Judge: Theresa M. Traber, Case: BC497940, Date: 2023-05-23 Tentative Ruling
Case Number: BC497940 Hearing Date: May 23, 2023 Dept: 47
Tentative Ruling
Judge Theresa M. Traber, Department 47
HEARING DATE: May 23, 2023 JUDGMENT: September 12, 2018
CASE: LA Open Door Presbyterian Church v.
Evangelical Christian Credit Union, et al.
CASE NO.: BC497940 
MOTION
FOR ATTORNEY’S FEES
MOVING PARTY: Defendant Evangelical Christian Credit Union
RESPONDING PARTY(S): Plaintiff LA Open
Door Presbyterian Church
CASE
HISTORY:
·
12/20/21: Complaint filed.
·
09/12/18: Judgment entered.
·
06/03/19: Amended Judgment Entered
·
12/22/20: Remittitur affirming judgment.
STATEMENT
OF MATERIAL FACTS AND/OR PROCEEDINGS:
Plaintiff alleged that Defendant Evangelical Christian Credit Union manufactured
Plaintiff’s default of a commercial loan, even though the construction project
was incomplete due to the failure of the general contractor—insisted upon by
ECCU as a condition of the loan—failed to complete the project. Defendant ECCU
conducted a trustee’s sale and Plaintiff was locked out of the subject
property, while ECCU’s security guards allegedly stole Plaintiff’s personal
property.
Defendant moves to recover
attorney’s fees incurred on appeal.
TENTATIVE RULING:
Defendant’s Motion for Attorney’s
Fees is GRANTED in the amount of $122,278.00.
DISCUSSION:
Defendant
moves to recover attorney’s fees incurred on appeal.
Entitlement to Fees
Defendant
contends that it is entitled to fees as the prevailing party on the Forbearance
Agreement in this action.
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.
(Civ. Code § 1717(a).)
Here, the
Forbearance Agreement which Plaintiff sought to rescind, and upon which
Defendant prevailed, states: “Borrower agrees to pay upon demand all of ECCU’s
costs and expenses, including ECCU’s attorneys’ fees and ECCU’s legal expenses,
incurred in connection with the enforcement of this agreement.” (Declaration of
Isaiah Weedn ISO Mot. Exh. B, sub-Exh. A p. 13.) Fees incurred on appeal of and
for enforcement of a judgment which affirms a forbearance agreement are
incurred in connection with enforcement of that forbearance agreement on their
face. The June 3, 2019 judgment, affirmed by the Court of Appeal on December
22, 2020, names Defendant as the prevailing party in this action. (June 3, 2019
Amended Judgment.) Defendant is therefore entitled to reasonable attorney’s
fees in this action.
Reasonable Attorney’s Fees
Defendant
moves for an additional award of attorney’s fees in the amount of $122,278.
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.)
Defendant
has provided an itemized list of the attorney and paralegal time billed by the
two firms retained by Defendant in connection with this case since the Court’s
previous May 2019 fee award. (Weedn Decl. Exhs. Q-R.) Attorney Isaiah Weedn of
Sheppard, Mullin, Richter, & Hampton LLP testifies to his own skills,
training, experience, and hourly rate as well as that of his colleague
Jacqueline Luther. (Weedn Decl. ¶ 18.) According to this testimony, Attorneys
Weedn and Luther customarily bill at $890 and $910 per hour, but reduced their
hourly rate to $485 in this matter. (Id.) Attorney Weedn billed 126
hours on this matter, and Attorney Luther billed 47.8, for a total of $84,293
in fees billed by SMRH. (Id. ¶ 20.)
Similarly,
Attorney Michael Wallin of Wallin & Russel, LLP testifies to his own
experience, skills, training, and hourly rate ($200), as well as that of his
colleagues Justin Wolf ($250) and John Russell ($200) and paralegal Michael
Jarzyna ($125). (Declaration of Michael Wallin ISO Mot. ¶¶ 4, 6.) For each
attorney and paralegal, respectively, WR reports that it billed 148.9 hours for
Attorney Wallin, 14.7 hours for Wolf, 15.4 hours for Russell, and 11.6 hours
for paralegal Jarzyna, for a total bill of $37,985. (Id. ¶ 6.)
In
opposition, Plaintiff asserts that the hourly rates of Defendant’s counsel are
unreasonably high, and that the overall fees incurred are unreasonable.
Plaintiff offers no factual basis for either of these assertions, and the Court
does not find these rates nor hours to be unreasonable on their face. A bald
assertion that Defendant’s claimed fees are too high is not sufficient, without
more, to preclude Defendant from recovering these fees.
Plaintiff
also argues that any legal billing relating to the bankruptcy proceedings concerning
the Korean Western Presbyterian Church, which Defendant contends is Plaintiff’s
alter ego, should be stricken on the basis that there has been no determination
of the alter ego relationship. Plaintiff does not cite to any specific billing
entries which it contends are improper. The Court observes that several billing
entries by both firms between October of 2019 and July of 2020 pertain to KWPC.
(See, e.g., Weedn Decl. Exh. R.) However, the bulk of these fees appear to
pertain to legal research regarding the potential impact of the KWPC bankruptcy
proceeding on this matter, or in the preparation of and filing of a proof of
claim against KWPC to preserve Defendant’s right to collect on this judgment in
the event of a merger between Plaintiff and KWPC. (Id. Exhs. Q-R, see
also Exh. S.) In the Court’s view, these measures constitute an exercise of
prudence to preserve Defendant’s right to recovery, and the Court cannot say
that they are unreasonable on their face.
The Court
therefore finds that Defendant is entitled to the requested fee award of
$122,278.
CONCLUSION:
Accordingly, Defendant’s Motion for
Attorney’s Fees is GRANTED in the amount of $122,278.
Moving
Party to give notice.
IT IS SO ORDERED.
Dated: May 23, 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.