Judge Thomas Falls, Case 19PSCP00242 2023-02-15 Tentative Ruling

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Counsel may submit on the tentative rulings by calling the clerk in Dept. O at 909-802-1126 before 8:30 the morning of the hearing. Submission on the tentative does not bind the court to adopt the tentative ruling at the hearing should the opposing party appear and convince the court of further modification during oral argument.

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CITY OF CLAREMONT’S MOTION FOR ATTORNEYS’ FEES AND COSTS is CONTINUED for untimely service.

This case arises from a city’s receivership to remedy alleged substandard housing conditions.

On May 31, 2019, the City of Claremont filed the instant action against Defendant George Hernandez based upon the City's December 19, 2018 inspection, which showed over fifteen health and safety code and building code violations.

On August 28, 2022, the City filed a ‘NOTICE OF MOTION FOR ATTORNEY’S FEES’ (but no motion was provided).

On February 1, 2023, Defendant filed ‘OBJECTIONS TO THE CITY OF CLAREMONT’S MOTION FOR ATTORNEY FEES AND COSTS DUE TO INSUFFICIENT NOTICE, AND REQUEST FOR CONTINUANCE TO ALLOW RESPONDENT TO PREPARE AN ADEQUATE OPPOSITION TO THE MOTION’ (“Opposition”).

Defendant argues that the motion was not timely served in compliance with CCP section 1005. (Opp. p. 1.)[1]

Unless otherwise ordered or specifically provided by law, all moving and supporting papers shall be served and filed at least 16 court days before the hearing. The moving and supporting papers served shall be a copy of the papers filed or to be filed with the court. However, if the notice is served by mail, the required 16-day period of notice before the hearing shall be increased by five calendar days if the place of mailing and the place of address are within the State of California, 10 calendar days if either the place of mailing or the place of address is outside the State of California but within the United States, and 20 calendar days if either the place of mailing or the place of address is outside the United States, and if the notice is served by facsimile transmission, express mail, or another method of delivery providing for overnight delivery, the required 16-day period of notice before the hearing shall be increased by two calendar days.”

Here, the Proof of Service indicates that Defendant was served via personal service and electronic service on January 23, 2023. Taking electronic service, which would require notice by 16 days plus an additional two court days, that would at the very least require service by Thursday, January 19, 2023, meaning service of the motion was untimely by two court days.

Therefore, as the motion is untimely, the court GRANTS Defendant’s request to CONTINUE the hearing.[2]

Though the court need not thoroughly address the merits of the motion as Defendant has sought a continuance to properly oppose the motion, the court notes that the City’s motion would have been continued for another reason: lack of information setting forth the reasonable hours expended on the matter.[3]

The City requests total fees in the amount of $42,562.60 for a total of 155.1 hours of work expended on the matter. (Motion p. 13.) The City explains that the time spent by the City’s Counsel, Duzman, can be “broken down” into emails, calls, preparation of pleadings, legal research, appearances, and anticipates fees to be billed. (Motion pp. 13-14.) While “[a]n attorney’s testimony as to the number of hours worked is sufficient evidence to support an award of attorney fees, even in the absence of detailed time records,”[4] what Plaintiff has provided amounts to block billing.[5] This is problematic because the touchstone of determining reasonable attorney fees is utilization of the “lodestar” method, an inquiry that requires the court to examine “the number of hours reasonably expended.” (Id. at p. 1004) (italics added). Rather, what Plaintiff has provided amounts to vague billing entries, leaving the court to speculate how long certain work took (e.g., how many hours of research was spent on drafting a receivership petition or how much time did counsel take making phone calls); thereby, inherently precluding the court to adjudicate the motion on its merits.

Therefore, the court encourages Plaintiff to provide Defendant and the court with a more detailed billing scheme.

[1] Defendant also argues that the Proof of Service is false as it was impossible to personally serve him as Defendant’s Counsel’s was never in his office because the office was closed due to water/flooding damage. The court need not address that concern for purposes of this motion as the motion is continued, which provides relief to Defendant for untimely service.

[2] It is improper for a Court to deny, strike or take off calendar an untimely pleading if no “substantial rights” have been violated under CCP §475. However, a court may properly continue the motion. (Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 967 (courts have inherent authority to manage their calendars and control proceedings before them).

[3] Defendant argues that the City is not the prevailing party. That will not be addressed in this ruling, but the court will briefly address the hours expended on the case as Plaintiff may need to supplement its motion.

[4] Steiny and Company, Inc. v. California Electric Supply Company, Inc. (2000) 79 Cal.App.4th 285, 293; see also Padilla v. McClellan (2001) 93 Cal.App.4th 1100, 1106.)

[5] Block billing occurs when “a block of time [is assigned] to multiple tasks rather than itemizing the time spent on each task.” (Heritage Pacific Financial, LLC v. Monroy (2013) 2215 Cal.App.4th 972, 1010.)