Judge Upinder S. Kalra, Case 19STCV35635 2022-08-11 Tentative Ruling

Judge: Upinder S. Kalra, Case: 19STCV35635, Date: 2022-08-11 Tentative Ruling

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Case Number: 19STCV35635 Hearing Date: August 11, 2022 Dept: 51

Tentative Ruling

Judge Upinder S. Kalra, Department 51

HEARING DATE: August 11, 2022

CASE NAME: Judith DeLong, et al. v. Engel & Engel, LLP, et al.

CASE NO.: 19STCV35635

PLAINTIFFS’ MOTION FOR ATTORNEYS’ FEES

MOVING PARTY: Defendants Engel & Engel, et al.

RESPONDING PARTY(S): Plaintiffs Judith DeLong, et al.

TENTATIVE RULING:

Motion for Attorneys’ Fees is GRANTED, subject to a reduction.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

On October 4, 2019, Plaintiffs John DeLong and Judith DeLong, as individual and co-trustees of the DeLong Family Trust, Dated May 20, 2005, filed a complaint against Defendants Engel & Engel, LLP, Douglas Chadwick Biggins, First American Title Company, and Does 1 through 10 (“Defendants”). The complaint was for declaratory relief. Plaintiffs alleged that defendants’ collection efforts were improper because they were undertaken against the debtors as trustees of their revokable living trusts as opposed to them individually. Engel is the judgment creditor, Biggins is Engel’s attorney, and First American is the escrow company which satisfied the judgment to remove the lien from real property in order to transfer clear title.

On November 12, 2019, Defendant Chadwick Biggins filed a Special Motion to Strike Under CCP § 425.16, which was GRANTED.

On January 3, 2020, Defendant Engel & Engel, LLP, filed a Special Motion to Strike Under CCP § 425.16, which was GRANTED.

On September 28, 2020, the Plaintiffs filed an Appeal.

On December 28, 2021, the Court of Appeal issued a remittitur and affirmed the court’s order granting the Anti-SLAPP Motions.

On February 1, 2022, Defendants filed a Motion for Attorneys’ Fees, which was GRANTED, in part.

On April 27, 2022, Defendants filed separate Memorandum of Costs After Judgment.

On May 19, 2022, Defendants filed a Motion for Attorneys’ Fees, based on the Plaintiffs’ appeal concerning the awarding of attorneys’ fees for the Anti-SLAPP motion.

LEGAL STANDARD

A prevailing party is entitled to recover costs, including attorneys’ fees, as a matter of right, except as otherwise expressly provided by statute. (See Code Civ. Proc., §§ 1032(a)(4), 1032(b), 1033.5.) A prevailing party is “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.” (Id., § 1032(a)(4).)

However, “[w]here an action has been voluntarily dismissed or dismissed pursuant to a settlement of the case, there shall be no prevailing party for purposes of [Civil Code section 1717].” (Civ. Code, § 1717(b)(2); see Shapira v. Lifetech Resources, LLC (2018) 22 Cal.App.5th 429, 441 (“A trial court lacks discretion to award fees under section 1717(b)(2) where a case has been voluntarily dismissed.”); see also Santisas v. Goodin (1998) 17 Cal.4th 599, 615.)

The fee setting inquiry in California ordinarily begins with the “lodestar” method, i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate. 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. 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. (Serrano v. Priest (1977) 20 Cal.3d 25, 49.)

Such an approach anchors the trial court’s analysis to an objective determination of the value of the attorney’s services, ensuring that the amount awarded is not arbitrary. (Id. at 48, n.23.) After the trial court has performed the lodestar calculations, it shall consider whether the total award so calculated under all of the circumstances of the case is more than a reasonable amount and, if so, shall reduce the section 1717 award so that it is a reasonable figure. (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095-96.)

