Judge Timothy B. Taylor, Case 37-2022-00044755-CU-OR-CTL 2023-09-01 Tentative Ruling

Judge: Timothy B. Taylor, Case: 37-2022-00044755-CU-OR-CTL, Date: 2023-09-01 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - August 31, 2023

09/01/2023 01:30:00 PM C-72 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Timothy Taylor

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Civil - Unlimited Other Real Property Motion Hearing (Civil) 37-2022-00044755-CU-OR-CTL EDDIE KISFALUDY TRUSTEE OF THE ROCKY POINT TRUST U/A DATED JANUARY 8 2022 VS KISFALUDY [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion for Attorney Fees, 08/03/2023

Tentative Ruling on Motion for Attorneys' Fees Following OSC re Contempt Kisfaludy v. Kisfaludy, Case No. 2022-44755 Sept 1, 2023, 1:30 p.m., Dept. 72 1. Overview and Procedural Posture.

This is a partition action, essentially between brother and sister. Their mother passed away in March of 2022, leaving the family home on Bayonne Drive in San Diego to them 50/50. The complaint, seeking partition by sale, was filed in November of 2022.

Not long after the action was commenced, the parties filed a stipulated interlocutory judgment whereby defendant agreed to sign a listing agreement, agreed to move out of the house and remove her personal property, and agreed to cooperate in the sale of the house. ROA 10. The Judgment was entered November 30, 2022. ROA 7.

Defendant did not move out or sign the listing agreement as she promised to do. The court first heard about this in an ex parte hearing in January of 2023. ROA 13-14. The court was of the view that inasmuch as there is a stipulated judgment, the proper enforcement mechanism is contempt. ROA 15.

An application for an OSC re contempt was thereafter filed. ROA 20-27. There was no opposition. On April 7, 2023, the court granted the motion and set the arraignment on contempt for May 12, 2023. ROA 34-38.

At the arraignment, defendant pled guilty to four counts of contempt. ROA 43. A judgment was thereafter signed, in which defendant was ordered to pay plaintiffs' reasonable attorneys' fees and costs pursuant to Code of Civil Procedure section 1218(a).

Plaintiffs filed a cost bill (ROA 50) and now seek over $45,000 in attorneys' fees pursuant to Civil Code section 1717. ROA 52, 54-55. As before, there is no opposition.

2. Applicable Standards.

A. 'Under the American rule, each party to a lawsuit ordinarily pays its own attorney fees.' Mountain Air Calendar No.: Event ID: TENTATIVE RULINGS

3004329 47 CASE NUMBER: CASE TITLE: EDDIE KISFALUDY TRUSTEE OF THE ROCKY POINT TRUST U/A 37-2022-00044755-CU-OR-CTL Enterprises, LLC v. Sundowner Towers, LLC (2017) 3 Cal.5th 744, 751. Code of Civil Procedure section 1021 codifies the rule, providing that the measure and mode of attorney compensation is left to the agreement of the parties '[e]xcept as attorney's fees are specifically provided for by statute.' One such statute is Civil Code section 1717, which authorizes an award of 'reasonable attorney's fees' to a prevailing party '[i]n any action on a contract...to enforce that contract' if the contract provides for an award of attorney fees. Civ. Code § 1717(a). The court is also authorized under Code of Civil Procedure section 1218(a) to order a contemnor to pay 'the reasonable attorneys' fees and costs incurred by the party in connection with the contempt proceeding.' B. '[T]he fee setting inquiry in California ordinarily 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. After making the lodestar calculation, the court may augment or diminish that amount based on a number of factors specific to the case, including the novelty and difficulty of the issues, the attorneys' skill in presenting the issues, the extent to which the case precluded the attorneys from accepting other work, and the contingent nature of the work. Center for Biological Diversity v. County of San Bernardino (2010) 188 Cal.App.4th 603, 616.

C. The party seeking fees bears the burden of documenting the appropriate hours expended and hourly rates. Roth v. Pilkaytis (2017) 15 Cal.App.5th 283, 290. The burden then shifts to the opposing party 'to present specific objections, supported by rebuttal evidence.' Roos v. Honeywell Internat., Inc. (2015) 241 Cal.App.4th 1472, 1494, disapproved on another ground as stated in Hernandez v. Restoration Hardware, Inc. (2018) 4 Cal.5th 260, 287; see Gorman v. Tassajara Development Corp. (2009) 178 Cal.App.4th 44, 101 (noting the 'party opposing the fee award can be expected to identify the particular charges it considers objectionable'). 'General arguments that fees claimed are excessive, duplicative, or unrelated do not suffice.' Premier Medical Management Systems, Inc. v. California Ins. Guarantee Assn. (2008) 163 Cal.App.4th 550, 564.

3. Discussion and Ruling.

The unopposed motion for attorneys' fees is granted in the reduced amount of $26,327.50. Code Civ.

Proc. § 1218(a).

