Motion for Attorney Fees

Tentative Ruling: Defendant Wells Fargo Bank, N.A.’s Motion for Attorney’s Fees is GRANTED. Wells Fargo is awarded $44,114.50 in fees, and $1,278 in costs, for a total award of $45,392.50, against Plaintiff Harold Haney. Moving party is to give notice.

Issues raised in Opposition: Plaintiff Haney has presented a number of arguments in his Opposition. None have merit, as discussed below.

First, Plaintiff offers several clearly inapplicable arguments. He argues fees cannot be awarded here because this case was not a “pure” SLAPP suit. (Opp., p. 5.) However, the request for fees here is not based on Code of Civil Procedure section 425.16, so neither the anti-SLAPP statute nor cases applying same are relevant here. He also argues fees and costs cannot be awarded in this case under Code of Civil Procedure section 128.5, based on “lack of merit alone.” (Opp., p. 5.) But this Motion is not based on section 128.5 (nor could it be, as that statute applies only to cases filed or proceedings commenced before 1995. (Code Civ. Proc., § 128.5(b)(1).) Plaintiff also claims this action was brought in good faith. But that is irrelevant, as fees are not sought in this action as a sanction: instead, the Motion is based upon contract. (Motion, pp. 5-6.)

Second, Plaintiff incorrectly contends no fee provision in any applicable contract allows Wells to recover fees and costs in this case. Not so. As Wells noted in its Motion, the Business Real Estate Financing Disclosure, which states it is part of the loan agreement, specifically includes an attorney fees provision. (Michie Decl., ¶2, Exh. 2, at p. 1 of 20 and p. 14 of 20.) The loan agreement thus expressly included a fee provision permitting an award of attorney fees and costs incurred “in connection with the enforcement of the Bank’s rights regarding your obligations under this Agreement.” Defending this action clearly falls within that description, as the Complaint sought, among other things, to enjoin Wells from foreclosing, and claimed Wells lacked authority to foreclose. (Complaint, ¶¶ 17, 20 and Prayer, at ¶¶ 3 & 4.)

The Deed of Trust also contains an attorney fees provision. (Michie Decl., Exh. 3, ¶5.6 , at p. 13 of 21.)

This provision also expressly provides for court costs and attorney fees “incurred by Trustee or Beneficiary pursuant to this Article V,” which is entitled “Default Provisions” and lists available rights and remedies in the event of default, including commencing a foreclosure action, and pursuing a non-judicial foreclosure. (Michie Decl., Exh. 3, p. 12, at ¶¶5(f)-(h).) Wells’ fees and costs incurred in defending this action again fall within that description, as the Complaint challenged Wells’ right to foreclose. (Complaint, ¶¶ 17, 20, Prayer, at ¶¶ 3 & 4.)

Third, Plaintiff incorrectly argues fees cannot be awarded here because the instant action sounded in tort, and thus does not trigger Civil Code section 1717. Under Code of Civil Procedure section 1032(b), a prevailing party is entitled as a matter of right to recover costs. Under section 1033.5(a)(10)(A), attorney fees authorized by contract are allowable as costs under section 1032. The “prevailing party” is the party with a net monetary recovery or for whom judgment is entered, or the party who recovers “greater relief” on the contract claim. (Code Civ. Proc., § §1032(a)(4); Civ. Code, §1717(b)(1).)

Under Civil Code section 1717(a), in an action on a contract, where the contract specifically provides that attorney fees and costs which are incurred to enforce that contract shall be awarded to the prevailing party, the party determined to be the party prevailing on the contract is entitled to reasonable attorney fees in addition to other costs. In determining whether an action is “on the contract” under section 1717, the proper focus is not on the nature of the remedy, but on the basis of the cause of action. (Kachlon v. Markowitz (2008) 168 Cal.App.4th 316, 347 [where purchasers claimed lender did not have right to foreclose as debt had been paid in full, purchaser’s declaratory relief, wrongful foreclosure and quiet title claims were “on” the deed of trust, as suit was directed at validity/enforceability of same]; Chinn v. KMR Property Management (2008) 166 Cal.App.4th 175, 182-183 [negligence claim based on landlord’s duty to protect tenant from foreseeable harm was related to tenancy, so fee provision in lease providing for fees in “any legal action or proceeding brought by either party to this agreement” authorized fee award to prevailing party].)

