Judge: Virginia Keeny, Case: LC102860, Date: 2023-05-26 Tentative Ruling

Case Number: LC102860    Hearing Date: May 26, 2023    Dept: W

M. SAEID NOSRATI V. SHEILA CRONEN, ET AL.

motion for attorneys’ fees

Date of Hearing:        May 26, 2023                                    Trial Date:       N/A

Department:              W                                                        Case No.:        LC102860

Moving Party:            Plaintiffs M. Saeid Nosrati and Nooshin Haroonian

Responding Party:     Defendant Manuel Gonzalez

BACKGROUND

This action involves real property in Tarzana, CA (“subject property”) which plaintiff M. Saeid Nosrati (“Plaintiff” or Dr. Nosrati) purchased in 2013 from defendants Sheila and Manual Gonzalez (“Sellers”). After the purchase, Plaintiff discovered numerous defects, which he claims Sellers failed to disclose or misrepresented on the Seller’s Property Questionnaire (“SPQ”) and Transfer Disclosure Statement (“TDS”). On April 16, 2015, plaintiff initiated the instant action against the sellers, their son, Phillip Gonzalez (“Phillip”), Dream Team Real Estate Consultants, Candace Lazan, Keller Williams Realty, and Pillar II Post Home Inspections (“Pillar”).

Plaintiff filed a First Amended Complaint on September 15, 2015. On April 14, 2016, Plaintiff filed the Second-Amended Complaint (“SAC”). After demurrer to the SAC, Plaintiff filed a Third Amended Complaint (“3AC”) on September 11, 2018, alleging causes of action for: Fraud, Intentional Misrepresentation, Negligent Misrepresentation, Breach of Contract, Violations of Civil Code section 1102.6, Negligence, Conversion and Trespass. Plaintiff sought rescission as a remedy in the 3AC. On April 2, 2019, defendants filed a verified acceptance of the rescission demand.

On July 15, 2019, defendants Sheila and Manuel Gonzalez filed a motion to enforce plaintiff’s election of rescission as a remedy and to dismiss all other claims as moot. On August 6, 2019 the court granted the requested relief, ordering rescission, but set the matter for a bench trial on any remaining equitable adjustments pursuant to Civil Code 1692.

Subsequently, Dream Team was dismissed pursuant to a settlement agreement. Keller Williams and Candace Lazan were dismissed on June 18, 2020. Pillar II Post was dismissed without prejudice on November 20, 2020.

This matter came on for trial on December 9, 2020, February 8, 19 and 23, 2021. The court allowed the parties to submit final trial briefs as their closing arguments and took the matter under submission on March 26, 2021.

On April 9, 2021, the court issued the Statement of Decision. Plaintiffs appealed. The Court of Appeals reversed the judgment in this action with directions, and remittitur has now been issued.

[Tentative] Ruling

Plaintiffs’ Motion for Attorney Fees is GRANTED.

DISCUSSION

Plaintiffs M. Saeid Nosrati and Nooshin Haroonian move the court awarding their attorney fees and non-statutory costs pursuant to Sections 1021 and 1033.5 of the California Code of Civil Procedure and Section 1717 of the California Civil Code.

As a general rule, each party to litigation must bear its own attorney fees, unless otherwise provided by statute or contract. (CCP §1021.) However, Civil Code section 1717, subdivision (a) provides in pertinent part: “In any action on a contract, where the contract specifically provides that attorney's fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney's fees in addition to other costs.” Contractual attorney's fees must ordinarily be sought by noticed motion, unless the parties stipulate otherwise. (See CCP § 1033.5(c)(5); Cal. Rules of Court, rule 3.1702(a).) A motion is necessary to determine both entitlement to, and the amount of, any fees. (See Cal. Rules of Court, rule 3.1702(a) [motion procedure applies when court determines entitlement to fees, amount of fees, or both]; P R Burke Corp. v Victor Valley Wastewater Reclamation Auth. (2002) 98 Cal.App.4th 1047, 1052.)

Plaintiffs seek $86,520.00 in attorney fees and $1,551.93 in costs, which includes:

Plaintiffs’ Appeal: $42,060 in attorney fees and $937.33 in costs

Defendant’s Appeal $28,740 in attorney fees and $412.20 in costs

Post-Judgment Trial Court: $15,720 in attorney fees and $202.40 in costs

Defendants do not oppose an attorney fee award of $75,149.53 for both appeals. However, Defendants contend the request for an additional $15,922.40 for fees and costs for purported “other Post Trial Proceedings’ is totally unwarranted and should not be allowed in any amount whatsoever. Defendants note Plaintiffs failed and refused all efforts to comply with the court’s Judgement by surrendering possession of the property, even after they received the full amount of the payment required by the Judgement.

Plaintiffs contend the ‘other post-trial proceedings’ includes time spent coordinating with Defense counsel and the escrow agent; drafting, reviewing and preparing escrow instructions; making arrangements for the appraisal requested by Defendants; communicating with the escrow agent; and discussing, drafting and exchanging mutual proposed satisfactions of judgment to be held in trust by the attorneys. In addition, time was spent drafting a motion to fix a bond amount; telephone conferences with Defense counsel regarding the Defendant’s request to set up a blocked account and deposit money in lieu of posting a bond for Defendant’s appeal; coordinating with Defense counsel and Banc of California regarding the blocked account; filing responses to 3 ex parte applications brought by Defendants for contempt; drafting the proposed amended judgment requested by the Court; and drafting this motion for attorney fees and costs. (Hartley Decl., Exh. C.)

The court finds the ‘other post-trial proceedings’ fees reasonable. “Generally, parties ‘who qualify for a fee should recover compensation for “all the hours reasonably spent ....” ’ (Roth v. Plikaytis (2017) 15 Cal.App.5th 283, 290, 222 Cal.Rptr.3d 850; see Ketchum, supra, 24 Cal.4th at p. 1133, 104 Cal.Rptr.2d 377, 17 P.3d 735 [California law requires that attorney fee awards be “fully compensatory”].) This includes work on unsuccessful arguments.” (State Farm General Insurance Company v. Lara (2021) 71 Cal.App.5th 197, 218.) So whether or not Plaintiffs were successful in opposing the ex parte applications, the court can consider the number of hours reasonably expended multiplied by the reasonable hourly rate. (Graciano v. Robinson Ford Sales, Inc. (2006) 144 Cal.App.4th 140, 154.) Upon review of Exhibit C, the court finds the roughly 52.4 hours expended on ‘other post-trial proceedings’ reasonable. The court further finds counsel’s hourly rate of $300 reasonable.

Accordingly, Plaintiffs’ Motion for Attorney Fees is GRANTED.