Case Number: KC058874 Hearing Date: May 15, 2019 Dept: O

ANALYSIS

The court will hear from the parties regarding Plaintiff Bayati’s motion to tax costs and take the matter under submission.

Plaintiff Bayati moves to tax costs.

If the underlying judgment includes an award of contract attorney fees, attorney fees incurred by the judgment creditor in enforcing the judgment are also recoverable as costs. (CCP § 685.040; see Miller v. Givens (1994) 30 Cal.App.4th 18, 20.)

Before the judgment is fully satisfied but not later than two years after the costs have been incurred, the judgment creditor claiming costs under this section shall file a memorandum of cost with the court clerk and serve a copy on the judgment debtor. (CCP § 685.070.) Service shall be made personally or by mail. (Id.) Service on attorney for the judgment creditor or the judgment debtor constitutes service on the judgment creditor or judgment debtor. (CC § 684.050.)

Here, Plaintiff does not dispute that the costs are associated with those in enforcing the underlying judgment against him, but contends that service of the memorandum of cost was improper, and therefore, Defendant waived its rights to recover costs and fees.

As Defendant stated in its Opposition, however, Mr. Millar never filed a substitution of attorney with this court during the relevant time period for the service of memo of cost. (Talkov Decl., ¶ 8.) Thus, Mr. Millar was presumptively the attorney of record for Plaintiff during this time. Under CCP § 684.050, service of the memorandum of cost on Plaintiff was proper.

Furthermore, the costs and fees requested are reasonable. Here, there were two separate methods of enforcement of the judgment debt: one was contesting Plaintiff’s Chapter 13 bankruptcy filing, the other involved state law remedies in enforcement.

The Court will hear from the parties on the following issues:

Did parties stipulate to email service as to the attorneys? (It was mentioned that Mr. Bayati did not have email, but did Mr. Millar and Mr. Talkov agree to service of documents by email?)

Did Mr. Millar represent Mr. Bayati from the time period between November 28, 2018 to December 9, 2018? (Mr. Millar claims in his motion to tax cost that he did not, but did not provide a declaration stating this; there are also a number of facts that seem contradictory throughout the Motion.)

Can Mr. Millar clarify the alleged conflict of interest he claims prevented him from representing Plaintiff in this matter until the collection issue was resolved?

Did Mr. Talkov attempt any other services to Mr. Bayati or Mr. Millar? And if so, please provide the timeline of each service.

Defendants Town Square M. Properties, LLC and William Musharbash’s motion for attorney fees is GRANTED. Attorney fees awarded in the adjusted amount of $1,000.00.

Defendants Town Square and Musharbash moves the court for attorney fees related to the judgment in the KC069904.

In any action on a contract, where the contract specifically provides that attorney’s fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney’s fees in addition to other costs. (Civ. Code § 1717(a).)

Here, ¶ 19 of the Ground Lease Agreement provides that the prevailing party may recover actual attorney’s fees reasonably incurred in the prosecution or defense of the action. Defendants were the prevailing party in having all the causes of actions dismissed against them and are entitled to recovery of attorney’s fees.

Plaintiff contends that Defendants did not timely file their memorandum of costs nor motion for attorney’s fees. Alternatively, Plaintiff contends the amount should be taxed because the amount is unreasonable.

Timeliness

The court disagrees that the memorandum of costs and motion for attorney’s fees were untimely. CRC 3.1700 states that a prevailing party who claims costs must serve and file a memorandum of costs within 15 days after the date of service of the notice of entry of judgment or dismissal by the clerk under Code of Civil Procedure section 664.5 or the date of service of written notice of entry of judgment or dismissal, or within 180 days after entry of judgment, whichever is first.[1]

Here, the court entered judgment on November 28, 2018. The Court did not send out a notice of entry of judgment, and from the court’s records, no notice of entry of judgment was sent by the parties either. Thus, the 15-day provision does not apply in this case. Instead, the 180-days applies, both for the memorandum of cost and motion for attorney’s fees. (See also CRC 3.1702, CRC 8.104.) Defendants filed their memorandum of costs on December 12, 2018, and their motion for attorney fees on January 24, 2019. This is well within the 180-day provision under CRC 3.1700. Furthermore, Defendants filed this present motion for attorney’s fees well within the guidelines found under CRC 3.1702, as only 57 days lapsed from the entry of judgment and the filing of the motion for attorney’s fees.

