Judge: Virginia Keeny, Case: 23STCV04585, Date: 2025-01-13 Tentative Ruling
All rulings shown here are TENTATIVE ONLY, and thus oral argument WILL be heard. All Counsel are still required to attend.
Case Number: 23STCV04585 Hearing Date: January 13, 2025 Dept: 45
CHRISTOPHER BIRT v. OPEN SKY REAL ESTATE, LLC,
et al.
MOTION FOR ATTORNEYS’ FEES
Date of Hearing: 1/13/25 Trial Date: None
Department: 45 Case No.: 23STCV04585
Moving
Party: Plaintiff Christopher
Birt
Responding Party: Defendant Open Sky Real Estate, LLC
BACKGROUND
This is a landlord-tenant action in which Plaintiff
Christopher Birt (“Plaintiff”) alleges that Defendant Open Sky Real Estate, LLC
(“Defendant”) demanded, accepted, and retained rent in excess of the maximum
rent allowed by law in violation of the Los Angeles Rent Stabilization
Ordinance.
On March 2, 2023, Plaintiff filed the Complaint against
Defendant and Does 1 through 10, inclusive, asserting causes of action for (1)
violation of Los Angeles Municipal Code sections 151.04 or 151.10, and (2)
declaratory relief.
On August 25, 2023, Plaintiff filed a motion for summary
judgment or, in the alternative, summary adjudication of his Complaint.
On August 29, 2024, the Court entered an order granting
Plaintiff’s motion for summary judgment (the “MSJ”) and denied the motion for
summary adjudication as moot.
On September 6, 2024, Defendant filed a motion for
reconsideration of the Court’s order granting the MSJ. On September 16, 2024, Plaintiff filed his
opposition to that reconsideration motion. No reply was filed in support of
that motion.
On October 1, 2024, the Court (1) denied Defendant’s
motion for reconsideration and (2) entered a judgment of $29,959.68 in favor of
Plaintiff. The Court stated, “[a]ttorney fees for the prevailing party, if any,
shall be considered and ruled upon via a noticed motion.” (Judgment, filed October 1, 2024, p. 1:27-28.)
On November 27, 2024, Plaintiff filed the instant motion
for attorneys’ fees.
On December 31, 2024, Defendant filed its opposition to
the attorney fee motion.
On January 6, 2025, Plaintiff filed his
reply.
[Tentative] RulingS
Plaintiff Christopher Birt’s Motion for
Attorneys’ Fees is GRANTED as follows. Plaintiff is awarded attorney’s fees of $66,795.
LEGAL STANDARD
A prevailing party is entitled to reasonable attorney
fees in addition to other costs. (Code
Civ. Proc., § 1033.5, subd. (a)(10).)
“Prevailing party” includes 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. (Code Civ. Proc., § 1032, subd. (a)(4).) In all other circumstances, the “prevailing
party” shall be as determined by the court.
(Ibid.)
The fee-setting inquiry ordinarily begins with the
“lodestar,” i.e., the number of hours reasonably expended multiplied by the
reasonable hourly rate. (PLCM Group, Inc. v. Drexler (2000) 22
Cal. 4th 1084, 1095.) “The lodestar
figure may then be adjusted, based on consideration of facts specific to the
case, in order to fix the fee at the fair market value for the legal services
provided.” (Gorman v. Tassajara Dev. Corp. (2008) 162 Cal.App.4th 770, 774.)
In determining whether to adjust the lodestar figure, the
court may consider 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 (2008) 162 Cal.App.4th 770, 774.)
The prevailing party bears the burden of proof and the
amount is left to the trial court’s sound discretion. (Christian Research Institute v. Alnor (2008) 165 Cal. App. 4th
1315, 1320.) A fee request that appears
unreasonably inflated is a special circumstance permitting the trial court to
reduce the award or deny one altogether.
(Serrano v. Unruh (1982) 32
Cal.3d 621, 635.)
