Case Number: EC064044 Hearing Date: February 01, 2019 Dept: A

Ghannoum v Sevier

MOTION FOR ATTORNEY’S FEES

Calendar: 4

Case: EC064044

Hearing Date: 2/1/19

Action Filed: 5/17/15

MP:

Defendant Julia K. Sevier

RP:

Plaintiffs Mohammed Ghannoum and Samir Ghannoum

ALLEGATIONS:

Plaintiffs Samir and Mohammed Ghannoum allege that they rented a room in their home to Defendant Julia K. Sevier beginning March 9, 2012, under a 3-month lease term. They allege that on July 26, 2012, Plaintiffs gave Defendant a notice of terminating tenancy and thereafter filed an unlawful detainer action to evict her on May 10, 2013. In June 2013, Defendant moved from the premises but removed and damaged property in Plaintiffs’ home in the amount of $39,300.00.

The complaint, filed May 7, 2015, alleges causes of action for: (1) conversion and (2) trespass to chattels.

RELIEF REQUESTED:

Defendant moves for attorney’s fees.

DISCUSSION:

Relevant Background

This case is the fourth case arising from a landlord-tenant relationship.

On July 27, 2012, Defendant filed a restraining order case against Plaintiffs in Case Nos. GS014368 and GS014369. Defendant prevailed on October 31, 2012 and was awarded attorney’s fees. Following an appeal (which was later dismissed by Plaintiffs), Defendant was awarded additional attorney’s fees. The judgments for those two actions was satisfied in January 2016.

On September 2, 2012, Plaintiffs filed an unlawful detainer case against Defendant in Case No. 12U0599, wherein the Plaintiffs prevailed in the case and were placed in possession of the property on June 9, 2013.

On December 18, 2012, Defendant filed a civil action against Plaintiffs in Case No. GC050668. After trial, judgment was entered in the action in favor of Defendant on August 19, 2014. Defendant Sevier was awarded attorney’s fees. Plaintiffs Ghannoum appealed and the judgment was affirmed in full, such that Defendant Sevier was awarded additional attorney’s fees on appeal.

Thereafter, on May 7, 2015, Plaintiffs filed this action in EC064044 against Defendant.

On January 4, 2019, Defendant’s motion to dismiss the action pursuant to CCP §583.420 and request for entry of judgment on dismissal came for hearing. Prior to the hearing, the Court issued its tentative denying the motion. However, at the hearing, the Court noted that Plaintiff failed to oppose the motion and neither Plaintiffs nor their counsel filed an opposition to the motion. Thus, the Court ultimately granted the motion based on the merits of the motion, including there being no opposition filed, pursuant to CRC Rule 3.1342(b). The Court then vacated the final status conference and trial date.

On January 7, 2019, Defendant filed the memorandum of costs.

On January 10, 2019, Defendant filed the instant motion for attorney’s fees. Plaintiffs oppose on substantive grounds. However, the court’s records indicate that Plaintiffs have filed a motion to set aside/vacate the dismissal, which is set to be heard on March 1, 2019. In the motion to set aside the dismissal, Plaintiffs argue that they did not receive notice of the motion to dismiss. In opposition to the instant motion for attorney’s fees, Plaintiffs do not raise this as an argument or ask that the fees motion be continued until after the motion to set aside the dismissal, but rather Plaintiffs only dispute the merits of the attorney’s fees motion.

Applicable Law

Civil Code §1717 states that a party may recover attorney’s fees when the party prevails in an action based on a contract that provides for the prevailing party to recover attorney’s fees. The court, upon notice and motion by a party, shall determine who is the prevailing party on the contract for purposes of section 1717, whether or not the suit proceeds to final judgment. (Civ. Code, §1717(b)(1).)

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.) The award of attorney fees under section 1717 is governed by equitable principles. (Id.) The experienced trial judge is the best judge of the value of professional services rendered and the trial judge’s decision will not be disturbed unless the appellate court is convinced that it is clearly wrong, i.e., that it abused its discretion. (Id.)
The fee setting inquiry in California ordinarily begins with the “lodestar,” i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate. (Id.) California courts have consistently held that a computation of time spent on a case and the reasonable value of that time is fundamental to a determination of an appropriate attorneys’ fee award. Id. 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. (Id.) Such an approach anchors the trial court’s analysis to an objective determination of the value of the attorney’s services, ensuring that the amount awarded is not arbitrary. (Id.)

