2013-00154687-CU-BT

Brian A. Clarke vs. Jaskaran S. Boparai

Nature of Proceeding: Motion for Attorney Fees

Filed By: Bolanos, Aldon L.

Defendant Jaskaran Boparai’s Motion for Award of Attorneys’ Fees and Costs Incurred
in Expunging Lis Pendens is GRANTED, as set forth below.

On Feb. 21, this Court granted defendant’s motion to expunge lis pendens, holding
that the plaintiff’s complaint did not contain a real property claim, as plaintiff’s offers to
purchase were ignored, and no money was accepted from him. Similarly, plaintiff has
failed to establish the probable validity of his real property claim, therefore the lis pendens was ordered expunged.

C.C.P., sec. 405.38 provides that “The court shall direct that the party prevailing on
any motion [to expunge lis pendens] be awarded the reasonable attorney’s fees and
costs of making or opposing the motion unless the court finds that the other party
acted with substantial justification or that other circumstances make the imposition of
attorney’s fees and costs unjust.”

Moving counsel requests an award of $15,805.30, representing attorneys’ fees of
$15,210 (50.7 hours for two motions at $300/hr.) and costs of $595.30.

In opposition, the plaintiff asserts that this Court has already ruled on the attorneys’
fees. The Court does not concur; its prior order merely stated “Moving party has failed
to request an award of reasonable attorneys’ fees, thus none are awarded. The
plaintiff’s counsel’s request is denied. C.C.P., sec. 405.38.” The Court did not rule on
defendant’s motion for attorneys’ fees as no previous motion for fees was made.
Neither res judicata nor collateral estoppel is applicable here. Generally, the party
prevailing on any motion under this chapter shall be awarded the reasonable attorney’s
fees and costs of making or opposing the motion, unless other circumstances make
the imposition of attorney’s fees and costs unjust. Code Civ Proc § 405.38. Clearly,
Code Civ. Proc. § 405.38 states that the court “shall” order an award in favor of the
prevailing party unless it makes specified findings. This does not make the award
absolutely mandatory, but in effect places a burden on the party subject to the sanction
to establish substantial justification or other good cause for not making the award. The
Court has discretion to award attorneys’ fees based on a determination of which party
prevailed on the motion and whether the lis pendens claimant acted with substantial
justification, or whether, in light of all of the circumstances, the imposition of fees would
otherwise be unjust . Castro v. Superior Court (2004) 116 Cal. App. 4th 1010, 1022-
1023. Trial courts are instructed to adopt a “practical approach” [Id.] to determine a
prevailing party.

Plaintiff further argues that this Court should find that the plaintiff acted with substantial
justification or that other circumstances make the imposition of attorney’s fees and
costs unjust.” Although plaintiff’s counsel asserts that the issue of the lis pendens was
“heavily disputed” the Court did not find it to be a close question, therefore the Court
cannot find that plaintiff acted with substantial justification in opposing the motion to
expunge.

No “special circumstances” which would make the award of fees “unjust” are identified
by plaintiff to preclude the defendant’s counsel from receiving a mandatory award of
attorneys’ fees. (C.C.P., sec. 405.38)

The Court finds no waiver by the defendant of his entitlement to an award of attorneys’
fees by his failure to request it in the motion to expunge.

In the exercise of the Court’s discretion, the Court may determine the reasonable
amount of attorneys’ fees and costs. The Court finds that 50.7 hours for the
preparation of two motions at $300/hr. is excessive. The Court awards 32 hours as
reasonable attorneys’ fees at $300/hour, for a total of $9,600.

The costs requested for attorney service, postage and photocopies on both motions
are disallowed as not allowable by statute or reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation. C.C.P., sec.
1033.5(b)(2) and (c)(2). Costs for the court filing fees of $120.00 ($60 for each
motion) are granted.

The Court awards the sum of $9,720 to be paid by plaintiff to counsel for defendant as
reasonable attorney’s fees and costs incurred in making the motion to expunge lis
pendens and for award of attorneys’ fees.

The prevailing party shall prepare a formal order for the Court’s signature pursuant to
C.R.C. 3.1312.