Case Number: SC104297 Hearing Date: July 01, 2014 Dept: P

TENTATIVE RULING – DEPT. P

JULY 1, 2014 CALENDAR No: 1

SC104297 — THOMPSON PLUMBING v. AZ WELLESLEY, et al.
PLAINTIFF’S MOTION FOR FEES

This was an action by a subcontractor against a contractor for amounts unpaid under a plumbing subcontract. Plaintiff obtained judgment in its favor after a court trial. It now seeks attorney’s fees under an attorney’s fees provision in the prime contract which, as standard in the industry, is incorporated by reference into the in the subcontract. The Court will grant the motion in part.

Upon review of the opposition and reply briefs, the Court agrees with Plaintiff’s contentions — and reject’s Defendants’ assertions — regarding the existence of a fee provision (viz., the Court concludes that Plaintiff has established a contractual right to attorney’s fees) and Plaintiff’s timely rejection of Defendants’ CCP 998 offer (which does not defeat Plaintiff’s right to attorney’s fees).

The Court notes that at 2:5-11 of the opposition brief Defendants appear to argue that Plaintiff’s claim is barred by a “mediate first” provision in the prime contract. However, the argument is made practically in passing, is not elaborated upon elsewhere in the opposition, and is not supported by evidence – and is amply refuted by Plaintiff. If Defendants wished to support their assertion in this regard, they should have better explained the basis for their claim. It is not the Court’s function to properly construct that point for them. “The state is under no duty to provide counsel for private litigants in civil cases. There is neither reason nor justification for compelling a trial judge to act as a sort of advisory or ‘backup’ counsel.” Gagosian v. Burdick’s Television and Appliances (1967) 254 Cal.App.2d 316, 318. In any event, for the reasons stated in the reply brief, the point has no merit.

The question now before the Court, then, is the amount of fees that should be awarded. Based on its familiarity with lodestar principles, based on the application of said principles to the case at bar, based on its familiarity with the case at bar (including the unfortunate manner in which defense counsel litigated the action, including the motion at bar), based on its close review of the billing statements submitted in support of the motion, and based on its 43+ years of experience (including 19+ years as a bench officer), the Court calculates reasonable attorney’s fees as follows: $28,800.00, comprised of 128 hours at the reasonable blended rate of $225.00 per hour. This amount includes “fees on fees” and reduces the hours awarded to account for an apportionment of the fees incurred in pursuing the surety, Western Surety Company.

The Court notes that para. 6 of Plaintiff’s counsel’s declaration implies that attorney Gerald Silver personally billed 130.1 hours to this case at the rate of $350.00/hr., when in fact another attorney from his office with just a fraction of his experience provided much of the work on the matter but billed at the same rate. For clarity, the word “my” at the beginning of the paragraph should have been followed by the word “firm’s.”

Motion for fees is granted in part. Plaintiff is awarded attorney’s fees against Defendants in the amount of $34,800.00.

DEFENDANTS’ MOTION TO TAX PLAINTIFF’S COSTS BILL

As an initial matter, when the Court executed the judgment and awarded costs therein, the Court was unaware that Defendants had filed a timely motion to tax costs.

The motion fails to comply with CRC 3.1700(b)(2), pertaining to the form of motions to tax. The Court will overlook the defect.

Defendants’ request, made for the first time in their reply brief, to strike the $178.50 for service of process, is patently unfair and raises significant issues of due process and notice – and is denied.

Code of Civil Procedure section 1033.5(a) sets forth the items that are allowable as costs under section 1032, while section 1033.5(b) identifies a list of items not allowable as costs, except when expressly authorized by law.

“If the items appearing in a cost bill appear to be proper charges, the burden is on the party seeking to tax costs to show that they were not reasonable or necessary. On the other hand, if the items are properly objected to, they are put in issue and the burden of proof is on the party claiming them as costs.” Ladas v. Cal. State Auto. Assoc. (1993) 19 Cal.App.4th 761, 774. Thus, if the items appear to be proper charges the verified memorandum is prima facie evidence that the costs, expenses and services therein listed were necessarily incurred by the prevailing defendant, and the burden of showing that an item is not properly chargeable or is unreasonable is upon Plaintiff. See, Nelson v. Anderson (1998) 72 Cal.App.4th 111, 131.

Section 1033.5(a)(12) provides that “… photocopies of exhibits may be allowed if they were reasonably helpful to aid the trier of fact.”

Section 1033.5, subdivision (b)(5) prohibits the recovery of costs for “[t]ranscripts of court proceedings not ordered by the court.” However, it does not prohibit the award of court reporter fees. See, Chaaban v. Wet Seal, Inc. (2012) 203 Cal.App.4th 49, 58 (“Chaaban argues that [reporter fees] should not have been allowed because section 1033.5, subdivision (b)(5) does not permit charges for “transcripts of court proceedings not ordered by the court” as costs. These charges are not for transcripts. They are for court reporter fees, an entirely different expense. The parties have to pay the court reporter regardless of whether anyone orders transcripts”).

Section 1033.5(c)(4) provides: “Items not mentioned in this section and items assessed upon application may be allowed or denied in the court’s discretion.”

Based on the foregoing authorities, the Court will tax the $500.00 sought for transcripts not ordered by the Court, and deny the motion in all other respects.

AT THIS MORNING’S HEARING DEFENSE COUNSEL IS TO DIRECT THE COURT TO THAT PORTION OF CCP 1033.5 WHICH HE QUOTED AS STATING THAT “THE COST OF ADDITIONAL SETS OF EXHIBITS THAT WERE NOT PROVIDED TO THE TRIER OF FACT IS NOT RECOVERABLE.” REPLY, 3:13-14. The Court could not locate this supposed quotation from the statute. If it does not part of the statute, what was the purpose in so attributing it?

Motion is granted in part. The costs bill is taxed in the amount of $500.00. Plaintiff is awarded $1,208.50.00 in costs against Defendants.

Plaintiff is to serve and lodge a proposed order pursuant to CRC 3.1312. It is to concurrently serve and lodge a proposed amended judgment awarding attorney’s fees and costs.

NOTICE

_______ shall give notice of today’s rulings and timely file proof of service thereof, pursuant to CCP 1019.5 and CRC 3.1312.