17-UDL-00901 TW REAL ESTATE INVESTMENT CO. vs. WOMEN’S STARTUP

LAB, INC., et al.

TW REAL ESTATE INVESTMENT CO. TODD ROTHBARD

WOMEN’S STARTUP LAB, INC. KEVIN HERMANSEN

Motion for attorneys fees

TENTATIVE RULING:

The Motion for Attorney Fees brought by Defendant Women’s StartUp Lab, Inc. is granted in part. The Request for Judicial Notice made by Plaintiff TW Real Estate Investment Co. is denied. The Objection filed by Plaintiff is overruled.

Objection to Reply. Plaintiff objects that Defendant’s reply was late-filed. It was. However, the Court exercises its discretion to consider the reply brief.

Request for Judicial Notice. Plaintiff requests judicial notice of an “Arbitration Advisory 2016-02” document pursuant to Evidence Code §§ 452 and 453. Plaintiff provides no analysis as to why this document is judicially-noticeable and fails to pinpoint the applicable subsection under which judicial notice of this document could be taken. Moreover, the document expressly states that it “ha[s] not been adopted or endorsed by the State Bar’s Board of Trustees and do[es] not constitute the official position or policy of the State Bar of California. RJN (f: 02/16/18), Ex. 1. As such, the Request for Judicial Notice is denied.

Merits of Motion. The gravamen of the instant unlawful detainer case was that Defendant held over in tenancy, which sounds in tort. Drybread v. Chipain Chiropractic Corp. (2007) 151 Cal.App.4th 1063. Plaintiff’s primary aim in the unlawful detainer action was to obtain possession of the premises, but Plaintiff ultimately dismissed its case.

The parties had a lease agreement that specified as follows:

40. ATTORNEY FEES: In any action or proceeding arising out of this Agreement, the prevailing party between Landlord and Tenant shall be entitled to reasonable attorney fees and costs, except as provided in paragraph 39A [which deals with mediation].

Motion for Attorney Fees (f: 01/29/17), Ex. A, ¶ 40 (emphasis added). This clause is broad enough to encompass claims that sound in tort. See Drybread v. Chipain Chiropractic Corp. (2007) 151 Cal.App.4th 1063. As such, the Court finds that Defendant was the prevailing party entitled to attorney fees. Id.

Plaintiff disputes the “reasonableness” of the fees sought—using arguments that Defendant has block-billed or padded its billing. A review of the billing provided by Defendant shows that the vast majority of billing entries are for less than one hour of time and that those small time increments correspond with the overall ebbs and flows of the litigation in this case. Thus, the Court finds that those time entries in increments of approximately one hour or less are reasonable. The Court also finds the larger billing entries reasonable, as follows:

· Sept 28, 2017 (Attorney Hermansen)—1.6 hours preparing a motion to quash is reasonable.

· Oct 30, 2017—drafting an ex parte application to set aside a default is reasonable.

· Nov 15, 2017 (Attorney Hermansen)—3.2 hours drafting discovery requests (including Form Interrogatories, Special Interrogatories, Requests for Admission, Requests for Production of Documents, and a Deposition Notice) is reasonable.

· Nov 19-21, 2017(Attorney Bramzon)—While these time entries did require travel time from Los Angeles to San Mateo for a status conference, this time was also connected with the taking of the deposition of Zhangmei Huang, which required a Mandarin interpreter. Thus, while attending a status conference may have been more economically conducted via CourtCall, it appears that counsel worked to be efficient by conducting a deposition in this county at the same time. As such, this travel time, and the accompanying time attending the status conference and preparing and conducting the deposition is reasonable.

· Nov 27, 2017—1.4 hours reviewing over 665 pages of discovery responses is reasonable, particularly in light of the fact that a later motion for summary judgment was filed and appears to have triggered the ultimate dismissal of this case.

· Dec 14, 2017 (Attorney Hermansen)—These time entries for travel time from Los Angeles to San Mateo were for a settlement conference, where personal attendance is required. Cal. Rules of Court, rule 3.1380 (b). As such, the fees for this time are reasonable.

· Dec 26-27, 2017 (Attorney Hermansen)—A combined 6.5 hours for researching legal issues and drafting a motion for summary judgment is reasonable, particularly in light of the fact that a later motion for summary judgment was filed and appears to have triggered the ultimate dismissal of this case.