Here, the gravamen of the action was a challenge to Wells’ right to foreclose under the loan documents and Deed of Trust. It was thus an action “on the contract” for purposes of Civil Code section 1717. (Finalco, Inc. v. Roosevelt (1991) 235 Cal.App.3d 1301, 1308 [CA law is settled that a borrower’s obligation to pay attorney fees incurred in the collection of the note includes attorney fees incurred in defending against a challenge to the underlying validity of the obligation].)

In addition, if a contractual attorney fee provision is phrased broadly enough, it may support an award of attorney fees to the prevailing party on non-contract claims under Code of Civil Procedure section 1021, because parties may validly agree the prevailing party will be awarded attorney fees incurred in any litigation between themselves, whether such litigation sounds in tort or in contract. (Xuereb v. Marcus & Millichap, Inc. (1992) 3 Cal.App.4th 1338, 1341.) Here, the fee provisions at issue were stated with sufficient breadth to permit a fee award even if the claims at issue were deemed to sound only in tort. (Michie Decl., Exh. 2, at p. 14, and Exh. 3, at p. 12.)

Plaintiff’s reliance on Binns v. Westminster Memorial Park (2009) 171 Cal.App.4th 700 for a contrary conclusion is misplaced. First, Binns was ordered depublished as of May 20, 2009, and is thus not citeable authority. Nor did its holding require a contrary result here in any event. In Binns, the intended occupant of a reserved burial plot brought an action against a cemetery operator for negligent infliction of emotional distress and breach of contract. The trial court awarded damages for negligent infliction of emotional distress but denied attorney fees. The Fourth District, Division 3, Court of Appeal affirmed, finding the fee clause there did not apply because it was narrowly written to cover “legal proceedings for the enforcement of this agreement, or any of the terms and conditions hereof,” and thus did not apply to plaintiff’s tort claim.

Fourth, Plaintiff’s claim that an award of attorney fees violates California’s anti-deficiency statutes also lacks merit. Such claims have been expressly rejected by California courts. (See e.g. Jones v. Union Bank of California (2005) 127 Cal.App.4th 542, 546-47 [rejecting borrowers’ claim that award of fees after losing action to set aside foreclosure sale was precluded by antideficiency legislation]; Passanisi v. Merit–McBride Realtors, Inc. (1987) 190 Cal.App.3d 1496 [rejecting similar argument by borrower after losing action to enjoin foreclosure of a deed of trust].)

Finally, Plaintiff’s claim that the Memo of Costs was untimely and unverified also fails. Under CRC 3.1700, a party has 15 days after mailing of a notice of entry of judgment or dismissal to file a MOC, or 180 days from the entry thereof, whichever comes first. Here, Wells served Notice of Entry of Judgment on 2-3-14. Wells’ original MOC was filed on 9-9-13, and was thus at most premature. (Wells also filed a “Corrected” MOC on 3-5-14, which now attaches the worksheet: however, as that was untimely, it has not been considered here.) The original MOC also included, as discussed below, the necessary attorney verification on p. 1 thereof. Accordingly, as the prevailing party here, Wells may recover its attorney fees and other recoverable costs through this Motion under Code of Civil Procedure sections 1021, 1032, and 1033.5, and Civil Code section 1717.

Fees: A trial court “assessing attorney fees begins with a touchstone or lodestar figure, based on the ‘careful compilation of the time spent and reasonable hourly compensation of each attorney … involved in the presentation of the case.’ ” (Christian Research Institute v. Alnor (2008) 165 Cal.App.4th 1315, 1321, quoting Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131–1132.) The court tabulates the attorney fee touchstone, or lodestar, by multiplying the number of hours reasonably expended by the reasonable hourly rate prevailing in the community for similar work. (Ketchum, supra, at p. 1134; Serrano v. Priest (1977) 20 Cal.3d 25, 49.) “[T]he lodestar figure may be increased or decreased depending on a variety of factors, including the contingent nature of the fee award.” (Ketchum, supra, 24 Cal.4th at 1134.) A reasonable fee is determined in the trial court’s discretion. (PLCM Group v. Drexler (2000) 22 Cal.4th 1084.) The trial court is uniquely suited to determine the value of the services rendered. (In re Marriage of Keech (1999) 75 Cal.App.4th 860, 870. )

To determine reasonable attorney fees, the Court should consider the nature of the litigation, its difficulty, the amount involved, the skill required and employed in handling the matter, the attention given, the success of the attorney’s efforts, the intricacies and importance of the litigation, the labor and necessity for skilled legal training and ability in trying the cause, and the time consumed. ( Church of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628, 659, disapproved on other grounds in Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53.)