DISCUSSION
Whether Attorneys’ Fees Are Authorized
Plaintiff moves for an attorney fee award of $113,895,
arguing that she is entitled to attorney fees under the Los Angeles
Municipal Code (“LAMC”).
In opposition, Defendant argues that the parties’ lease only awards attorneys’
fees of $500 maximum.
The Court notes that the parties do not dispute that Plaintiff is the
“prevailing party” within the meaning of their lease and the relevant LAMC
section.
“Code of Civil Procedure section 1033.5 provides, in subdivision
(a)(10), that attorney fees are ‘allowable as costs under Section 1032’ when
they are ‘authorized by’ either ‘Contract,’ ‘Statute,’ or ‘Law.’” (Santisas v. Goodin (1998) 17
Cal.4th 599, 606 (“Santisas”).)
If the Court were only looking at the parties’ contract and not the
LAMC, the Court would agree with Defendant that Plaintiff was only entitled to
an attorney fee award of $500 for the following reasons. But here, fees are
independently recoverable pursuant to statute. (Santisas, supra, 17
Cal.4th at p. 606.)
“Courts have interpreted the term ‘statute’ to include ‘municipal
ordinances.’ [Citation.]” (City of Santa Paula v. Narula (2003) 114
Cal.App.4th 485, 492 (“City of Santa Paula”).) “A city ordinance may authorize an award of
attorney fees.” (City of Santa Paula, supra, 114
Cal.App.4th at p. 493.)
Here, Plaintiff argues, and Defendant does not deny, that LAMC section
151.10(A) states that “if a tenant proves that a landlord charged rent in excess
of the amount permitted in violation of L.A.M.C. § 151.04, the landlord ‘“shall
be liable in a civil action to the person from whom such payment is
demanded, accepted or retained for damages of three times the amount by
which the payment or payments demanded, accepted or retained exceed the maximum
rent or maximum adjusted rent which could be lawfully demanded, accepted or retained
together with reasonable attorneys’ fees and costs as determined by the
court.”’” (Motion, p. 4:12-19
[original emphasis removed; underlining emphasis added].)
“The word ‘shall’ [in a statute] is usually deemed mandatory, unless a
mandatory construction would not be consistent with the legislative purpose
underlying the statute.’ [Citation.]” (Kim v. Euromotors
West/The Auto Gallery (2007) 149 Cal.App.4th 170, 178.)
Here, Defendant has not argued that the word “shall” in LAMC section
151.01(A) is inconsistent with the statute’s legislative purpose.
In addition, according to this Court’s order granting Plaintiff’s MSJ,
Plaintiff proved that Defendant charged him in excess of the amount permitted
in violation of the LAMC. Plaintiff moved for summary judgment, arguing that
Defendant’s “September 1, 2015, rent increase was illegal, along with all
subsequent rent increases.” (Order Re:
Ruling on Motion for Summary Judgment or in the Alternative, Summary
Adjudication, filed August 29, 2024 (“August 29 Order”), p. 5.) Plaintiff argued that, in the unlawful
detainer action Defendant brought against Plaintiff, the trial court had
already granted Plaintiff’s motion for summary judgment on the basis that the
September 2015 rent increase was illegal.
(August 29 Order, p. 7.) Plaintiff
further argued that since rent should have never been increased beyond
$1,118.48 per month, he had overpaid Defendant $9,986.56 from September 2015
through March 2022. (August 29 Order,
pp. 7-8.) Based on the evidence the
parties presented, the Court found that Plaintiff had “met his burden of
demonstrating that Defendant violated LAMC sections 151.04(A) and 151.06(D) by
unlawfully increasing rent for a unit for a second time in 12 months and
retaining more than the maximum rent of rent permitted.” (August 29 Order, p. 8.) With regard to the second cause of action for
declaratory relief, the Court found that Plaintiff had met his burden by
showing that it had “already been determined in the unlawful detainer action
that the rent should have never been increased beyond $1,118.48 per
month.” (August 29 Order, p. 10.)
