Judge William A. Crowfoot, Case Number: 21GDCV00218, Date: 2024-03-06 Tentative Ruling

Judge: William A. Crowfoot, Case: 21GDCV00218, Date: 2024-03-06 Tentative Ruling

On December 18, 2023, plaintiffs Eric A. Ferraco and Andrea V. Ferraco, as Co-Trustees of the Ferraco Family Trust dated 4/19/2000 (“Ferraco Trust”), filed this motion for attorneys’ fees. Ferraco Trust seeks an award of attorneys’ fees in the amount of $715,849.50 and total expenses in the amount of $53,380.84 (including some that were also claimed in the Memorandum of Costs filed on November 2, 2023) against Defendant Human Designs Prosthetic and Orthotic Laboratory, Inc. (“Human Designs”). The motion is unopposed.

Unless they are specifically provided for by statute (e.g., Code Civ. Proc. §§ 1032, et seq.), an award of attorneys’ fees is left to the agreement of the parties. (Code Civ. Proc. § 1021.) The prevailing party on a contract, which specifically provides for attorney fees and costs incurred to enforce the agreement, is entitled to reasonable attorney fees in addition to other costs. (Civ. Code § 1717(a); CCP §§ 1032, 1033.5(a)(10)(A).) The court, upon notice and motion by a party, shall determine the prevailing party and shall fix, as an element of the costs of suit, the reasonable attorney fees. (Civ. Code § 1717(a), (b).)

“It is well established that the determination of what constitutes reasonable attorney fees is committed to the discretion of the trial court, whose decision cannot be reversed in the absence of an abuse of discretion.” (Melnyk v. Robledo (1976) 64 Cal.App.3d 618, 623-624.) 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.” (Graciano v. Robinson Ford Sales, Inc. (2006) 144 Cal.App.4th 140, 154.) 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. (See Serrano v. Priest (1977) 20 Cal.3d 25, 49 (discussing factors relevant to proper attorneys’ fees award).) The factors considered in determining the modification of the lodestar include “(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, and (4) the contingent nature of the fee award.” (Mountjoy v. Bank of Am. (2016) 245 Cal.App.4th 266, 271.) In challenging attorneys’ fees as excessive because too many hours of work are claimed, it is the burden of the challenging party to point to the specific items challenged, with a sufficient argument and citations to the evidence. (Premier Medical Management Systems, Inc. v. California Ins. Guaranty Assoc. (2008) 163 Cal.App.4th 550, 564.) General arguments that fees claimed are excessive, duplicative, or unrelated do not suffice. (Ibid.)

The prevailing party who seeks fees and costs bears the burden of establishing entitlement to an award and documenting the appropriate hours expended and hourly rates. (Cristian Research v. Alnor (2008) 165 Cal.App.4th 1315, 1320.) To that end the Court may require a party to produce records sufficient to provide a proper basis for determining how much time was spent on particular claims. (Ibid.) The evidence should allow the Court to consider whether the case was overstaffed, how much time attorneys spent on particular claims, and whether the hours were reasonably expended. (Id.) The Court has discretion to award fees based on the attorney’s declaration describing the work they have done and based on the judge’s own view of the number of hours reasonably spent. (Syers Props. III, Inc. v. Rankin (2014) 226 Cal.App.4th 691, 698.)

Ferraco Trust’s entitlement to attorneys’ fees is based on Paragraph 31 of the leases underlying the action, which entitle the prevailing party to be “fully reimburse[d] [for] all attorneys’ fees reasonably incurred.” (Exhibits 1 & 2) Paragraph 31 provides in pertinent part: “If any Party brings an action or proceeding involving the Premises whether founded in tort, contract or equity, or to declare rights hereunder, the Prevailing Party (as hereafter defined) in any such proceeding, action, or appeal thereon, shall be entitled to reasonable attorneys’ fees. * * * The attorneys’ fees award shall not be computed in accordance with any court fee schedule, but shall be such as to fully reimburse all attorneys’ fees reasonably incurred.”

