Judge: Yolanda Orozco, Case: 20STCV01726, Date: 2022-10-20 Tentative Ruling
Counsel may submit on the tentative ruling by emailing Dept. 31 before 8:30 the morning of the hearing. The email address is smcdept31@lacourt.org. Please do not call the court to submit on the tentative. Please do not submit to the tentative ruling on behalf of the opposing party. Please do not e-mail the Court if you plan to appear and argue.
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**Tentative rulings on Motions for Summary Judgment will only be available for review in the courtroom on the day of the hearing.
Case Number: 20STCV01726 Hearing Date: October 20, 2022 Dept: 31
MOTION
FOR ATTORNEY FEES IS GRANTED, IN PART
BackgrounD
On January 14, 2020, Plaintiff Shahin Dardashty filed the instant action against Defendant Carlos Hernandez and Does 1 through 10. The Complaint asserts causes of action for:
1) Disgorgement
of Compensation Paid to Unlicensed Contractor under California Business &
Professions Code § 7031;
2) Breach
of Contract;
3) Breach
of Implied Warranty and Implied Covenant of to Perform Work in a Good and
Competent Manner;
4) Negligence;
5) Breach
of Implied Covenant of Good Faith and Fair Dealing;
6) Treble
Damages, Attorney’s Fees, and Costs under California Code of Civil Procedure section
1029.8; and
7) Fraud
under California Business & Professions Code section 7160.
On April 2, 2020, Defendant filed the Cross-Complaint. The Cross-Complaint asserts causes of action for:
1) Breach
of Contract;
2) Fraud;
3) Quantum
Meruit; and
4) Unjust Enrichment.
On June 16, 2020, Defendant dismissed the Cross-Complaint without prejudice.
Judgment was entered in favor of Plaintiff on June 21, 2022.
A Memorandum of Costs was filed on July 11, 2022.
On August 26, 2022,
Plaintiff filed a Motion for Attorney’s Fees. No opposing papers have been
filed.
Legal Standard
In general, under CCP § 1021
“Except as attorney’s fees are
specifically provided for by statute, the measure and mode of compensation of
attorneys and counselors at law is left to the agreement, express or implied,
of the parties...”
Under CCP section 1032(b), “a prevailing party is entitled
as a matter of right to recover costs in any action or proceeding.”
CCP section 1033.5 (a) provides that an allowable cost under §1032 includes:
“(10)
Attorney’s fees, when authorized by any of the following:
(A) Contract.
(B) Statute.
(C) Law.”
The party seeking fees bears the burden of establishing entitlement to an award and of documenting the appropriate hours spent and hourly rates, and the court may require that party to produce records sufficient to provide a proper basis for that determination. (Computer Xpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1020.)
An award of fees under this
section is reviewed for abuse of discretion, and the trial court’s
determination “will not be disturbed unless the appellate court is convinced
that it is clearly wrong.” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132.) The
trial court’s determination of the amount of a fee award will be upheld on
appeal if supported by substantial evidence. (Macia v. Hartwell (1997)
55 Cal.App.4th 669, 676.)
Discussion
Plaintiff request $102,708.00 in attorney’s fees and $8,037.12 in costs. Plaintiff also requests that the Judgment be amended to reflect the cost and fees stated above.
As the prevailing party, Plaintiff asserts they are entitled to attorney’s fees under California Business and Professions Code section 7160 and under the Code of Civil Procedure section 1029.8 subdivision (a).
Section 7160 states:
“Any person who is induced to contract for a work of improvement, including but not limited to a home improvement, in reliance on false or fraudulent representations or false statements knowingly made, may sue and recover from such contractor or solicitor a penalty of five hundred dollars ($500), plus reasonable attorney’s fees, in addition to any damages sustained by him by reason of such statements or representations made by the contractor or solicitor.”
(Bus. & Prof. Code, § 7160.)
Section 1029.8, in the relevant part, states:
“Any unlicensed person who causes injury or damage to another person as a result of providing goods or performing services for which a license is required . . . shall be liable to the injured person for treble the amount of damages assessed in a civil action in any court having proper jurisdiction. The court may, in its discretion, award all costs and attorney’s fees to the injured person if that person prevails in the action.”
(Code of Civ. Proc., § 1029.8 subd. (a).)
The Court agrees Plaintiff is entitled to attorney’s fees and costs.
“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.) In exercising its discretion, the court should consider a number of factors, including the nature of the litigation, its difficulty, the amount involved, the skill required in handling the matter, the attention given, the success or failure, and the resulting judgment. (Id.)
In determining
the proper amount of fees to award, courts use the lodestar method. The
lodestar figure is calculated by multiplying the total number of reasonable
hours expended by the reasonable hourly rate. “Fundamental to its determination
. . . is a careful compilation of the time spent and reasonable hourly
compensation of each attorney . . . in the presentation of the case.”
(Serrano v. Priest (1977) 20 Cal.3d 25, 48.) A reasonable hourly
rate must reflect the skill and experience of the attorney. (Id. at 49.)
“Prevailing parties are compensated for hours reasonably spent on fee-related
issues. 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; Weber v.
Langholz (1995) 39 Cal.App.4th 1578, 1587 [“The trial court could make its
own evaluation of the reasonable worth of the work done in light of the nature
of the case, and of the credibility of counsel’s declaration unsubstantiated by
time records and billing statements.”].)