For those reasons, the Court agrees with Plaintiff that LAMC section
151.01(A) requires Defendant to pay reasonable attorneys’ fees to Plaintiff in
this action.
Whether the Requested Lodestar is
Reasonable
Plaintiff moves for an attorney fee award of $113, 895. Plaintiff’s lodestar of $75,930 is based on
165.10 hours of work done by four (4) attorneys.
Attorney Jacob Woocher worked 156 hours in the matter and billed $450
per hour. (Motion, p. 6.) Attorney Woocher testifies that he graduated
from Yale with honors in 2016, and graduated from UCLA law school in 2021,
where he co-founded the Tenants Law Association and served on the Board of the
National Lawyers Guild chapter. (Woocher
Decl., ¶ 3.) He has served as lead
counsel and/or attorney of record for over 220 unlawful detainer cases, and out
of 164 cases he has handled from start to finish, he has been able to achieve a
resolution whereby his clients stay in their homes in 83 percent of the cases.
(Woocher Decl., ¶ 4.) Over the past year, from the beginning of 2024, he has
consistently been awarded the rate of $400 per hour for his work as an eviction
defense lawyer. (Woocher Decl., ¶ 6.) This case was taken on a fully contingent
basis with a substantial risk that his firm, Basta, Inc., a nonprofit entity, would
not recover anything. (Woocher Decl., ¶¶
7, 8.) Attorney Woocher has submitted
his billing records. (Woocher Decl., ¶ 13.)
Attorney Jeanette Alvarez-Webster worked 3.8 hours and billed $550 per
hour. Attorney Alvarez-Webster graduated from the University of West Los
Angeles, School of Law with honors, and received multiple academic
scholarships. (Motion, Alvarez-Webster
Decl., 4.) Alvarez-Webster has worked in
the overall field of landlord-tenant law, including as a law clerk at her
current firm, Basta, Inc., since July 2010.
(Alvarez-Webster Decl., ¶ 4.) In
recent years, she has undertaken more senior supervisory positions and is
considered a leader in the eviction defense field. (Alvarez-Webster Decl., ¶ 9.) As of January 2024, she was promoted to
Director of Operations for Basta, Inc.
(Alvarez-Webster Decl., ¶ 10.)
She testifies that as an attorney with significant experience in housing
rights (a defense in unlawful detainer cases and affirmative litigation) and
demonstrated excellence in her field, her time is billed at $550 per hour. (Alvarez-Webster Decl., ¶ 12.) Attorney Alvarez-Webster has also submitted
her billing records, showing how she spent 3.8 hours in this case. (Alvarez-Webster Decl., ¶ 18.)
Attorney Eric Post worked 1.4 hours and billed $650 per hour. He is a
Certified Appellate Specialist, Senior Tenants Rights Attorney, and the
Director of the Appeals Unit at Basta, Inc. (Motion, Post Decl., ¶ 2.) Attorney Post graduated from Howard
University School of Law with honors. (Post
Decl., ¶ 7.) In his role at Basta, Inc.,
he is regularly brought in to assist and review substantive motions drafted by
his colleagues since he has extensive experience and expertise related to the
substantive law and he is in a good position to set up the case to be
successful on appeal. (Post Decl., ¶ 3.) He was asked by Attorney Woocher to review
his finalized draft for the moving papers of the MSJ. (Post Decl., ¶ 4.) Attorney Post has submitted his billing
records to show the amount of time he spent on each task. (Post Decl., ¶ 5.)
Finally, Attorney Daniel J. Bramzon worked 3.9 hours and billed $700
per hour. Attorney Bramzon graduated
from Stanford University in 1997 and the University of Chicago Law School in
2000. (Motion, Bramzon Decl., ¶ 2.) He is currently the Executive Director of
Basta, Inc., and separately maintains a small private law practice mostly
focusing on representing both commercial and residential tenant clients. (Bramzon Decl., ¶ 2.) Since his last rate increase in January 2022,
he has been awarded a billing rate of $600 per hour in several cases. (Bramzon Decl., ¶ 14.) Attorney Bramzon has also submitted his
billing records to show how he spent 3.9 hours in this case. (Bramzon Decl., ¶ 20.)