Ferraco Trust argues that its request for fees is reasonable and submits the declaration Eric S. Engel to describe the work performed by the attorneys, paralegals and professional staff of Conkle, Kremer & Engel, PLC (“CK&E”). Mr. Engel authenticates two spreadsheets which contain time entries and states that nearly all the fees were incurred through work by himself, Chelsea Bernard, Alex Engel, and Bill Ye. Mr. Engel states that his hourly rate during this litigation began at $525 and increased to $550 in 2022. (Engels Decl., ¶ 19.) Although Mr. Engel’s standard rate in 2023 was increased to $575, this increase was not applied to this matter. Mr. Engel has been licensed to practice law since 1982 and his practice focuses on complex business litigation matters. (Engels Decl., ¶ 19.) Chelsea Bernard performed a considerable amount of work as a law clerk beginning in June 2020 at an hourly rate of $200 and her rate increased to $325 after she was admitted to the California bar in May 2022. (Engel Decl. ¶ 20.) Alex Engel and Bill Ye are paralegals who billed at a rate of $150, which is CK&E’s standard paralegal rate, and provided paralegal support by assisting with document production, exhibits, damages analyses, deposition support, and information organization. (Engel Decl. ¶¶ 21-22.) Based on the cases cited by counsel as well as the Court’s experience, the Court finds that these rates are commensurate with (if not lower than) the prevailing rates in California and the Los Angeles area. (Motion, p. 17.) The Court has also reviewed Exhibit A attached to Mr. Engel’s declaration, which is a spreadsheet which sorts CK&E’s billing records into different categories, from pre-trial investigation through post-trial activity. Exhibit B is a chronological account of the billing entries sent by CK&E to Ferraco Trust. Based on these spreadsheets, which the Court will not summarize in this minute order for purposes of judicial efficiency, as well as the lack of any opposition from Human Designs, the Court finds that the amount of time spent on spent on the matter was reasonable. Accordingly, the request for fees is GRANTED in its entirety.

As for Ferraco Trust’s request for costs as the prevailing party pursuant to Code of Civil Procedure section 1032, Ferraco Trust filed a memorandum of costs and included additional items in this motion in Exhibit C. “‘If the items appearing in a cost bill appear to be proper charges, the burden is on the party seeking to tax costs to show that they were not reasonable or necessary.’” (Nelson v. Anderson (1999) 72 Cal.App.4th 111, 131.) The Court notes that no motion to tax costs is on file and the charges on the memorandum of costs appear appropriate. However, Ferraco Trust lists additional items in Exhibit C which were not included in the memorandum of costs, some of which are impermissible. For example, Ferraco Trust is not entitled to costs for photocopying and postage; therefore, the request for fees incurred for document reproduction, postage, and accessing documents online are not allowed. (See Code Civ. Proc., § 1033.5(b)(3); Ripley v. Pappadopoulos (1994) 23 Cal.App.4th 1616, 1627-28.) Additionally, the only travel expenses authorized by Code of Civil Procedure section 1033.5 are those to attend depositions. (Code Civ. Proc. § 1033.5 (a)(3); Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 775-776.) Routine expenses for local travel not related to depositions, including parking fees, mileage, and cab fare, by attorneys or other firm employees are not reasonably necessary to the conduct of litigation. (Id.) Therefore, Ferraco Trust cannot recover $80.37 for local travel and parking charges to attend a final status conference. A charge of $11.31 for TollFreeConferenceCall.com will also not be allowed because it does not appear to be reasonably necessary to the conduct of litigation.

Accordingly, the Court awards $50,787.64 in costs as claimed on Ferraco Trust’s memorandum of costs. Pursuant to Code of Civil Procedure section 1033.5(c)(4) the Court exercises its discretion to award $2,000 for mediation fees, $15.00 for a LACourtConnect fee to appear at a case management conference telephonically, and $14.63 for the filing fee associated with the proposed statement of decision, as listed in Exhibit C to the Engels Declaration, for a total cost award of $52,817.27.

In conclusion, Ferraco Trust’s motion for attorneys’ fees and costs is GRANTED. Ferraco Trust is awarded its reasonable attorneys’ fees in the amount of $715,849.50 and its costs in the amount of $52,817.27.

William A. Crowfoot

Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the Court at ALHDEPT3@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.