Hourly Rate
The Hourly rate of Gabriel M. Courey was $295.00 per hour in 2019 and 2020, $350.00 in 2021, and increased to $450.00 in 2022. (Coury Decl. ¶ 22; Coulson Decl. ¶ 5.). Mr. Courey is also a partner at Epps & Coulson, LLP. (Coulson Decl. ¶ 5.) Dawn M. Coulson is a managing partner at Epps & Coulson, LLP and her hourly rate is $610.00 per hour since January of 2021. (Coulson Decl. ¶ 4; Courey Decl. ¶ 23.). Before 2021, Coulson’s hourly rate was $595.00 per hour. (Id.)
The hourly rate for the firm’s law clerk, Melissa Summers-Day was $235.00 per hour in 2021 and $225.00 per hour before 2021. (Coulson Decl. ¶ 7; Courey Decl. ¶ 25.) The hourly rate for the firm’s paralegal throughout this action has been $195.00 per hour. (Coulson Decl. ¶ 5; Courey Decl. ¶ 24.)
“The reasonable hourly rate is that prevailing in the community for similar work.”¿ (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095.) “The experienced trial judge is the best judge of the value of professional services rendered in [her] court.” (Id.)¿
The Court finds that the hourly rates of the Plaintiff’s counsel, along with that of the paralegals and law clerk who worked on this case are reasonable.
Hours Billed
Plaintiff’s counsel sept 305.1 hours litigating this case, inclusive of 253.8 spent by attorneys, 32.40 hours spent by paralegals, and 18.90 hours spent by a law clerk. (Courtney Decl. ¶ 19.) Plaintiff has also included an itemized billing statement. (Id. Ex. 10.)
Gabriel M. Courey billed a total of 243.5 hours, while Coulson billed 10.3 hours. (Courey Decl. ¶ 18, Table 1.) Paralegals billed a total of 32.4 hours, and the law clerk billed a total of 18.9 hours, totaling 305.1 hours. (Courey Decl. Ex. 10.)
A prevailing party’s verified billing invoices are prima facie evidence that the costs, expenses, and services listed were necessarily incurred. (Hadley v.¿Krepel (1985) 167 Cal.App.3d 677, 682.) A declaration attesting to the accuracy of the fee bill is presumed credible absent clear error. (Horsford v. Bd. of Trsts. of Cal. St. Univ. (2005) 132 Cal. App. 4th 359, 396). Once the moving party presents an itemized fee bill, the burden shifts to the opposing party to make specific objections. (McGrath v. County of Nevada (1995) 67 F.3d 248, 255 [fee opponent must provide specific evidence to challenge the reasonableness of bill].)
Defendant has not filed opposing papers challenging the accuracy of Plaintiff’s billing records or the time spent on specific tasks. Moreover, after reviewing the billing statement, the Court finds the hours billed by Plaintiff’s counsel, in this case, to be reasonable.
Costs
Plaintiff also incurred $8,037.12 in costs. (Courey Decl. ¶ 27.) Plaintiff’s Memorandum of Costs consists of $1,827.73 in filing and motion fees and $314.38 in fees for electronic filing or service. (Courey Decl. ¶ 28.)
In addition, Plaintiff asserts they incurred $5,895.01 in costs not covered by the Memorandum of Costs. These costs consist of: (a) legal research charges of $2,502.24, (b) administration fees of $2,849.29, (c) and $546.48 in charges relating to hearing reservation fees, GSO and attorney service charges for delivering courtesy copies to the Court, and remote appearance fees. (Courey Decl. ¶ 29.) The legal research charges arise from conducting legal research on Lexis. (Id.)
The administrative fee represents 3.5% of the fees billed to Plaintiff each month and is a standard charge normally billed to each of the firm’s clients. (Coulson Decl. ¶ 10; Courey Decl. ¶ 29.) The administration fee is charged by the firm to cover unreimbursed items incurred by the firm in-house and for which the firm does not separately capture and bill to the client, including, without limitation, regular postage costs, in-house copying, and facsimiles, telephone charges, supplies, etc. (Coulson Decl. ¶ 10; Courey Decl. ¶ 29.)
Except as to the $546.48 in charges related to hearing reservations, GSO and attorney service charges for delivering service copes, and remote appearance fees, the Court declines to award costs for legal research and administrative fees. The attorney fees should include overhead costs such as the administrative fees and legal research costs Plaintiff seeks to recoup. (See Guinn v. Dotson (1994) 23 Cal.App.4th 262, 268.)
The administrative fee also seeks to recoup costs such as regular postage costs, in-chouse copying, and facsimiles, telephone charges, supplies, etc. (Courey Decl. ¶ 29.) Code of Civil Procedure section 1033.5 subdivision (b) states that unless expressly authorized by law “[p]ostage, telephone, and photocopying charges, except for exhibits” are not allowable as costs.” Moreover, the cost should “be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.” (Code of Civ. Proc., § 1033.5 subd. (c)(1.).) Lastly, there are no billing invoices to allow the court the evaluate the necessity of the additional charges sought.
Therefore, the Court finds that the legal research and administrative fees are overhead costs that should be included in Plaintiff’s counsel’s hourly billing rate. The Court awards $2,688.59 in costs comprised of $2,142.11 costs in the Memorandum of Costs and $546.48 in expenses related to hearing reservations, GSO and attorney service charges.
Lodestar
For 305.10 hours of work, Plaintiff seeks $102,706.00 in attorney’s fees. In addition, the Court awards $2,688.59 in costs.
The motion is
GRANTED.
Plaintiff’s Motion for Attorney’s Fees and Cost is GRANTED. The Court awards $102,706.00 in attorney’s fees and $2,688.59 in costs.
The Judgment will be amended to reflect the above.
Moving party to give
notice