Case Number: KC067894 Hearing Date: November 27, 2018 Dept: O

Defendants and Cross-Complainants Nadine Johnson, Trustee of the Survivor’s Trust Created Under the Johnson Family Trust; Scott D. Johnson; Kirk Johnson; Kathryn M. Waters; John A. Cullen; Roger Cullen; and Beverly Cullen (“Defendants”) motion to determine the amount of attorney’s fees awarded in the judgment is GRANTED in part, and DENIED in part. Defendants are entitled to $84,547.70 in attorney’s fees.

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. (See CC § 1717(a).)

This case involved the interpretation of two leases between the lessors and landowners (defendants) of the land under a mobile home park and the operator of the mobile home park, Plaintiff Foothill Terrace LTD (“Plaintiff”). The two leases were executed in 1970, and assigned to plaintiff in 1986. Under the terms of the leases, “the prevailing party shall be entitled to receive from the other party all costs and expenses, including reasonable attorney’s fees incurred . . . “ (See Plaintiff’s Opposition to Defendants’ Motion to Determine the Amount of Attorney’s Fees Awarded in Judgment (“Plaintiff’s Opposition”) at 2.) On June 29, 2018, the Court entered judgment and provided that defendants were entitled to reasonable attorney’s fees. (See Defendants’ Motion to Determine the Amount of Attorney’s Fees Awarded in Judgement at 3-4.) As a result, defendants were the prevailing parties and are entitled to the recovery of reasonable attorney’s fees.

Reasonableness

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 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. at 559.) 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.)

Here, defendants have requested $116,035.15 in attorney’s fees.

In opposition, plaintiff requests reductions for the following categories:

Secretarial/Clerical Tasks:

Secretarial time is not compensable as it is part of an attorney’s overhead. (See e.g. Jadwin v. County of Kern (E.D. Cal. 2011) 767 F.Supp.2d 1069, 1113; see also Davis v. City of San Francisco (9th Cir. 1992) 976 F.2d 1536 (billing for clerical/secretarial tasks is improper, even if performed by a lawyer).)

The Court has reviewed the yellow highlighted entries in Exhibits 1 and 2 of the Declaration of Maureen A. Hatchell Levine in Support of Plaintiff’s Opposition, and finds that the entries are indeed clerical tasks that were billed to the client at an attorney rate. In reply, defendants do not address the specific entries, but merely state that “Johnson and Cullen were not billed for secretarial work.” (See Defendant’s Reply to Plaintiff’s Opposition at 2.) Such a reply is wholly inadequate as it does not address plaintiff’s objections or substantiate the validity of the attorney service. Accordingly, the Court declines to award $15,009.45 in attorney’s fees that appear to be clerical/secretarial tasks.

Unsuccessful Motions:

Plaintiff requests a reduction of $4,096.40 for work pertaining to defendants’ motion for judgment on the pleadings and $7,954.10 for work pertaining to two of defendants’ discovery motions, all of which were denied.

The Court agrees with plaintiff that the motions were unnecessary. Defendants brought a motion for judgment on the pleadings directed at plaintiff’s affirmative defenses in its answer to the cross-complaint. Affirmative defenses are routinely filed with minimal facts, and even conclusory allegations of fact are acceptable. In this Court’s experience, Answers are rarely challenged, and plaintiff’s Answer is no different and is typical of the Answers that this Court sees. Defendants’ discovery motions were also unnecessary. Defendants contend that because sanctions were not imposed, defendants’ motions were therefore brought with substantial justification. The Court made no such finding. In fact, based on the content of the motions alone, this Court tentatively imposed sanctions against defendants because the motions were unnecessary. Just because sanctions were retracted after oral argument does not mean that the motions were brought with substantial justification; they could have been retracted for any number of reasons. Accordingly, the Court declines to award $12,050.50 in attorney’s fees for the unnecessary motions.

Stipulation and Order to Set Aside Defendants’ default:

The Court declines to award $577.50 in attorney’s fees due to defendants’ own default.

Duplicative or Excessive Work:

Plaintiff seeks a reduction of $4,427.50 for billing which appears duplicative or excessive. The Court has reviewed the entries referenced in Paragraph 14 in the Declaration of Maureen A. Hatchell Levine in Support of Plaintiff’s Opposition and finds that the service is duplicative or excessive. Additionally, defendants’ reply does not address these objections. Accordingly, the Court declines to award $4,427.50 in attorney’s fees that are duplicative or excessive.

Based on the foregoing, the motion is GRANTED in part, and DENIED in part. Defendants are entitled to $84,547.70 in attorney’s fees, which reflects a reduction of $31,487.45 from defendants’ request of $116,035.15.