Case Number: BC635468 Hearing Date: April 24, 2018 Dept: 51

Background

Plaintiff Stuart Kaplan sues defendants Erik Grochowiak and Danies Wong over a transaction for an expensive watch gone awry.

Kaplan alleges that he entered into an agreement with Grochowiak to repair and sell by a date certain a watch that Kaplan owned, or, if not sold by the date certain, return the watch to Kaplan. Kaplan revoked the authority he gave to Grochowiak, and Grochowiak failed to sell the watch by the date certain but refused to return the watch to Kaplan, instead purportedly selling the watch to Wong for an unknown sum. Grochowiak also failed to return other watches and accessories that Kaplan had entrusted to him.

On September 27, 2016, Kaplan filed a complaint, and on February 14, 2017, the operative first amended complaint for two counts of conversion, two counts of replevin, two counts of fraud, two counts of negligent misrepresentation, three counts of breach of contract, breach of fiduciary duty, aiding and abetting breach of fiduciary duty, and unfair competition.

On April 14, 2017, Grochowiak and his company LCCG Enterprises, LLC dba It’s Only Time filed a cross-complaint against Kaplan for a sole cause of action for defamation based on an allegation that throughout September 2016 (2015 appears to be a typographical error) to the present, Kaplan orally told watch industry personnel that Grochowiak was selling a “stolen” watch. CC ¶¶ 18, 21.

On July 12, 2017, the Court granted Kaplan’s anti-SLAPP motion to the cross-complaint. On September 15, 2017, Grochowiak filed a notice of appeal. On November 6, 2017, the Court granted (as modified) Kaplan’s motion for attorneys’ fees on the anti-SLAPP motion. On January 19, 2018, Grochowiak voluntarily dismissed the appeal.

On March 12, 2018, Kaplan filed this opposed motion to recover a total of $8,110 in fees and costs incurred on appeal. (The calculation of $8,397.50 as stated in the notice of appeal appears to be in error.) In its reply brief, Kaplan requested that an additional $1,006.25 be awarded to prepare its reply. The Court considered the moving, opposition, and reply papers, and rules as follows.

Request for Judicial Notice

Kaplan’s request for judicial notice of the request for dismissal filed in the Court of Appeal (No. 12) is GRANTED. Evid. Code § 452(d). The balance is DENIED as irrelevant or superfluous.

Standard

The party claiming attorneys’ fees must establish entitlement to such fees and the reasonableness of the fees claimed. Civic Western Corporation v. Zila Industries, Inc. (1977) 66 Cal.App.3d 1, 16. “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[.]” CCP § 1021.

“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. Ibid.

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 (Serrano III). 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 (Serrano IV); see also 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.”)

Reasonable attorney fees should be based on an objective standard of reasonableness, i.e., the market value of services rendered, not on some notion of cost incurred. PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1090. The value of legal services performed in a case is a matter in which the trial court has its own expertise. Id. at 1096. The trial court may make its own determination of the value of the services contrary to, or without the necessity for, expert testimony. Ibid. The trial court makes its determination after consideration of a number of factors, including the nature of the litigation, its difficulty, the amount involved, the skill required in its handling, the skill employed, the attention given, the success or failure, and other circumstances in the case. Ibid.

Analysis

Kaplan seeks $6,325 incurred on the appeal (11 hours at $575 per hour) plus $1,725 for this fees motion (3 hours at $575 per hour) and $60 in costs on this motion. See Ketchum v. Moses (2001) 24 Cal.4th 1122, 1141 (stating, “fees incurred in enforcing the right to mandatory fees under” the anti-SLAPP statute are recoverable.) In reply, Kaplan requests that an additional $1,006.25 (1.75 hours at $575 per hour) for reviewing the opposition and preparing the reply.
There is no dispute that Kaplan is entitled to recover his reasonable fees and costs, or that his costs (the $60 filing fee) are reasonable. See Rosenaur v. Scherer (2001) 88 Cal.App.4th 260, 287 (stating, “The appellate courts have construed section 425.16, subdivision (c), to include an attorney fees award on appeal.”) Instead, Grochowiak argues that the claimed hourly rates are unjustified and that number of hours claimed is unreasonable.

Reasonableness

In its November 6, 2017 order, the Court determined that counsel’s $575 hourly rate for this matter was unsupported and reduced it to $475. Here, counsel again claims an hourly rate of $575.

The Court sees no reason to deviate from its prior order reducing the rate to $475. In both his declarations in support of the prior fees motion and this one, counsel states that he was awarded $575 following a 22-day trial in San Mateo County. The Court rejected that support there and does so again here: the appeal here did not involve a trial, and counsel has not disclosed all of the rates at which he was awarded fees such that the Court cannot determine whether $575 was an outlier or average.

Counsel states that attorney Linzer was awarded sanctions at $650 per hour in this action. Gutierrez Decl. ¶ 11. Counsel does not state any facts suggesting that the procedure on which Linzer was awarded sanctions is analogous to the appeal. Therefore, this evidence is unpersuasive.

Moreover, the appeal was dismissed: Kaplan’s attorney had no occasion to address the merits. Counsel’s description of tasks establishes that counsel’s work involved less skill-dependent tasks such as reviewing the filings, communicating with appellant’s counsel, and researching routine procedural issues.

Accordingly, the factors support $475 as the reasonable hourly rate for counsel’s work on the appeal.

The Court agrees that the claimed number of hours is reasonable. Although the appeal was voluntarily dismissed before any briefs were filed, the appeal was pending for about four months. It is reasonable for an attorney to spend time discussing the implications of an appeal with his client at an early stage in the process. In addition, investigating the merits related to the appeal, preparing for a hearing on the scope of the automatic stay, and corresponding with opposing counsel are all typical tasks that an attorney would perform in connection with an appeal at the outset. Moreover, counsel’s descriptions of tasks and the times allotted to each task do not appear excessive: most are in the range of an hour to an hour and a half, if not less.

Accordingly, the Court finds $5,225 (11 hours at $475 per hour) to be reasonable to compensate Kaplan’s counsel for work performed on the appeal and $2,256.25 (4.75 hours at $475 per hour) to be reasonable to compensate Kaplan’s counsel for work performed on this motion.

Conclusion

The motion is GRANTED as to fees and costs on this appeal and this fees motion. Specifically, the Court awards $5,225 (fees on appeal) plus $2,256.25 (fees on fees motion) plus $60 (filing fee) for a total of $7,541.25. Kaplan to give notice.