2010-00079954-CL-CL

Discover Bank vs. Heidi R Maule

Nature of Proceeding: Motion for Attorney Fees

Filed By: Cable, Keith

** If oral argument is requested, it will take place in this department at 9:00AM
on Tuesday, November 19, 2013. The request must still be made by 4:00PM
today in compliance with Sacramento County Superior Court Local Rule 1.06. **

Defendant Heidi R. Maule’s (“Maule”) motion for contractual attorney’s fees is
GRANTED as follows:

Plaintiff Discover Bank (“Bank”) filed this action against Maule for breach of a credit
card agreement. On two occasions, Maule successfully challenged service of the
summons and complaint. After she prevailed on her second motion, the court
dismissed the action given the Bank’s failure to serve the summons within the statutory
three-year period at CCP § 583.210. Because the parties’ credit card agreement
provides a prevailing party with reasonable attorney’s fees, and because Maule
obtained an involuntary dismissal, Maule now moves for contractual attorney’s fees under CC § 1717.

First, the court agrees with Maule that she is the prevailing party. (See Moving Memo.,
Part III [citing cases holding that a defendant who obtains a dismissal after the plaintiff
fails to serve summons timely, or who fails to bring the case to trial within five years, is
a prevailing party entitled to contractual attorney’s fees].) Although the Bank argues
that Maule did not prevail because she only obtained a dismissal without prejudice, it
cites no legal authority for that position, and there is authority to the contrary. (See
Reply at 2:19-3:2.)

Thus, Maule is entitled to reasonable attorney’s fees under the credit card agreement.
In this regard, the court agrees with Maule that, although she only incurred fees at the
discounted rate of $206.50 per hour, her counsel is entitled to an award based on the
reasonable, customary rate of $275 per hour. (See Center for Biological Diversity v.
County of San Bernardino (2010) 188 Cal.App.4th 603, 619-620 [“The reasonable
market value of the attorney’s services is the measure of a reasonable hourly rate.[..t]
his standard applies regardless of whether the attorneys claiming fees charge nothing
for their services, charge at below-market or discounted rates, represent the client on a
straight contingent fee basis, or are in-house counsel”] [string citation omitted].) The
rate of $275 per hour is reasonable for similar work in the community. (See PKCM
th
Group v. Drexler (2000) 22 Cal.4 1084, 1095.)

As to the hours reasonably worked, the court has reviewed the Cable Declaration and
attachments and concludes that Maule’s counsel reasonably performed work on her
case for a total of 93.3 hours. Although Maule has requested fees for 104.9 hours of
work (excluding time spent preparing for and attending a hearing on the instant
motion), the court has reduced that amount by 11.6 hours. This reduction reflects
excessive time billed for the drafting and reviewing of emails and letters and, to a
lesser extent, the drafting of pleadings and other papers. That the amount at issue in
the case may have been less than the amount recoverable as attorney’s fees does not
alter the court’s conclusion.

Maule’s request for judicial notice is UNOPPOSED and GRANTED.

Maule’s objections to evidence are OVERRULED.

Conclusion

The motion for contractual attorney’s fees is granted for the amount of $25,657.50.

The minute order is effective immediately. No formal order pursuant to CRC 3.1312 or
further notice is required.