Judge: Yolanda Orozco, Case: 21STCV28586, Date: 2023-01-06 Tentative Ruling
Case Number: 21STCV28586 Hearing Date: January 6, 2023 Dept: 31
MOTION FOR ATTORNEY’S FEES AND COSTS
tentative ruling
Plaintiff’s Motion for Attorney’s Fees and Costs is GRANTED,
in the amount of $75,972.17.
Background
On August 3, 2021, Plaintiff Jerrold A. Fine (“Plaintiff”) filed a complaint against Defendant Teri Lee Bernardi, Green Grown Bulk, Inc., and Does 1 through 10 for (1) breach of written contract, (2) money lent, (3) money had and received, (4) open book account, and (5) account stated. Plaintiff alleges Defendants borrowed money from Plaintiff and failed to repay him.
GGB was served with a copy of the summons and complaint on September 1, 2021. (Fine Decl. ¶ 14, Ex. 6.) Default was entered against GGB on October 13, 2021. (Fine Decl. ¶ 15, Ex. 7.)
On November 14, 2022, Summary Judgment was granted in favor of Plaintiff and against Defendant Terri Lee Barnardi.
On November 17, 2022. Defendant Terri Bernardi filed an Appeal. The Appeal was dismissed on December 30, 2022.
On December 16, 2022, Plaintiff’s request for Default Judgemnt was DENIED because Plaintiff failed to submit an application for separate judgment.
On November 23, 2022, Defendant Bernardi filed a
Substitution of Attorney form, substituting and representing herself.
On November 28, 2022, Plaintiff filed a Motion for Attorney’s Fees. Berndardi was served by email both as an individual defendant and as GGB’s agent for service of process per the parties stipulation. (See Soffer Supp. Decl. ¶ 5, Ex. 7.)
The motion remains
unopposed.
Legal Standard
A prevailing party is entitled to recover costs, including attorneys’ fees, as a matter of right. (Code Civ. Proc., §§ 1032(a)(4), 1032(b), 1033.5.) Attorney’s fees may be recovered as costs when authorized by contract, statute, or law. (Code Civ. Proc., § 1033.5(a)(10).) 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); Code Civ. Proc., §§ 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.)¿
Discussion
The contract/promissory note at issue contained an attorney’s fee provision. Plaintiff now moves for attorney’s fees on the basis that the Motion for Summary Judgment was granted in favor of Plaintiff and against Defendant Teri Lee Bernardi (“Bernardi”). The Court notes that Default Judgment against Defendant Green Grown Bulk Inc. (“GGB) was denied. (Min. Or. 12/16/22.) However, as the prevailing party against Defendant Bernardi, Plaintiff is entitled to attorney’s fees.
The contract (the “Promissory Note”) states: “Borrower agrees to pay any and all legal costs, including attorney’s fees, incurred in the collection of this note, whether or not any legal action is instituted.” (Fine Decl. Ex. 1.) The Promissory Note was modified by the Loan Agreement which gave Defendants an additional cash advance. (Fine Decl. ¶ 5, Ex. 2.) Defendant Bernardi breached the Loan Agreement. (Id. Ex. 9.) On August 03, 2021, Plaintiff in pro se, filed a Complaint that included a prayer for attorney’s fees. (Fine Decl. ¶ 10, Ex. 3.) On November 14, 2022, Summary Judgment was granted in favor of Plaintiff and against Defendant Bernardi.
Hourly Rate
The Court begins its inquiry “with the ‘lodestar,’ i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate.” (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095.) From there, the “lodestar figure may then be adjusted [according to a multiplier enhancement] 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.” (Id.) Relevant multiplier factors 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.” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132.)
Plaintiff’s counsel’s charged Plaintiff an hourly rate of $500.00 per hour. (Soffer Decl. ¶ 27) Plaintiff’s counsel, Benjamin E. Soffer, has 27 years of experience as a civil litigator, with 13 years spent as a partner at Perkins Colie LLP. (Id.) Prior to leaving Perkins Colie LLP in 2015, Mr. Soffer’s billing rate was in excess of $600 but less than $650 per hour. (Id.) Mr. Soffer states that other attorneys in the Los Angeles area with a similar level of expertise and law firm pedigree charge more than $650 per hour. (Id.)
As the motion is unopposed, the Court agrees that a $500.00 per hour billing rate is reasonable based on the expertise of Plaintiff’s counsel. (See Graciano v. Robinson Ford Sales, Inc. (2006) 144 Cal.App.4th 140, 156 [trial court abused its discretion in reducing counsel's hourly rates where “unrebutted declarations established the prevailing rates in the region for attorneys with comparable skills and expertise”].) The billing rate of Mr. Soffer’s legal assistant is $195.00 per hour, which the Court also finds to be reasonable.
Aa review of Mr. Soffer’s billing records supports the
finding that Mr. Soffer did not bill for time spent on seeking default judgment
against GGB. Therefore, Plaintiff’s Motion does not seek fees for matters
pertaining to GGB.
Hours Billed
Mr. Soffer submitted his firm’s invoices attesting to hours and the items billed. Although Plaintiff does not provide the total number of hours spent on this matter, a review of Plaintiff’s invoices supports an estimation that 149.30 hours were spent on this matter as billed by Mr. Soffer and 4.7 hours billed by Mr. Soffer’s Legal assistant. (See Soffer Decl. Ex. 5.) The Court fines no reason to doubt that Plaintiff has incurred an excess of $74,283.50 in attorney’s fees in this case. (Id. ¶ 28.) Mr. Soffer’s billing records do not appear to bill for matters pertaining to GGB or the Motion for Default Judgment against GGB.
Accordingly, the Court awards Plaintiff $74,283.50 in attorney’s fees.
Costs
“Except as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding. (Code Civ. Proc., §1032(b).)
On November 18, 2022, Plaintiff filed a Memorandum of Costs seeking $1,688.67 in costs. (Soffer Decl. ¶ 25, Ex. 4.) A review of the Memorandum of Costs shows that the costs were reasonably incurred and allowable under section 1033.5 of the Code of Civil Procedure. Defendant has not challenged these costs.
Plaintiff’s Motion for Attorney’s Fees is GRANTED. The Court awards Plaintiff $75,972.17, consisting of $74,283.50 in attorney’s fees and $1,688.67 in costs.
Conclusion
Plaintiff’s Motion for Attorney’s Fees and Costs is GRANTED, in the amount of $75,972.17.
Plaintiff to give notice.