In opposition, Defendant argues that the requested fees and hours are
unreasonable, but does not point to any specific task it claims was
unreasonable.
Upon reviewing the attorneys’ declarations and after considering their
experience, the Court finds the requested hours and billing rates are
reasonable except for the time that Attorney Woocher spent on the following
tasks.
·
12/15/2022 – Beginning to draft Motion for Summary
Judgment in eviction case based on illegal rent increase – 3.5 hours
·
12/16/2022 –
Further drafting of MSJ in eviction case, including calling client for
declaration – 0.9 hours
·
12/19/2022 –
Finalizing MSJ in eviction case – 2.2
hours
·
1/6/2023 – Reviewing
landlord’s opposition and drafting Reply for MSJ in eviction case – 2.0 hours
·
1/9/2023 – Hearing
on MSJ in eviction case – 2.5 hours
·
1/9/2023 – Email supervisors about the possibility
of filing a civil lawsuit based on MSJ victory in eviction case – 0.4 hours
·
2/3/2023 – Emails and phone call with supervisor
Kevin Hermansen (‘KPH’) about potential for filing affirmative civil suit based
on MSJ win in the eviction case (0.8); initial research into legal issues (2.5)
– 3.3 hours
·
2/6/2023 – Research into impact of ‘collateral
estoppel’ based on the MSJ prevailing in the eviction case (3.5); drafting memo
for supervisors about collateral estoppel and other issues in this potential
case (2.0) – 5.5 hours
(See Motion, Woocher Decl., ¶ 13.) The tasks from 12/15/2022 through 1/9/2023
were connected to the unlawful detainer, not this action. For the rest of the tasks, Attorney Woocher
and Basta, Inc. were only considering the possibility of a civil action based
on the summary judgment ruling in the unlawful detainer action. There is no evidence that they had even
spoken with Plaintiff regarding filing this lawsuit at that time. In addition, Plaintiff has not shown that the
relevant LAMC statute allows recovery of attorney’s fees for those
prelitigation activities.
Therefore, the Court shall subtract 20.3 hours at Attorney Woocher’s
billing rate of $450 per hour, which equals $9,135, from the requested lodestar
of $75,930.
Accordingly, the Court approves a lodestar of only $66,795.
Whether a Multiplier is Warranted
“A ‘multiplier’ is a method by which the trial court can adjust the
lodestar up or down.’ [Citation.]” (Kennedy Commission v. City of
Huntington Beach (2023) 91 Cal.App.5th 436, 466 (“Kennedy
Commission”).)
Here, Plaintiff seeks a multiplier of 1.5, based on the contingent
nature of the case and the fact that the fees will be awarded for the benefit
of a nonprofit organization (i.e., Basta, Inc.), not any specific attorneys
that worked on this matter. (Motion, p.
11:8-11; Woocher Decl., 8.)
“‘In determining whether to apply a multiplier to a lodestar amount, a
court should consider all relevant factors, including: “(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.” [Citation.] A court may rely on these factors to increase
or decrease the lodestar. [Citation.] Any one factor may be sufficient to apply a
positive or negative multiplier.’
[Citation.]” (Kennedy
Commission, supra, 91 Cal.App.5th at p. 467.) “‘The award of a multiplier is in the end a
discretionary matter largely left to the trial court.’ [Citation.]” (Ibid.)
The Court finds that this case presented straightforward issues
regarding whether Defendant had increased Plaintiff’s rent in violation of
LAMC. Moreover, the outcome of the MSJ
depended on collateral estoppel principles, which were neither novel nor
difficult especially given Plaintiff’s counsel’s expertise and experience with
landlord-tenant cases.
For those reasons, the request for a multiplier of 1.5 is denied.
CONCLUSION
The Motion for Attorneys’ Fees is GRANTED as follows.
Plaintiff is awarded attorney’s fees of $66,795.