Westerlay Orchids Inc vs Minerco Resources Inc et al
Case No: 16CV04642
Hearing Date: Fri Jun 01, 2018 9:30

Nature of Proceedings: Motion: Attorney Fees

TENTATIVE RULING: The motion is granted in its entirety.

Background: This action arose pursuant to a contractual arrangement under which plaintiff Westerlay Orchids, LP, sold orchids on credit to Avanzar Sales & Distribution, LLC, who, in turn, sold the orchids at a markup to Walgreens. The sales from Westerlay to Avanzar were made pursuant to a Credit Application executed by Joseph Shippee, which contained a provision that “The undersigned understands and agrees to meet Westerlay Orchids, LP payment terms of net 30 days, to personally guarantee prompt and full payment of any and all of the obligations of the above named customer, and to pay reasonable attorney fees in the event of the default.” Avanzar did not pay Westerlay, and owed it $51,214.85.

Westerlay filed this action on October 13, 2016. Avanzar did not respond, and its default was entered. Trial proceeded against defendant Shippee, centered around the enforceability of the guarantee contained within the Credit Application. After court trial on February 5, 2018, the court found in favor of plaintiff Westerlay and against defendant Shippee, in the amount of $51,214,85. After preparation of Statement of Decision, Judgment was entered against defendant Shippee on April 4, 2018. Notice of entry of the judgment was filed and served on April 6, 2018.

Motion: Plaintiff now moves for an award of contractual attorneys’ fees in the amount of $30,559.50, against defendant Shippee. Plaintiff asserts that the motion is timely, in that a motion for fees must be filed within the time for filing a notice of appeal, which is 60 days from the service of the Notice of Entry of Judgment in this case. Notice of Entry was served on April 4, 2018, and this motion was filed on May 2, 2018, well within the 60-day period. Plaintiff asserts further that it is the prevailing party, entitled to fees under Civil Code section 1717, since it obtained a judgment against Shippee in the full amount sued on.

Plaintiff further contends that the fees it requests are reasonable. It provides detailed bills of its attorneys, redacted to preserve attorney-client and attorney work-product information. It asserts the fees are reasonable in amount and were necessarily incurred. Mr. Shippee engaged in aggressive litigation tactics, which increased the fees incurred. The request includes $977.50 in paralegal fees, which are recoverable. It further includes $3,670.78 in fees incurred before the complaint was filed, which are also recoverable because they were reasonably and necessarily incurred.

Fees were billed at varying rates, depending upon who was performing the work. Associate rates charged included rates from $225 to $335/hour. A contract attorney, licensed since 1988, billed 6.7 hours at $300/hour. A partner billed rates at $360 and $370 per hour, reflecting an annual increase in the hourly billing rate. A legal assistant’s work was billed at $200 and $205/hour. The firm performed 51.9 attorney and paralegal hours for which no charge was billed to the client, and for which no compensation is sought in the motion.

No opposition to the motion was filed.

ANALYSIS: The motion is granted in its entirety.

The contract between the parties entitled plaintiff to attorneys’ fees in the event of a default in payment. Such a default occurred, and plaintiff recovered the full amount due to it in this litigation, and is therefore the prevailing party entitled to fees pursuant to Civil Code section 1717. The Court further finds that the hourly rates charged were reasonable, and the hours expended by plaintiff’s attorneys in pursuit of this litigation were reasonably necessary. Indeed, in the Court’s experience, a $30,559.50 attorney fee bill for litigation which proceeded through trial, and included several law and motion hearings, is eminently reasonable.