaintiff argues that the only hearing occurring near that date in this matter was a July 17, 2023 Case Management Conference for which a court reporter was not necessary and therefore should be disallowed under section 1033.5(c)(2). In response, Defendant asserts that these costs are reasonably necessary to the litigation. The Court does not agree. It is not “reasonably necessary to the litigation” to hire a court reporter for a case management conference. This cost item should be taxed.

4. Item 16: Other Costs

Plaintiff seeks to tax Defendant’s request for $150 in other unspecified costs. (Amended Memo of Costs Item 16.) As Plaintiff states, the Memorandum does not disclose what this expense was or why it is recoverable. (Id.) In response, Defendant argues that this cost was for photographs of the property, without explaining what purpose those photographs served or why they were reasonably necessary to the litigation. Defendant has not satisfied his burden to justify this cost item. Item 16 must therefore be taxed.

Conclusion

Accordingly, Plaintiff’s Motion to Tax Costs is GRANTED IN PART. The Amended Memorandum of Costs is taxed as follows:

· Item 10 in the amount of $712.50

· Item 11 in the amount of $500.00

· Item 16 in the amount of $150.00.

CONCLUSION:

Accordingly, Defendant’s Motion for Attorney’s Fees is GRANTED in the amount of $6,787.50, reflecting 9.05 hours of attorney time at $750 per hour.

Moving Parties to give notice.

IT IS SO ORDERED.

Dated: April 22, 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.