No specific findings reflecting the Court’s calculations are required. (Wershba v. Apple Computer, Inc. (2001) 91 Cal. App. 4th 224, 254-255.) The record need only show that the attorney fees were awarded according to the ‘lodestar’ approach. (Id.)

In Wershba, the trial court awarded attorney’s fees to the plaintiffs based upon declarations evidencing the reasonable hourly rate for their services and establishing the number of hours spent working on the case. There were no time sheets submitted describing work done, there was no evidence establishing the rate charged as a reasonable hourly rate, and there was no evidence from which the Court could make findings regarding the various factors considered in the lodestar approach. The Court of Appeal found that no specific findings were required and affirmed the trial court’s order.

Motion for Attorney’s Fees

Defendant moves to amend the judgment of dismissal in her favor, nunc pro tunc, to include attorney’s fees and costs. Defendant then moves for attorney’s fees in the amount of $86,913.35 total.

Amending the Judgment Nunc Pro Tunc

The Court is in receipt of Defendant’s [Proposed] Judgment of Dismissal, lodged on January 5, 2019. To the extent the proposed judgment is incorrect, Defendant should lodge a separate, amended judgment correcting any errors, as the Court has not yet entered the judgment.

Mediation Prerequisite

Paragraph 37 of the Lease Agreement states:

37. MEDIATION:

A. Consistent with paragraphs B and C below, Landlord and Tenant agree to mediate any dispute or claim arising between them out of this Agreement, or any resulting transaction, before resorting to court action. Mediation fees, if any, shall be divided equally among the parties involved. If, for any dispute or claim to which this paragraph applies, any party commences an action without first attempting to resolve the matter through mediation, or refuses to mediate after a request has been made, then that party shall not be entitled to recover attorney fees, even if they would otherwise “be available to that party in any such action.

B. The following matters are excluded from mediation: (i) an unlawful detainer action; (Ii) the filing or enforcement of a mechanic’s lien; and (iii) any matter within the jurisdiction of a probate, small claims or bankruptcy court. The filing of a court action to enable the recording of a notice of pending action, for order of attachment, receivership, injunction, or other provisional remedies, shall not constitute a waiver of the mediation provision.

C. Landlord and Tenant agree to mediate disputes or claims involving listing Agent, Leasing Agent or property manager (“Broker”), provided Broker shall have agreed to such mediation prior to, or within a reasonable time after the dispute or claim is presented to such Broker. Any election by Broker to participate in mediation shall not result in Broker being deemed a party to this Agreement

(Sears Decl., Ex. 2 [Lease Agreement].)

On April 2, 2015, Plaintiffs’ counsel, Zulu Ali, mailed a letter to Defendant, demanding mediation and a response to the demand within 7 days of the date of the letter. (Opp. at Ex. A.) On April 14, 2015, Anthony A. Sears (defense counsel) wrote back to Mr. Ali, indicating that Defendant was agreeable to mediation. (Opp. at Ex. B.)

Defendant argues that Plaintiffs did not respond to Mr. Sears’ letter and did not follow through the mediation demand, but instead filed this action on May 7, 2015.

In opposition, Plaintiffs argue that Defendant was required to respond to the request for mediation within 7 days to the mediation demand, or else it would be determined that Defendant refused to mediate. (Opp. at p. 3.) Plaintiffs thus argue that because Defendant responded 12 days later, without any justification for the delay, Defendant effectively refused to mediate and thereby waived her right to seek attorney’s fees.

However, there is no indication from the Lease Agreement that the parties agreed to a specific timeline upon which the parties must respond to a mediation demand. Rather, Mr. Ali unilaterally set his own time limitation for Defendant and defense counsel to respond to Plaintiffs’ mediation demand letter. Additionally, Mr. Ali did not provide any additional time for Defendant to respond to account for the time for mailing, nor did Plaintiffs make any further attempts or steps to mediate the dispute prior to filing this action on May 7, 2015 even though Defendant replied affirmatively to mediate the dispute on April 14, 2015.

Thus, the Court will find that Defendant responded to Plaintiffs’ mediation demand in a timely fashion, did not refuse mediation, and did not waive her rights to recover attorney’s fees by refusing mediation.

