BC469163

Moving Party: Plaintiff Wood Crafters by S&S Inc. dba S&S Hardwood Floors & Supplies

Resp. Party: Defendant Victor Sallas, individually and dba New West Hardwood Floors

Plaintiff’s motion for attorney’s fees is GRANTED in the total amount of $10,773.00.

BACKGROUND:

Plaintiff commenced this action as a limited civil case on 9/28/11 against defendant for common counts. Plaintiff alleged that defendant owed it $10,397.94 for goods and merchandise sold and delivered for which defendant promised to pay plaintiff.

Also on 9/28/11, defendant filed a cross-complaint against plaintiff for breach of express warranty, breach of implied warranty, manufacturing defect, negligence, and declaratory relief. Defendant alleged that the goods purchased, engineered flooring, was defective. This cross-complaint was dismissed on 6/5/13.

On 12/12/11, plaintiff filed a cross-complaint against defendant for total and partial equitable indemnity, contribution and repayment, and declaratory relief. Plaintiff dismissed this cross-complaint with prejudice on 5/6/13.

A court trial on the complaint commenced on 12/4/13. The Court found in favor of plaintiff and awarded judgment in the amount of $10,273.97. Judgment was entered on 3/11/14. The Court awarded plaintiff $10,273.97 in damages, $3,873.15 in pre-judgment interest, $440.00 in costs, and attorney’s fees in an amount to be determined.

When the court pronounced judgment, counsel indicated that they would try to stipulate as to the amount of attorney’s fees and thus avoid the need for this motion. Apparently the parties were unsuccessful at such a stipulation.

ANALYSIS:

Plaintiff seeks attorney’s fees in the amount of $17,091.00. The Court notes that, in the instant motion, plaintiff also requests costs and pre-judgment interest. The Court declines to address these requests because the Court has already determined, in the judgment entered after this motion was filed, that plaintiff is entitled to $3,873.15 in pre-judgment interest and $440.00 in costs.

Attorney fees are awardable in actions on a contract where the contract specifically provides for recovery of attorney fees. California Civil Code § 1717(a) states:

[i]n any action on a contract, where the contract specifically provides that attorney’s fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney’s fees in addition to other costs.

(Civ. Code., § 1717(a) [emphasis added].) Pursuant to California Civil Code § 1717(b)(1), the “party prevailing on the contract shall be the party who recovered a greater relief in the action on the contract.” (Civ. Code § 1717(b)(1).) “[T]he definition of ‘prevailing party’ in Civil Code section 1717 is mandatory and cannot be altered or avoided by contract.” (Exxess Electronixx v. Heger Realty Corp. (1998) 64 Cal.App.4th 698, 707.) Where a contract provides that only one party may recover such fees, “ the effect of section 1717 is to allow recovery of attorney fees by whichever contracting party prevails, ‘whether he or she is the party specified in the contract or not.’ [Citation.]” (Santisas v. Goodin (1998) 17 Cal.4th 599, 611 [quoting section 1717(a)].)

Defendant argues that plaintiff is not the prevailing party because, through settlements, defendant obtained greater relief than plaintiff. Defendant fails to sufficiently establish that the settlement of the cross-complaints in any way affected plaintiff’s right to recovery under the original complaint. Indeed, the only evidence of the settlement is defense counsel’s declaration that the claims were settled for $28,000.00. (See Carroll Decl., ¶ 6.) Defendant does not provide the written settlement agreement or otherwise indicate what, if anything, the settlement said about the recovery of attorney’s fees. Plaintiff asserts that the release specifically provided that it would not affect the parties’ right to recover attorney’s fees on the remaining claims. (See Motion, p. 4:16-18.) Therefore, defendant fails to establish that it is the prevailing party, and not plaintiff.

Defendant also argues that the amount of fees requested is unreasonable. The trial court has broad authority to determine the amount of a reasonable fee. (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095; Ghanooni v. Super Shuttle of Los Angeles (1993) 20 Cal.App.4th 256, 262.) In determining the reasonable value of the attorney services, “the court does not need separate evidence to establish the reasonable value of whatever should be justly awarded, the theory being that the trial judge is competent from his own knowledge of legal practice to fix the amount of the fees. [Citations.]” (Spencer v. Harmon Enterprises (1965) 234 Cal.App.2d 614, 621 [internal citations omitted].)

The attorney bears the burden of proof as to “reasonableness” of any fee claim. (Code Civ. Proc., § 1033.5(c)(5).) This burden requires competent evidence as to the nature and value of the services rendered. (Martino v. Denevi (1986) 182 Cal.App.3d 553, 559.)

In determining whether the requested attorney’s fees are “reasonable,” the Court’s

‘first step involves the lodestar figure – a calculation based on the number of hours reasonably expended multiplied by the lawyer’s hourly rate. The lodestar figure may then be adjusted, based on consideration of facts specific to the case, in order to fix the fee at the fair market value for the legal services provided.’

(Gorman v. Tassajara Development Corp. (2008) 162 Cal.App.4th 770, 774 [internal citations omitted].) In determining whether to adjust the lodestar figure, the Court may consider the nature and difficulty of the litigation, the amount of money involved, the skill required and employed to handle the case, the attention given, the success or failure, and other circumstances in the case. (EnPalm LLC v. Teitler (2008) 162 Cal.App.4th 770, 774; PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095.)

Plaintiff provides evidence as to the hourly rates of counsel. (See Kiss Decl., ¶¶ 7-8.) The Court finds these rates to be reasonable. Kiss’s firm’s involvement in this action was limited to the prosecution of the complaint, and other counsel handled the cross-complaints. (Id., ¶ 9.) (At the conclusion of the trial, the Court indicated that Plaintiff would only be entitled to attorneys fees for work on the complaint, not on the cross-complaint.) Kiss provides invoices and declares that the fees and costs incurred to date are $9,273.00. (Id., ¶ 11, Exh. A.) With the fees incurred for the instant motion, the total amount incurred by Kiss is $10,773.00. (Id., ¶ 13.)

Plaintiff also seeks to recover fees incurred by previous counsel, in the total amount of $6,318.00. Plaintiff fails to sufficiently evidence this amount. Kiss has not established that he has personal knowledge of the amount incurred by the previous counsel. (See Kiss Decl., ¶ 10.) Plaintiff provides the declaration of Shlomit Ben Shushan, who states that an invoice from the previous counsel is attached. (Shushan Decl., ¶ 7.) No such exhibit is attached to the declaration. Plaintiff has not met its burden to show that the attorneys fees of previous counsel are reasonable.

In the opposition, defense counsel asserts that plaintiff’s insurance company, Travelers Insurance, undertook almost all of the litigation efforts on behalf of plaintiff. (See Carroll Decl., ¶¶ 5-8.) Defense counsel fails to establish any personal knowledge of this fact. Defense counsel does not provide any other admissible evidence to support this assertion.

Plaintiff’s motion for attorney’s fees is GRANTED in the total amount of $10,773.00.