Case Number: BC378085 Hearing Date: May 27, 2014 Dept: 46

Case Number: BC378085
LAWYERS TITLE & MORTGAGE GROUP VS LADEN L PALABOD
TENTATIVE RULING [Posted5/23/2014 12:02 PM] Motion is GRANTED, but the amount of the fees awarded is reduced for the sum requested to $5,125.

Defendant Palabod is entitled to an award of attorney’s fees pursuant to CCP §1032(a)(4) and Civil Code §1717 and well as CCP §§685.040, 685.070, 685.095 and 699.080 as the moving party has shown to a preponderance of evidence that post-judgment costs, including attorney’s fees, were incurred in enforcing the judgment.

1. Legal basis for Award of Attorney’s Fees

Defendant meets the criteria for an award of attorney’s fees as Palabod is the prevailing party to the litigation as defined by CCP § 1032(a)(4). Judge Murphy granted the MSJ on 3/11/10 and the judgment filed on 4/1/10 states “that Plaintiff shall recover nothing from Defendant, and Defendant shall have Judgment against Plaintiff.”

Attorney’s fees are awardable to Palabod pursuant to Civil Code 1717 and ¶15 of the “Residential Listing Agreement” (Supplemental Brief, Exhibit “B”), which states as follows:

“15. ATTORNEY FEES: In any action, proceeding or arbitration between Seller and Broker regarding the obligation to pay compensation under this Agreement, the prevailing Seller or Broker shall be entitled to reasonable attorney fees and costs from the non-prevailing Seller or Broker…”

Although Palabod did not execute the “Residential Listing Agreement,” Palabod may still enforce ¶15 of the agreement. Reynolds Metals Co. v. Alperson (1979) 25 C.3d 124, 128. [“Section 1717 was enacted to establish mutuality of remedy where contractual provision makes recovery of attorney’s fees available for only one party…[i]ts purposes require section 1717 be interpreted to further provide a reciprocal remedy for a nonsignatory defendant, sued on a contract as if he were a party to it, when a plaintiff would clearly be entitled to attorney’s fees should he prevail in enforcing the contractual obligation against the defendant;”] Abdallah v. United Savings Bank (1996) 43 C.A.4th 1101 [“A defendant that has signed a contract providing for attorney fees is generally entitled to fees if it prevails against a nonsignatory plaintiff in an action on the contract. (See Real Property Services Corp. v. City of Pasadena (1994) 25 C.A.4th 375, 380-381 and cases cited) Fred Abdallah’s status as a nonsignatory is irrelevant; the only question is whether he would have been entitled to his fees if he had prevailed. (Id. at p. 382). Since it is undisputed that Fred Abdallah would have been entitled to fees if he had been a prevailing party, there is no question that he is liable for fees as a losing party.” Id. at 1111.]

2. Amount of Attorney’s Fees

“[T]rial courts have broad discretion in determining the amount of a reasonable attorney’s fee award.” Meister v. Regents of University of California (1998) 67 C.A.4th 437, 452. “A trial court’s attorney fee award will not be set aside ‘absent a showing that it is manifestly excessive in the circumstances.’ (Children’s Hospital & Medical Center v. Bonta (2002) 97 C.A.4th 740, 782).” Raining Data Corp. v. Barrenechea (2009) 175 C.A.4th 1363, 1375.

“In determining the amount of reasonable attorney fees to be awarded under a statutory attorney fees provision, the trial court begins by calculating the ‘lodestar’ amount…[t]he ‘lodestar’ is ‘the number of hours reasonably expended multiplied by the reasonable hourly rate.’ (PCLM Group, Inc. v. Drexler (2000) 22 C.4th 1084, 1095). To determine the reasonable hourly rate, the court looks to the ‘hourly rate prevailing in the community for similar work.’ (Ibid.) Using the lodestar as the basis for the attorney fee award ‘anchors the trial court’s analysis to an objective determination of the value of an attorney’s services, ensuring that the amount awarded is not arbitrary. [Citation.].’ (Ibid.).” Bernardi v. County of Monterey (2008) 167 C.A.4th 1379, 1393-1394.

“In California, an attorney need not submit contemporaneous time records in order to recover attorney fees…[t]estimony 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. (Glendora Community Redevelopment Agency v. Demeter (1984) 155 C.A.3d 465, 470-471; Margolin v. Regional Planning Com. (1982) 134 C.A.3d 999, 1006).” Martino v. Denevi (1996) 182 C.A.3d 553, 559. “An experienced trial judge is in a position to assess the value of the professional services rendered in his or her court. (Serrano v. Priest (1977) 20 C.3d 25, 49). Wershba v. Apple Computer, Inc. (2001) 91 C.A.4th 224, 255. “A trial judge’s determination of a reasonable amount of attorney fees will not be disturbed on appeal unless the appellate court is convinced that it is clearly wrong.” Id.

The fees requested are partially unreasonably excessive, particularly the 6.75 hours charged for drafting this motion, 4 hours charged for reviewing any opposition and preparing a reply brief and 4 hours for attending the hearing. Therefore the court awards a reduced fee based upon the court’s assessment of the reasonable amount of hours being 5 hours and the reasonable hourly rate @ $400/hr., such that the total fees awarded is reduced to $5,125.00.

IT IS SO ORDERED:

Frederick C. Shaller, Judge