Attorney’s Fees

Defendant moves for attorney’s fees based on the Lease Agreement at issue between the parties. (See Anthony A. Sears Decl., Ex. 2 [Lease Agreement, ¶38].) Paragraph 38 of the Lease Agreement states:

38. ATTORNEY FEES: In any action or proceeding arising out of this Agreement, the prevailing party between Landlord and Tenant shall be entitled to reasonable attorney fees and costs, except as provided in paragraph 37A.

(Lease Agreement, ¶38.)

Defendant argues she is the prevailing party in this action pursuant to CCP §1032(a)(4). This subsection defines “prevailing party” as “the party with a net monetary recovery, a defendant in whose favor a dismissal is entered, a defendant where neither plaintiff nor defendant obtains any relief, and a defendant as against those plaintiffs who do not recover any relief against that defendant.” (See also Civ. Code, §1717.) Here, Defendant obtained a dismissal in her favor. Thus, she seeks to recover allowable costs under CCP §1033.5, including attorney’s fees as authorized by contract. (CCP §1033.5(a)(10).)

In support of the request for attorney’s fees in the amount of $86,913.35, Mr. Sears provides his declaration. Mr. Sears states that he has practiced law for 31 years and has extensive trial experience and expertise in real property matters. (Sears Decl., ¶¶2-3.) He states that from June 24, 2015 to December 31, 2016, he charged an hourly rate of $385, and from January 1, 2017 to the present, he increased his hourly rate to $425. (Id., ¶3.) He believes these rates are more than reasonable in comparison to rates charged by other experienced and skilled litigation attorneys in Los Angeles County. (Id.) He has attached his time and billing records for the work performed in this action from June 24, 2015 to January 7, 2019, showing that he spent 204.23 hours in representing Defendant. (Id., ¶4; Ex. 1 [Billing Records].) He seeks $82,663.35, which accounts for: (A) 103.36 hours at $385/hour from June 24, 2015 to December 31, 2016 = $39,763.60; plus (B) 100.87 hours at $425/hour from January 1, 2017 to January 7, 2019 = $ 42,869.75. (Id.) He also seeks an additional 10 hours or $4,250.00 in attorney’s fees for this motion, for a total amount of $86,913.35. (Id., ¶5.)

In opposition, Plaintiffs argue that Defendant’s request for attorney’s fees are unreasonably high. Plaintiffs do not dispute whether defense counsel’s hourly rate is unreasonable, but rather they dispute particular hours billed. Specifically, Plaintiffs dispute the nearly 18 hours defense counsel spent from July 8, 2015 to July 21, 2015 to prepare a motion to quash service of the summons and complaint; block billing; the nearly 20 hours defense counsel spent from May 9, 2016 to May 20, 2016 to draft a demurrer; the 5.25 hours he spent preparing discovery on July 18, 2016, which Plaintiffs claim were essentially identical to the prior discovery in previous cases; the 5.25 hours spent on April 10, 2017 preparing witness and exhibit lists when Defendant did not file such lists; and the nearly 15 hours defense counsel spent on preparing motions in limine (without distinction) from July 10, 2017 to July 14, 2017. In total, Plaintiffs dispute approximately 63.5 hours.

Defense counsel is entitled to recover fees in connection for such tasks performed in defending this action, but the amounts sought for numerous, fairly routine tasks are unreasonably high, or repetitive or unnecessary. Thus, the Court will reduce the amount to a reasonable sum with a reduction of 42 hours. As no other hours incurred were specifically disputed by Plaintiffs, the total attorney’s fees sought by Defendant will not be further reduced.

Thus, the Court will grant Defendant’s motion for attorney’s fees in the amount of $70,087.85.

As different billing rates applied for the varying years, the amount was calculated as follows.

The fees incurred from 2015-2016 was calculated by taking the 18 hours on the motion to quash, 20 hours for the demurrer, and 5.25 for discovery (total 43.25 hours); dividing 43.25 by 3 (14.4 hours); and multiplying it by the operative hourly rate of $385/hour in 2015 to 2016. This amounts to $5,544 total in attorney’s fees, and an $11,088 reduction in attorney’s fees.

The fees incurred from 2017 onward was calculated by taking the 5.25 hours on preparing witness and exhibit lists, and 15 hours for motions in limine (total 20.25 hours); dividing 20.25 by 3 (6.75 hours); and multiplying it by the operative hourly rate of $425/hour in 2017 to 2019. This amounts to $2,868.75 total in attorney’s fees, and a $5,737.50 reduction in attorney’s fees.

RULING:

Grant the motion for attorney’s fees in the amount of $70,087.85.