Tentative Ruling

Judge Donna Geck
Department 4 SB-Anacapa
1100 Anacapa Street P.O. Box 21107 Santa Barbara, CA 93121-1107

CIVIL LAW & MOTION
David Weisman vs Michael Post
Case No: 1469303
Hearing Date: Fri Nov 22, 2019 9:30

Nature of Proceedings: Motion for Attorney Fees and Costs to Plaintiff Against Defendant

Tentative Ruling: The court grants plaintiff David Weisman’s motion to attorney fees and awards attorney fees in the amount of $104,863.50.

Background: On October 24, 2014, plaintiff David Weisman brought this action against defendant Michael Post to determine that defendant had no publicity rights under Civil Code § 3344.1 because Edie Sedgwick was not a “deceased personality” as defined in that statute. On August 26, 2019, the court entered judgment after a court trial in favor of plaintiff. The court specifically ordered and decreed that plaintiff was the prevailing party entitled to costs of suit.

On October 8, plaintiff served by mail a notice of entry of judgment and a memorandum of costs in the amount of $12,312.30 plus attorney fees in an amount to be determined. There is no motion to tax or strike costs. On November 7, defendant filed a motion for new trial.

Motion: Plaintiff moves for attorney fees in the amount of $110,038.50 under Civil Code § 3344.1(a)(1) and as costs of proof under CCP § 2033.420. Defendant has not filed an opposition to the motion.

Plaintiff’s counsel submitted a declaration in support of the motion with four exhibits. Plaintiff filed a request for judicial notice in support of the motion with six attached exhibits. There are no electronic bookmarks for the exhibits. “[E]lectronic exhibits must include electronic bookmarks with links to the first page of each exhibit and with bookmark titles that identify the exhibit number or letter and briefly describe the exhibit.” CRC 3.1110(f)(4). This rule has been in effect since January 1, 2017. The exhibits consist of 174 pages. Plaintiff apparently expects the court to scroll through all those pages to find what plaintiff is referring to in the motion.

1. Civil Code § 3341: Civil Code § 3344.1(a)(1) (hereafter “§ 3344.1”) provides: “The prevailing party or parties in any action under this section shall also be entitled to attorney’s fees and costs.” The statute provides for actions for damages and does not mention declaratory relief. Nevertheless, courts have held that attorney fees under § 3344.1 may be awarded to declaratory judgment plaintiffs. Electronic Arts Inc. v. Hebrew University of Jerusalem, 100 F.App’x 629, 632 (9th Cir. 2004); Milton H. Greene Archives, Inc. v. CMG Worldwide, Inc., 2009 WL 10669361, at *10 (C.D. Cal. Mar. 25, 2009).

In his first amended complaint [FAC], plaintiff alleges that defendant wrongfully claimed to be the successor-in-interest to Sedgwick under § 3344.1. [FAC ¶¶24, 25] At trial, defendant sought to prove “that there was in fact at least ‘some’ commercial value at the time of her death or as the result of her death, which is all that is required under Civil Code Section 3344.1.” Plaintiff sought and obtained declaratory relief that defendant has no publicity rights to Sedgwick under § 3344.1 or otherwise. Plaintiff also sought and obtained injunctive relief on the same grounds as declaratory relief.

Plaintiff is entitled to attorney fees under § 3344.1(a)(1).

2. CCP § 2033.420: Plaintiff alternatively seeks attorney fees under CCP § 2033.420(a), which provides: “If a party fails to admit the genuineness of any document or the truth of any matter when requested to do so under this chapter, and if the party requesting that admission thereafter proves the genuineness of that document or the truth of that matter, the party requesting the admission may move the court for an order requiring the party to whom the request was directed to pay the reasonable expenses incurred in making that proof, including reasonable attorney’s fees.”

The court did scroll through the exhibits to find Exhibit D to counsel’s declaration and Exhibit 1 to the request for judicial notice, which are identical. These exhibits consist of a Request for Admissions and the responses to a Request for Production of Documents. So, in addition to the deficiency in exhibits lacking electronic bookmarks, plaintiff has not produced admissible evidence of the responses to requests for admission.