The factors considered in determining the modification of the lodestar include the nature and difficulty of the litigation, the amount of money involved, the skill required and employed to handle the case, the attention given, the success or failure, and other circumstances in the case. (EnPalm, LLC v. Teitler Family Trust (2008) 162 Cal. App. 4th 770, 774 (emphasis in original).) A negative modifier was appropriate when duplicative work had been performed. (Thayer v. Wells Fargo Bank, N.A. (2001) 92 Cal.App.4th 819.)

Under CCP § 425.16(c), a prevailing defendant shall recover attorneys’ fees. However, if a court finds the defendant’s motion frivolous, the plaintiff is entitled to fees, pursuant to 128.5. (CCP § 426.15(c)(1).

ANALYSIS:

Factual Background:

The Defendants’ Anti-SLAPP Motion was granted and was awarded attorneys’ fees. The Plaintiff filed two appeals, one as to the granting of the Anti-SLAPP Motion and one as to the awarding of attorneys’ fees. The appeal as to the Anti-SLAPP Motion was affirmed and this Court awarded attorneys’ fees on April 5, 2022. The appeal as to the attorneys’ fees was voluntarily dismissed by the Plaintiffs on April 6, 2022. The remittitur was filed on April 12, 2022, which indicated that the Respondents shall recover costs on appeal.

Motion:

Defendants move for attorneys’ fees on appeal, requesting $8,975.00. The Plaintiffs object on the basis that the appeal was voluntarily dismissed and the Defendants failed to provide evidentiary support for the fees and costs.

Timeliness:

Under California Rules of Court Rule 3.1702(c)(1) and Rule 8.278(c)(1), a motion must be filed within 40 days after the issuance of the remittitur. Here, the motion is timely as the remitter was issued on April 12, 2022, and the current motion was filed on May 19, 2022.

Fees are Appropriate on Appeal

“Where a contract or a statute creates a right for the prevailing party to recover attorney fees, the prevailing party is also entitled to attorney fees on appeal.” (MBNA America Bank, N.A. v. Gorman (2006) 147 Cal.App.4th Supp. 1, 13, as modified on denial of reh'g (Jan. 2, 2007)). Here, the appeal is based on the Anti-SLAPP motion, more specifically the awarding of attorneys’ fees in relation to that motion. Moreover, Plaintiff’s assertion that this involves enforcing a judgment is incorrect as this is a motion for fees regarding the Plaintiffs’ appeal. Under the Anti-SLAPP Motion, CCP § 425.16, a prevailing defendant is entitled to attorneys’ fees. Therefore, the Defendant is entitled to fees and the Plaintiffs’ argument to the contrary fails.

Reasonableness:

In California, courts utilized the lodestar method to determine if fees are reasonable. This is calculated by multiplying the total number of hours worked by the attorney’s reasonable hourly rate.

Here, the fees requested are based on 14.85 hours of work at a rate of $600 per hour. (Motion for Fees, Decl. Biggins, Ex. 2). The hourly rate is reasonable, as this Court previously indicated. However, as Plaintiffs ague, these hours are not reasonable. The Court agrees to an extent. While the Defendants did have to research and prepare for a potential appeal, no brief was prepared. Many of the entries are receiving and reviewing time extensions. Moreover, the estimated time for the yet to be written Reply was excessive and unreasonable. As such, the requested amount is reduced. Using a lodestar method the Court concludes that the work performed should have totaled no more than 11.85 hours.