A. To determine whether an action is 'on the contract' for purposes of Civil Code section 1717, courts look to the complaint and focus on the basis of the cause of action. Brown Bark III, L.P. v. Haver (2013) 219 Cal.App.4th 809, 821. 'An action (or cause of action) is 'on a contract' for purposes of section 1717 if (1) the action (or cause of action) 'involves' an agreement, in the sense that the action (or cause of action) arises out of, is based upon, or relates to an agreement by seeking to define or interpret its terms or to determine or enforce a party's rights or duties under the agreement; and (2) the agreement contains an attorney fees clause.' Douglas E. Barnhart, Inc. v. CMC Fabricators, Inc. (2012) 211 Cal.App.4th 230, 242.

Here, although it is undisputed that the parties' Settlement Agreement contains an attorneys' fees provision, the action was not 'on the contract.' Plaintiffs sought to partition the property, based not on the terms of the Settlement Agreement, but on statute. (See Complaint at ¶ 14.) 'A co-owner of property has an absolute right to partition unless barred by a valid waiver.' LEG Investments v. Boxler (2010) 183 Cal.App.4th 484, 493. Indeed, the Settlement Agreement is not referenced anywhere in the Complaint. Accordingly, plaintiffs are not entitled to attorneys' fees under section 1717. See Orien v. Lutz (2017) 16 Cal.App.5th 957, 965 (rejecting argument that plaintiff's partition action 'involved a contract').

B. As noted above, the court previously found that plaintiffs are entitled to reasonable fees under Code of Civil Procedure section 1218(a). Plaintiffs now seek $45,849.00. This amount is based on 114.9 hours of work – including the instant fees motion – and equates to a blended hourly rate of approximately $399.03. Although the blended hourly rate is not per se unreasonable, '[a] trial court may not rubber stamp a request for attorney fees, but must determine the number of hours reasonably Calendar No.: Event ID: TENTATIVE RULINGS

3004329 47 CASE NUMBER: CASE TITLE: EDDIE KISFALUDY TRUSTEE OF THE ROCKY POINT TRUST U/A 37-2022-00044755-CU-OR-CTL expended.' Donahue v. Donahue (2010) 182 Cal.App.4th 259, 271. The court therefore turns to the lodestar analysis.

'To determine the reasonable hourly rate, courts consider the rate prevailing in the community for similar work.' Pasternack v. McCullough (2021) 65 Cal.App.5th 1050, 1055. In this case, the court finds counsel's hourly rates – which range from $200 to $435 – to be reasonable for similarly experienced attorneys performing similar work in San Diego County during the relevant timeframe. See Heritage Pacific Financial, LLC v. Monroy (2013) 215 Cal.App.4th 972, 1009 ('The court may rely on its own knowledge and familiarity with the legal market in setting a reasonable hourly rate.').

With respect to the hours spent, Code of Civil Procedure section 1218(a) limits fees to those 'incurred by the party in connection with the contempt proceeding.' Here, a review of the billing entries shows that counsel is seeking fees for matters unrelated to initiating and prosecuting the contempt proceeding, including filing the complaint, preparing an application for writ of possession, and drafting a motion to enforce the settlement under Code of Civil Procedure section 664.6.

The court also deletes numerous billing entries showing interoffice meetings and communications between attorneys and support staff. Although strategy is an integral part of litigation, is not reasonable for both participants at the conference to bill for it. 'A trial court has discretion to award less than the fee amount requested where work performed was duplicative.' Tukes v. Richard (2022) 81 Cal.App.5th 1, 16.

Finally, the court elects to cut time for certain redacted time entries where it is nearly impossible determine what work was actually performed. For example, on January 31, 2023, Mr. Whitman billed .9 hours to this case, but the description of the work performed is completely redacted. (Matuk Decl., ¶ 14 at p. 7.) Similarly, on February 6, 2023, there are two billing entries of .9 hours from Mr. Whitman that are merely described as 'ANALYZE...' (Id.) In a footnote, Mr. Matuk contends that plaintiffs 'redacted where appropriate information subject to the attorney-client privilege.' (Matuk Decl., ¶ 14 at p. 5.) But counsel provides no additional detail as to why so many redactions were made on the basis of privilege, nor did he submit unredacted invoices for an in camera review. In fact, it appears that many of the redactions cannot be explained under the attorney-client privilege, as the privilege only protects disclosure of communications between an attorney and his or her client, not the disclosure of the 'underlying facts upon which the communications are based.' Benge v. Superior Court (1982) 131 Cal.App.3d 336, 349.

C. In sum, the court finds that a reasonable and proper amount of attorneys' fees to be awarded to plaintiffs in connection with the contempt proceeding is $26,327.50, which consists of (1) $14,287.50 for Mr. Matuk's services (38.1 hours at $375 per hour); (2) $10,440.00 for Mr. Whitman's services (24 hours at $435 per hour); and (3) $1,600.00 for Ms. Grela's services (8 hours at $200 per hour). This amount is to be paid from defendant's share of the sale proceeds of the real property located at 3535 Bayonne Drive, San Diego, California 92109.

D. The request for $4,092.72 in costs is granted. Code Civ. Proc. § 1218(a). No motion to tax has been filed. See CRC 3.1700(b)(1). This amount is to be paid from defendant's share of the sale proceeds of the real property located at 3535 Bayonne Drive, San Diego, California 92109.

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