Judge Thomas D. Long, Case Number: 21STCV36174, Date: 2024-05-14 Tentative Ruling

On April 20, 2023, the Court granted Defendant Razmer #3 LLC’s motion for summary judgment of Plaintiff Varouj Krajian’s first amended complaint. The Court entered judgment on May 8, 2023.

On July 7, 2023, Defendant filed a motion for attorney fees. Defendant seeks $184,251.00 in attorney fees.

Plaintiff argues that the motion is premature because an appeal is pending. (Opposition at pp. 4-5.) However, “the filing of a notice of appeal does not deprive the trial court of jurisdiction to award attorney fees as costs post trial. Although a prevailing party at trial may not be the prevailing party after an appeal, it has been held that a motion for attorney fees is not premature despite the filing of a notice of appeal.” (Bankes v. Lucas (1992) 9 Cal.App.4th 365, 368.)

Plaintiff argues that Defendant is not entitled to attorney fees under the contract. (Opposition at pp. 3-4.) A prevailing party may recover reasonable attorney fees in any action on a contract where the contract specifically provides that attorney fees and costs incurred to enforce that contract shall be awarded, whether that party is specified in the contract or not. (Civ. Code, § 1717, subd. (a).) “California courts liberally construe the term ‘“‘on a contract””’ as used within section 1717. [Citation.] As long as the action ‘involve[s]’ a contract it is ‘on [the] contract’ within the meaning of Section 1717. [Citations.]” (Dell Merk, Inc. v. Franzia (2005) 132 Cal.App.4th 443, 455.)

The License Agreement provides for an award of attorney fees to the prevailing party “[i]n the event litigation is necessary for any party to commence any action to enforce any of the provisions of this agreement.” (FAC, Ex. C at p. 3.) According to Plaintiff, “the attorneys’ fees clause in the License Agreement is strictly limited to actions on a contract,” but here, he used the existence of the License Agreement as evidence of his predecessor-in-interest’s granting of Krajian permission to use the license area. Krajian’s expenditure of time and money in reasonable reliance on the permission then caused the revocable license granted under the License Agreement to become an irrevocable license.” (Opposition at pp. 3-4.) However, the FAC alleged that “Defendants’ Property and Plaintiff’s Property are subject to an irrevocable license agreement.” (FAC ¶ 14.) The first cause of action sought to establish Plaintiff’s continued right to use the license area under the “irrevocable License Agreement between Plaintiff’s and Defendants’ predecessors that was intended to run with the land.” (FAC ¶¶ 38-43.) Accordingly, this action was one intended to “enforce any of the provisions of this agreement.”

California courts apply the “lodestar” approach to determine what fees are reasonable. (See, e.g., Holguin v. DISH Network LLC (2014) 229 Cal.App.4th 1310, 1332.) This inquiry “begins with the ‘lodestar,’ i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate.” (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095.) From there, the “lodestar figure may then be adjusted, based on consideration of factors specific to the case, in order to fix the fee at the fair market value for the legal services provided.” (Ibid.) Relevant factors include “(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, [and] (4) the contingent nature of the fee award.” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132.) The party seeking fees has the burden of documenting the appropriate hours expended and hourly rates. (City of Colton v. Singletary (2012) 206 Cal.App.4th 751, 784.)

Defendant’s counsel charge various hourly rates: $575 or $595 for Elsa Horowitz; $675 for Christopher Heck; $595 for Mark J. Rosenbaum; $285 or $295 for Vanessa H. Widener; $250 or $265 for Ali Vaqar; and $250 or $265 for Jesse Yanco. (Horowitz Decl. ¶ 10; Heck Decl. ¶ 5; Rosenbaum Decl. ¶ 5; Widener Decl. ¶ 8.)

Plaintiff argues that some deductions are warranted for duplicative work, work relating to coverage and communication with an insurance carrier, and inflated time. (Opposition at pp. 6-7.) Indeed, one firm “has several entries wherein a call with Vanessa is billed,” and the billing records for each firm for the same call differ in the amount of time recorded. (Id. at p. 7.) Accordingly, the Court will reduce the award for some of this time.

Plaintiff also argues that the motion for summary judgment was “limited to a narrow set of issues – namely the issue of notice,” so Defendant’s recovery should be limited to $33,511.50, for just the work on the motion for that issue. (Opposition at pp. 7-8.) Plaintiff cites no authority for this limitation. Much of litigation, including discovery, is necessary before reaching the summary judgment stage. The Court will not limit Defendant’s attorney fees award to time spent on a single issue in the motion for summary judgment.

Considering the type of case, complexity of the case, length of litigation, and the record as a whole, the Court concludes that a reasonable amount of attorney fees is $165,000.00. (See Kerkeles v. City of San Jose (2015) 243 Cal.App.4th 88, 102 [“When a ‘voluminous fee application’ is made, the court may . . . ‘make across-the-board percentage cuts either in the number of hours claimed or in the final lodestar figure.’”].)

The motion for attorney fees is GRANTED IN PART. The Court awards Defendant $165,000.00 in attorney fees.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. If all parties in the case submit on the tentative ruling, no appearances before the Court are required unless a companion hearing (for example, a Case Management Conference) is also on calendar.

Hon. Thomas D. Long

Judge of the Superior Court