Satisfaction of Judgment:

Lastly, as to the issue of satisfaction of the judgment, Conservatorship of McQueen is distinguishable. The Plaintiff’s point out that the Court in McQueen indicated that a judgment creditor cannot “accept a payment as full satisfaction of the judgment, then file a memorandum or motion for additional enforcement costs and fees.” (Conservatorship of McQueen (2014) 59 Cal.4th 602, 616). However, there, while the Plaintiff did not acknowledge the satisfaction of the judgment, the correspondence between the two parties indicated that the Plaintiff was prepared to accept final payment. Here, the email correspondence between the parties, as provided by Plaintiffs, indicate that the Defendants specifically rejected the amount and was not prepared to the amount offered by the Plaintiffs. (Decl. Waier, Ex. 3). Moreover, the Court in McQueen stated, “Even if payment is by certified check or similar instrument, the acceptance of which arguably constitutes satisfaction (see Cal. U. Com.Code, § 3310, subd. (a)), the judgment creditor retains, at the least, the option of rejecting the certified check and filing the motion or memorandum for enforcement costs and fees.” (Id. at 615.). Here, the Defendant rejected the check.

The Motion for Attorneys’ Fees is GRANTED, subject to a reduction.

Conclusion

For the foregoing reasons, the Court decides the pending motion as follows:

Motion for Attorneys’ Fees is GRANTED, at a rate of $600 for a total of 11.85 hours, which equals $7,110 payable within 30 days of service of this order.

Moving party to give notice.

IT IS SO ORDERED.

Dated: August 11, 2022 ___________________________________

Upinder S. Kalra

Judge of the Superior Court

PLAINTIFFS’ MOTION TO STRIKE, OR ALTERNATIVELY, TAX MEMORANDUM OF COSTS

MOVING PARTY: Plaintiffs John and Judith DeLong

RESPONDING PARTY(S): Defendant Chadwick Biggins

REQUESTED RELIEF:

1. An order striking the Memorandum of Costs.

2. An order taxing the Memorandum of Costs

TENTATIVE RULING:

1. Motion to Strike Costs is DENIED.

2. Motion to Tax Costs is DENIED.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

On November 12, 2019, Defendant Chadwick Biggins filed a Special Motion to Strike Under CCP § 425.16, which was GRANTED.

On January 3, 2020, Defendant Engel & Engel, LLP, filed a Special Motion to Strike Under CCP § 425.16, which was GRANTED.

On September 28, 2020, the Plaintiffs filed an Appeal.

On December 28, 2021, the Court of Appeal issued a remittitur and affirmed the court’s order granting the Anti-SLAPP Motions.

On February 1, 2022, Defendants filed a Motion for Attorneys’ Fees, which was GRANTED, in part.

On May 19, 2022, Defendants filed a Motion for Attorneys’ Fees, based on the Plaintiffs’ appeal concerning the awarding of attorneys’ fees for the Anti-SLAPP motion.

On April 27, 2022, Defendants each filed a Memorandum of Costs After Judgment.

On May 6, 2022, Plaintiffs filed a Motion to Strike, or in the Alternative, Tax Costs to each Memorandum of Costs After Judgment. Defendants filed an Opposition on July 22, 2022. Plaintiffs’ reply was filed on August 4, 2022.

LEGAL STANDARD

A “prevailing party” entitled to costs: In general, the “prevailing party” is entitled as a matter of right to recover costs for suit in any action or proceeding. CCP § 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. The term “prevailing party” for costs purposes is defined by statute to include:

· The party with a net monetary recovery;

· A defendant who is dismissed from the action;

· A defendant where neither plaintiff nor defendant recovers anything; and

· A defendant as against those plaintiffs who do not recover any relief against that defendant. (CCP § 1032(a)(4).)

If the party does not fall within one of these four express categories, the court may exercise its discretion to award or deny costs. See Lincoln v. Schurgin (1995) 39 Cal.App.4th 100, 105.

“A verified memorandum of costs is prima facie evidence of the propriety of the items listed on it, and the burden is on the party challenging these costs to demonstrate that they were not reasonable or necessary. Bender v. County of Los Angeles (2013) 217 Cal.App.4th 968, 989. “A party’s mere statements in the points and authorities accompanying its notice of motion to strike cost bill and the declaration of counsel are insufficient to rebut the prima facie showing that the costs were necessarily incurred.” Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1266.