The court will not base its attorney fee award on CCP § 2033.420.

3. Amount of Attorney Fees: Plaintiff seeks attorney fees for 197.3 hours at the rate of $495 per hour, for a total of $97,663.50; and costs totaling $12,375.

The fee request inquiry begins with the “lodestar,” i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate. PLCM Grp. v. Drexler, 22 Cal.4th 1084, 1095 (2000). “The value of legal services performed in a case is a matter in which the trial court has its own expertise. [Citation] The trial court may make its own determination of the value of the services contrary to, or without the necessity for, expert testimony.” Id. at 1096. A trial court need not “become enmeshed in a meticulous analysis of every detailed facet of the professional representation.” Serrano v. Unruh, 32 Cal.3d 621, 642 (1982). Otherwise the inquiry into the mount of the fee would “assume massive proportions, perhaps dwarfing the case in chief.” Id.

A trial judge ‘is entitled to take all of the circumstances [of the case] into account and is not bound by the itemization claimed in the attorney’s affidavit.’” Hadley v. Krepel, 167 Cal.App.3d 677, 682-683 (1985) [citations omitted]. “[T]he verified time statements of the attorneys, as officers of the court, are entitled to credence in the absence of a clear indication the records are erroneous.” Horsford v. Bd. Of Trustees of California State Univ., 132 Cal.App.4th 359, 396 (2005).

The court finds the rate charged by experienced counsel is reasonable. The hours expended reflect the complexity of the case and quality of the representation.

The bill includes $7,200 for paralegal services at $150 per hour. “[N]ecessary support services for attorneys, e.g., secretarial and paralegal services, are includable within an award of attorney fees.” Salton Bay Marina, Inc. v. Imperial Irrigation Dist., 172 Cal.App.3d 914, 951 (1985). Plaintiff seeks compensation for paralegal services. “[A]wards of attorney fees for paralegal time have become commonplace in California….” Guinn v. Dotson, 23 Cal.App.4th 262, 269 (1994). The court will award fees for paralegal services as part of the attorney fee award.

The total attorney fee award is $104,863.50.

4. Costs: Plaintiff seeks expert witness fee costs ($5,000) and courier and routine services costs ($175).

Plaintiff is not entitled to recover, as part of the attorney fee award, costs that are not recoverable under CCP § 1033.5. In Bussey v. Affleck, 225 Cal.App.3d 1162 (1990), a panel of the First District Court of Appeal that “where a contract provides for payment of costs and attorney’s fees, the court may allow disbursements of counsel as attorney fees under section 1033.5, subdivision (a)(10), if they represent expenses ordinarily billed to a client and are not included in the overhead component of counsel’s hourly rate.” Id. at 1166. But the weight of authority appears to hold contrary – that expert witness fees and various other litigation expenses not allowed by statute are not recoverable as costs even when a contract provides for the recovery of attorney fees and costs by the prevailing party. Ripley v. Pappadopoulos, 23 Cal.App.4th 1616, 1626 (1994). “In the absence of some specific provision of law otherwise, attorney fees and the expenses of litigation, whether termed costs, disbursements, outlays, or something else, are mutually exclusive, that is, attorney fees do not include such costs and costs do not include attorney fees.” Id. See also Hsu v. Semiconductor Systems, Inc., 126 Cal.App.4th 1330, 1342 (2005), a First District case expressly disavowing Bussey.

This court is particularly influenced by a decision of the Second District, Div. 6, Jones v. Union Bank of California, 127 Cal.App.4th 542 (2005). That court held: “Because costs other than those allowed under section 1033.5 are not based on statute, they must be specifically pleaded and proved at trial rather than included in a memorandum of costs.” Id. at 551.

The court will not include these costs in the award.

5. Order: The court grants plaintiff David Weisman’s motion to attorney fees and awards attorney fees in the amount of $104,863.50.