· Dec 29, 2017 (Attorney Hermansen)—A combined 3.0 hours of trial preparation is reasonable, particularly in light of the principle that “[t]he amount of litigation… typically lies in the plaintiff’s hands: having litigated the matter tenaciously, [plaintiff] ‘ “cannot… be heard to complain about the time necessarily spent by the [defendant] in response’.” Premier Medical Management Systems, Inc. v. California Ins. Guarantees (2008) 163 Cal.App.4th 550, 564. Here, Plaintiff waited until the morning of trial on Jan 02, 2018 to voluntarily dismiss its case, which essentially forced Defendant’s hand in needing to prepare for trial.

· Late January/Early February 2018 (Attorney Hermansen)—A combined 3.9 hours opposing a motion to strike and drafting the present motion for attorney fees is reasonable.

· Mar 02, 2018 (Attorney Bramzon)—This anticipated time is for attending the hearing on the instant motion for attorney fees. Without more, it appears that this hearing does not require in-person attendance, and can be done more economically via CourtCall. As such, the travel time for attending this hearing (4.5 hours) shall be reduced to 0 (noting that the time for appearing in court is itemized separately at 1.5 hours).

Finally, the parties dispute the reasonableness of the hourly rates being charged. Attorney Bramzon charges $600 per hour. Attorney Hermansen charges $350 per hour. A reasonable hourly rate is normally determined by reference to rates charged by attorneys of similar skill and experience in the relevant community (PCLM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095), but additional factors such as the attorney’s skill and experience, the nature of the work performed, the relevant area of expertise, and the attorney’s customary billing rates may also be taken into consideration (Flannery v. California Highway Patrol (1998) 61 Cal.App.4th 629, 632-633; see also Stratton v. Beck (2017) 9 Cal.App.5th 483, 496. Defendant has produced the following evidence:

· a declaration of one Dennis Block (filed in a different unlawful detainer matter in Los Angeles) affirming that hourly rates for attorneys handling landlord-tenant matters in Los Angeles range from $350-400 per hour as of 2015 (Motion for Attorney Fees (f: 01/29/17), Ex. B);

· minutes from another Los Angeles case in which a trial court awarded attorney fees ranging from $325 to $680 per hour in early 2017 for attorneys from the Legal Aid Foundation of Los Angeles for an unlawful detainer matter (Motion for Attorney Fees (f: 01/29/17), Ex. C); and

· minutes from another Los Angeles case in which a trial court awarded attorney fees ranging from $350-500 per hour in early 2017 for attorneys from BASTA, Inc. (which is a California public benefit corporation founded and run by Attorney Bramzon) (Motion for Attorney Fees (f: 01/29/17), Ex. D).

Notably, the higher rates in these examples usually are linked to very limited time increments (i.e. the senior partners monitoring these cases keep their expensive time to a minimum), as follows:

· Exhibit C—the award of an hourly rate of $680 was for 0.5 hours in light of a bill with a rough total (given that the court cut some of the hours from the billing) of 129 hours.

· Exhibit D—the approval of attorney fees was for 12.5 hours at $500.00, 26 hours at $450, and 5.7 hours at $350.

In light of these numbers, the Court finds that the hourly rate of $350 for the time of Attorney Hermansen was reasonable.

However, the rate of $600 for Attorney Bramzon appears excessive. The instant case differs in that, unlike situations where higher rates of $680 per hour were approved in cases where that rate represented less than 1% of the total attorney time expended on the case, here, Attorney Bramzon’s 29.7 hours represent about 36% of the total attorney time spent on this case. Thus, while Attorney Bramzon appears to have considerable skill and experience, the nature of the work he was performing here was not the kind of high-value oversight work of a senior attorney monitoring the case in small and economical increments, but rather that of lead counsel taking a more active (and thus time-intensive) role in the litigation. The Court finds this use of such expensive attorney time unreasonable in terms of the overall time required to litigate the case. As such, the Court reduces the hourly rate for Attorney Bramzon’s time to $425 per hour, and for Attorney Hermansen to $325 per hour..

Appropriately reduced, the award of attorney fees is as follows:

· Attorney Bramzon – $ 425/hour – 29.7 hours – $12,622.50

· Attorney Hermansen – $325/hour – 52.5 hours – $17,062.00

· Total: $29,685.00

Statement of Decision. Defendant requested a statement of decision pursuant to C.C.P. § 632. Under that statute,

The statement of decision shall be in writing, unless the parties appearing at trial agree otherwise; however, when the trial is concluded within one calendar day or in less than 8 hours over more than one day, the statement of decision may be made orally on the record in the presence of the parties.

C.C.P. § 632. As the instant matter falls within these timelines, Defendant shall prepare the Order and statement of Decision consistent with this Tentative Ruling.