The losing party may dispute any or all of the items in the prevailing party’s memorandum of costs by a motion to strike or tax costs. CRC Rule 3.1700(b). Technically, a motion to strike challenges the entire costs bill whereas a motion to tax challenges particular items or amounts.

California Rules of Court Rule 3.1700 provides that: “A prevailing party who claims costs must serve and file a memorandum of costs within 15 days after the date of mailing of the notice of entry of judgment or dismissal by the clerk under Code of Civil Procedure section 664.5 or the date of service of written notice of entry of judgment or dismissal, or within 180 days after entry of judgment, whichever is first. The memorandum of costs must be verified by a statement of the party, attorney, or agent that to the best of his or her knowledge the items of cost are correct and were necessarily incurred in the case.” CCP § 1033.5 provides the items that are allowable as costs under CCP § 1032.

Evidentiary Objection:

Defendant’s Objection: Declaration Waier, ¶19, Ex. 18, which states Ex. 18 is the copy of the Cashier’s check payable to Biggins Law.

Objection based on lacks foundation, lacks authentication, hearsay, document is not purports to be as the document attached is not cashier’s check.

Objection SUSTAINED; Exhibit is not a cashier’s check.

ANALYSIS:

Plaintiffs move to strike the memorandum of costs, or in the alternative, tax the costs submitted by Defendant Chad Biggins.

As a procedural note, Plaintiffs argue that Defendant’s Memorandum of Costs cites to a non-existent code statute, CCP § 680.040. However, this argument fails as that code section is not on the form submitted by Defendants; CCP § 685.040 is cited in line item 7, which is correct.

Plaintiffs contends that Defendant is not entitled to costs on the April 27, 2022, Memorandum of Costs, specifically the attorneys’ fees. Under CCP § 685.080, a motion may be filed by a judgment creditor. With this noticed motion, the judgment creditor shall “describe the costs claimed, shall state their amount, and shall be supported by an affidavit of a person who has knowledge of the facts stating that to the person's best knowledge and belief the costs are correct, are reasonable and necessary, and have not been satisfied.” Plaintiff also argues that Defendant did not provide competent evidentiary demonstration to ensure that the costs are reasonable.

However, this argument fails. As Defendant correctly states, CCP § 685.080 states “may,” not “shall,” which means this statute is discretionary. Under CCP § 685.070, a judgment creditor may claim costs, such as attorneys’ fees “if allowed by Section 685.040.” The procedure indicates that before judgment is “fully satisfied but not later than two years after the costs have been incurred, the judgment creditor claiming costs under this section shall file a memorandum of costs with the court clerk and serve a copy on the judgment debtor.” Unlike CCP§ 685.080, section § 685.070 only requires a party to be executed under oath and state the to the best of the person’s knowledge the costs are “correct, are reasonable, and have not been satisfied.” Here, the Memorandum of Costs is sufficient, and under Paragraph 4, it states that the costs are reasonably necessary and correct, and have not been satisfied.

As for the judgment issue, Plaintiffs contend that the cashier’s check that was sent to the Defendant constitutes full payment of the judgment. This contention fails, as is discussed in the Motion for Attorneys’ Fees that was filed by Defendant separately. Plaintiffs rely on Conservatorship of McQueen. That case is distinguishable. The Plaintiff’s point out that the Court in McQueen indicated that a judgment creditor cannot “accept a payment as full satisfaction of the judgment, then file a memorandum or motion for additional enforcement costs and fees.” (Conservatorship of McQueen (2014) 59 Cal.4th 602, 616). However, there, while the plaintiff did not acknowledge the satisfaction of the judgment, the correspondence between the two parties indicated that the Plaintiff was prepared to accept final payment. Here, the email correspondence between the parties, as provided by Plaintiffs, indicate that the Defendants specifically rejected the amount and was not prepared to the amount offered by the Plaintiffs. (Decl. Waier, Ex. 3, filed 6/24/2022). Moreover, the Court in McQueen stated, “Even if payment is by certified check or similar instrument, the acceptance of which arguably constitutes satisfaction (see Cal. U. Com.Code, § 3310, subd. (a)), the judgment creditor retains, at the least, the option of rejecting the certified check and filing the motion or memorandum for enforcement costs and fees.” (Id. at 615.). Here, the Defendant rejected the check.