The party requesting fees has the initial burden of producing evidence sufficient to support the reasonableness of the billing rates requested. (See Davis v. City of San Diego (2003) 106 Cal.App.4th 893, 903.) If the moving party meets its burden, the burden shifts to the opposing party to produce admissible evidence sufficient to show the rates requested are not reasonable. (See Graciano v. Robinson Ford Sales, Inc. (2006) 144 Cal.App.4th 140, 155 [court erred in reducing rates where evidence of reasonableness of rate requested was undisputed]; Davis v. City of San Diego, supra, 106 Cal.App.4th at p. 904.)

Here, the hourly rate of $195/hour is reasonable, and for Mr. Fabozzi, at (if not well below) the prevailing community standard for attorneys with comparable experience and skill. The $195/hour rate for the more junior Ms. Weddington is reasonable for her experience. The hourly rate of $100/hr for experienced paralegal services is also reasonable.

The attorney and paralegal time at issue also appear proper in light of the motions filed, and the amount of work required for the case. Plaintiff has filed no opposition, and thus appears to concede same. The sum sought in the original motion, in the amount of $36,917.50 thus appears appropriate.

So too does the additional amount sought in the supplemental declaration. This sum was not included in the original notice of motion, nor was any amended notice filed, which raises some potential due process concerns. However, as the Supplemental Declaration was served well in advance of the hearing, and no opposition whatsoever has been filed, it appears reasonable to include those sums in the final award.

Costs: The Memo of Costs (“MOC”) was not included with this Motion. It was filed 9-9-13, with only the cover pages and no worksheet, so the Court has no information about just what costs were included (the MOC shows $1,055 for “filing and motion fees” and $55 for “Court-ordered transcripts.”) This is concerning as it does not allow the Court to evaluate the extent to which the claimed costs are proper.

Code of Civil Procedure section 1033.5(a) lists items allowed as recoverable costs, while 1033.5(b) lists items that are not allowed, except when expressly authorized by law: an item neither specifically allowed under (a) nor prohibited under (b) may be allowed or denied in the discretion of the court if certain requirements are satisfied. (Wagner Farms, Inc. v. Modesto Irr. Dist. (2006) 145 Cal.App.4th 765, 773; Code Civ. Proc., § 1033.5(c)(4).) In particular, the item “shall be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation” and “shall be reasonable in amount.” (Code Civ. Proc., § 1033.5(c)(2) & (c)(3).) Whether a cost item was reasonably necessary to the litigation presents a question of fact for the trial court. (Id. at 774, citing Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774. )

Here, since no specifics were provided as to the claimed costs, the Court cannot make such an evaluation here. However, initial verification on the MOC is sufficient to establish the reasonable necessity of the costs claimed; supporting documentation must be submitted only if costs have been put in issue by a motion to tax costs. (Wegner, Fairbank, Epstein, & Chernow, Cal. Prac. Guide: Civ. Trials & Evid.(The Rutter Group 2013), §17:131.1.) Cases also state that if items on a verified cost bill appear to be proper charges, they are prima facie evidence that the costs, expenses and services therein listed were necessarily incurred. (Wagner, supra, citing Oak Grove School Dist. v. City Title Ins. Co. (1963) 217 Cal.App.2d 678, 698, and Decoto School Dist. v. M. & S. Tile Co. (1964) 225 Cal.App.2d 310, 316–317. ) Therefore, as Wells’ counsel has attested to the cost categories here, and that those costs were “necessarily incurred in this case” (MOC, p. 1), Wells has met its initial burden to show the costs are recoverable. Since no Motion to Tax Costs was filed in response, Plaintiff has done nothing to suggest otherwise.

Accordingly, the Court will award the entire sum requested in the instant motion. Because there was a small [$10] error in moving party’s math, the Court will award fees and costs in the amounts of $44,114.50 and $1,278, respectively, for a total award of $45,392.50.