Case Number: BC414047 Hearing Date: June 16, 2014 Dept: 56

Case Name: Ardake Holdings v. Konce
Case No.: BC414047
Motion: Motion for Attorney Fees
Moving Party: Plaintiff/Cross-Defendant Ardake Holdings, et al.
Responding Party: Defendant/Cross-Complainant Allan Anthony Konce

Tentative Ruling: Motions are granted in part.

Plaintiff Ardake Holdings LLC filed this action against Defendant Allan Anthony Konce, who filed a cross-complaint. After a court trial the Court (Judge Shook) entered a judgment and a statement of decision, which the parties appealed. In its decision the Court of Appeal affirmed the judgment in part and remanded for recalculation of the monetary awards and interest. On 2/5/14 this Court awarded Ardake attorney fees incurred on that appeal.

The Court of Appeal’s remittitur was issued on 2/26/13. The parties engaged in extensive proceedings concerning the matters subject to the Court of Appeal’s remand. Konce challenged and litigated many issues. On 8/29/13 the Court (Judge Dau) entered a Second Amended Judgment which rejected Konce’s arguments and accepted those by Ardake. Konce appealed the 8/29/13 amended judgment, and there were proceedings in this Court and in the Court of Appeal concerning the undertakings on appeal. On 1/14/14 the Court of Appeal dismissed Konce’s second appeal.

Ardake now moves for recovery of attorney fees incurred after the 2/26/13 remittitur, which includes proceedings in the Superior Court (before Judge Dau and Judge Johnson) and in the Court of Appeal (on Konce’s second appeal from the 8/29/13 amended judgment). The motion is made pursuant to Civil Code §1717 and CCP §685.040, and the attorney fee clause in the parties’ agreement. Ardake seeks $229,018 for fees and costs, plus $11,600 for the reply brief filed on this motion. Ardake also seeks $18,312 for attorney fees incurred on the attorney fee motion addressed on 2/5/14.

CCP §685.080(a) –
Konce opposes the motion, arguing that it is untimely under CCP §685.080(a) because the motion was filed after the judgment was satisfied in full. §685.040 permits recovery of fees and costs incurred in the enforcement of a judgment, and §685.080(a) requires a motion for such fees to be filed before the judgment is satisfied in full. These provisions do not apply to the bulk of Ardake’s fees, because they were incurred for services other than enforcement of the amended judgment.

But even as to those fees incurred for enforcement, §685.080(a) is not applicable. That is because on 12/4/13 the parties’ entered into an “Agreement to Disburse Funds” which stated that Konce’s payment was in partial satisfaction of the amended judgment, and which expressly reserved entitlement to attorney fees. §685.080(a) does not apply. See Evans v. Galardi (1979) 93 Cal.App.3d 291, 294 n.2.

Amount of Fees and Costs –
The determination of a reasonable amount of attorney fees is within the discretion of trial courts, upon consideration of a number of factors including the nature of the litigation, its difficulty, and other circumstances. PLCM Group v. Dexler (2000) 22 Cal.4th 1084, 1095. California courts generally follow the “lodestar” method of calculating a fee award. E.g. Graciano v. Robinson Ford Sales (2006) 144 Cal.App.4th 140, 154.

Following these principles, the Court has reviewed the fees and services claimed by Ardake (Blum Decl. Ex. D) and it finds them all to be reasonable and appropriate. While the amount is high, that was caused by Konce’s intense efforts to re-litigate the action, maintain an appeal that was ultimately dismissed, and oppose efforts to enforce the amended judgment. The Court therefore awards Ardake $240,618, consisting of $229,018 for fees and costs incurred in the trial and appellate proceedings after the 2/26/13 remittitur, plus $11,600 for the reply brief on this motion. The request for $18,312 in fees incurred on the first attorney fee motion addressed on 2/5/14 is denied; as discussed at the 2/5/14 hearing, that chapter is closed and will not be reconsidered.

Motion to Seal –
Ardake moves to seal the entire reply brief on the ground that the parties’ 12/4/13 Agreement to Disburse Funds is confidential. The Court will grant the motion in part, sealing only Ex. E to the reply brief, which is the Agreement itself. Ardake has not established good cause to seal the entire reply brief or the discussion and quotes from the Agreement. Konce has requested leave to address in the Agreement in further briefing; the request is denied.