Alternatively, Plaintiffs request that the court tax the costs as they are padded, unreasonable, or unnecessary. The Declaration of Randall Waier, filed on August 4, 2022, provides a breakdown of the hours and indicates why these requested hours are unreasonable. Defendant contends that these costs were reasonable, as they were expended on this current matter. Plaintiffs’ request to tax costs is also denied. Verified cost bills are “prima facie evidence the costs, expenses and services listed were necessarily incurred…” (Hadley v. Krepel (1985) 167 Cal.App.3d 677, 682).

Conclusion:

For the foregoing reasons, the Court decides the pending motion as follows:

Motion to Strike Costs is DENIED.

Motion to Tax Costs is DENIED.

Moving party is to give notice.

IT IS SO ORDERED.

Dated: August 11, 2022 __________________________________ Upinder S. Kalra

Judge of the Superior Court

PLAINTIFFS’ MOTION TO STRIKE, OR ALTERNATIVELY, TAX MEMORANDUM OF COSTS

MOVING PARTY: Plaintiffs John and Judith DeLong

RESPONDING PARTY(S): Defendant Engel & Engel, LLP

REQUESTED RELIEF:

1. An order striking the Memorandum of Costs.

2. An order taxing the Memorandum of Costs

TENTATIVE RULING:

1. Motion to Strike Costs is DENIED.

2. Motion to Tax Costs is DENIED.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

On November 12, 2019, Defendant Chadwick Biggins filed a Special Motion to Strike Under CCP § 425.16, which was GRANTED.

On January 3, 2020, Defendant Engel & Engel, LLP, filed a Special Motion to Strike Under CCP § 425.16, which was GRANTED.

On September 28, 2020, the Plaintiffs filed an Appeal.

On December 28, 2021, the Court of Appeal issued a remittitur and affirmed the court’s order granting the Anti-SLAPP Motions.

On February 1, 2022, Defendants filed a Motion for Attorneys’ Fees, which was GRANTED, in part.

On May 19, 2022, Defendants filed a Motion for Attorneys’ Fees, based on the Plaintiffs’ appeal concerning the awarding of attorneys’ fees for the Anti-SLAPP motion.

On April 27, 2022, Defendants each filed a Memorandum of Costs After Judgment.

LEGAL STANDARD

· The party with a net monetary recovery;

· A defendant who is dismissed from the action;

· A defendant where neither plaintiff nor defendant recovers anything; and

· A defendant as against those plaintiffs who do not recover any relief against that defendant. (CCP § 1032(a)(4).)

If the party does not fall within one of these four express categories, the court may exercise its discretion to award or deny costs. See Lincoln v. Schurgin (1995) 39 Cal.App.4th 100, 105.

Evidentiary Objection:

Defendant’s Objection: Declaration Waier, ¶19, Ex. 18, which states Ex. 18 is the copy of the Cashier’s check payable to Biggins Law.

Objection based on lacks foundation, lacks authentication, hearsay, document is not purports to be as the document attached is not cashier’s check.

Objection SUSTAINED; Exhibit is not a cashier’s check.

ANALYSIS:

Plaintiffs move to strike the memorandum of costs, or in the alternative, tax the costs submitted by Defendant Engel & Engel.

Conclusion:

For the foregoing reasons, the Court decides the pending motion as follows:

Motion to Strike Costs is DENIED.

Motion to Tax Costs is DENIED.

Moving party is to give notice.

IT IS SO ORDERED.

Dated: August 11, 2022 __________________________________ Upinder S. Kalra

Judge of the Superior Court