Thus, Defendants’ motion was timely, and they are entitled to attorney’s fees.

Reasonableness

However, the court agrees with Plaintiff that the amount requested in attorney’s fees is unreasonable.

To enable the trial court to determine whether attorney fees should be awarded and in what amount, an attorney should present: (1) evidence, documentary and oral, of the services actually performed; and (2) expert opinion, by the applicant and other lawyers, as to what would be a reasonable fee for such services. (Martino v. Denevi (1986) 182 Cal. App. 3d 553, 558-59.) In many cases, however, the trial court will be aware of the nature and extent of the attorney’s services from its observation of the trial proceedings and the pretrial and discovery proceedings reflected in the file. (Id. at 559.)

In California, testimony of an attorney as to the number of hours worked on a particular case is sufficient evidence to support an award of attorney fees, even in the absence of detailed time records. (Id.) 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 party, then the burden shifts to the opposing party to show that the items are unreasonable. (Decoto Sch. Dist. of Alameda County v. M & S Tile Co. (1964) 225 Cal. App. 2d 310, 316-17.)

A fee request that appears unreasonably inflated is a special circumstance permitting the trial court to reduce the award or deny one altogether. (Serrano v. Unruh (1982) 32 Cal.3d 621, 635 (Serrano).)

Here, Defendants’ counsels claim they spent about 60 hours drafting a demurrer. Plaintiff contends that this is unreasonable because the work was unnecessarily duplicative between two attorneys. Defendant contends that the issues were unique to warrant the amount of time spent on the demurrer.

The court is unpersuaded that the issues in this demurrer were so unique to entitle 60 hours of time accumulated between two attorneys that, from Defendants’ own proffered spreadsheet, appear to be duplicative in work; a job that, in this court’s experience, normally takes a lot less hours to handle. Furthermore, Defendants’ reply does not address the issue of duplicative work, merely repeating their contention that the issues are unique, and contending in their reply that “[h]opefully, granting this motion will help Bayati understand that it is time to stop litigating.” Attorney fees are retributive in nature, not punitive. Serrano, supra, 32 Cal.3d at 635 (“Prevailing parties are compensated for hours reasonably spent on fee-related issues”, emphasis added).) Thus, suggestion from Defendants that this court should uphold their padded legal fees as a means to punish Plaintiff is wholly improper. [2]

In fact, the court has discretion to reduce the award of an unreasonably inflated fee request or deny one altogether (Serrano, supra, 32 Cal.3d at 635 (holding the public policy of discouraging inflated fees from Brown v. Stackler (7th Cir. 1980) 612 F.2d 1057, 1059, which stated: “If … the Court were required to award a reasonable fee when an outrageously unreasonable one has been asked for, claimants would be encouraged to make unreasonable demands, knowing that the only unfavorable consequence of such misconduct would be reduction of their fee to what they should have asked in the first place. To discourage such greed, a severer reaction is needful.”).) Thus, the court finds Defendants’ request for attorney’s fees unreasonable enough to severely reduce their request to discourage their greed.

Thus, Defendants’ motion for attorney fees is GRANTED. Attorney fees awarded to Defendant in the adjusted amount of $1,000.00.

[1] Defendants in their Reply mention the case of Kaufman v. Diskeeper Corp. (2014) 229 Cal.App.4th 1, which they contend that the court held that CRC 8.104 states the deadline to file a memo of cost in an unlimited civil action is 60 days after notice of entry of judgment. This is incorrect: CRC 8.104 deals with time to appeal, not time to request pre-judgment costs/file memo of cost. However, Kaufman dealt with the issue of attorney’s fees, rather than a memo of cost. The court stated there that motion for attorney fees is governed by the CRC 8.104 deadline to appeal. (See CRC 3.1702.)

[2] The requested $6,000 to draft the motion for attorney’s fees is also unreasonable. As Plaintiff pointed out, this would amount to 25 hours of work for a motion. A motion of this length and simplicity should have been completed 10 hours at most including the reply and time spent at hearing; 25 hours is completely outrageous in my opinion.