Case Number:?BC617090????Hearing Date:?July 25, 2017????Dept:?46
Case Number:??BC617090
BETTY MINTZ VS STEVE F SHELDON ET AL
Filing Date:??04/14/2016
Case Type:??Other Intentional Tort-notPI/WD/PD (General Jurisdiction)
Status:??Other Judgment 03/07/2017
7/25/2017
Motion for Attorney Fees
TENTATIVE RULING
Motion for Attorney?s Fees is GRANTED. Fees are awarded in the sum of $32,015 which represents the attorneys fee plus motion fee ($350 x 91.3 + $60 = $32,015) in favor of Plaintiff and against Defendant pursuant to Welf. & Inst. Code ???15610.30 & 15657.5. See discussion. Judgment may be amended to insert these fees as an award in favor of Plaintiff and against Steven Sheldon.
DISCUSSION
CCP ?1021 provides: ?Except as attorney’s fees are specifically provided for by statute, the measure and mode of compensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties; but parties to actions or proceedings are entitled to their costs, as hereinafter provided.?
CCP ? 1032(a)(4), in part, defines a ?prevailing party? as ?the party with a net monetary recovery, a defendant in whose favor a dismissal is entered, a defendant where neither plaintiff nor defendant obtains any relief, and a defendant as against those plaintiffs who do not recover any relief against that defendant?? Subsection (b) provides that ?[e]xcept as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.?
CCP ??1033.5 states in relevant part:
?(a) The following items are allowable as costs under Section 1032:
?
(10) Attorney’s fees, when authorized by any of the following:
(A) Contract.
(B) Statute.
(C) Law.?
Welf. & Inst. Code ??15657.5 reads in relevant part as follows:
?(a) Where it is proven by a preponderance of the evidence that a defendant is liable for financial abuse, as defined in Section 15610.30, in addition to compensatory damages and all other remedies otherwise provided by law, the court shall award to the plaintiff reasonable attorney’s fees and costs. The term ?costs? includes, but is not limited to, reasonable fees for the services of a conservator, if any, devoted to the litigation of a claim brought under this article.?
?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.? (1 Witkin, Cal. Procedure (3d ed. 1985) ? 165, p. 192;Hensley v. Eckerhart?(1983) 461 U.S. 424, 433, 437 [76 L.Ed.2d 40, 50, 53, 103 S.Ct. 1933]; see?Los Angeles v. Los Angeles-Inyo Farms Co. (1933) 134 Cal.App. 268, 274 [25 P.2d 224].) ?In many cases 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.? (In re Marriage of Cueva,?supra., 86 Cal.App.3d at p. 301,fn. omitted.) However, in the absence of such crucial information as the number of hours worked, billing rates, types of issues dealt with and appearances made on the client’s behalf, the trial court is placed in the position of simply guessing at the actual value of the attorney’s services. That practice is unacceptable and cannot be the basis for an award of fees.??Martino v. Denevi?(1986) 182 C.A.3d 553, 558-559.
?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.? (Citation.)?To determine the reasonable hourly rate, the court looks to the ?hourly rate prevailing in the community for similar work.? (Citation.) 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.)???Bernardi v. County of Monterey?(2008) 167 C.A.4th 1379, 1393-1394.
?Some federal courts require that an attorney maintain and submit ?contemporaneous, complete and standardized time records which accurately reflect the work done by each attorney? in support of an application for attorney fees?[i]n 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.??Martino v. Denevi?supra, 182 C.A.3d at 559. ?[A]n award of attorney fees may be based on counsel’s declarations, without production of detailed time records.??Raining Data Corp. v. Barrenechea?(2009) 175 Cal.App.4th 1363, 1375. ?[P]adding in the form of inefficient or duplicative efforts is not subject to compensation.??Premier Medical Management Systems, Inc. v. California Insurance Guarantee Association?(2008) 163 C.A.4th 550, 556 (internal quotations and citations omitted).
Plaintiff provides detailed billing records. (Declaration of Robert G. Klein [hereinafter ?Klein Dec.? Exhibit 2). Plaintiff requests an hourly rate of $450 for Robert G. Klein of the Law Offices of Robert G. Klein for a total of 91.3 hours worked, plus the $60 filing fee for this motion, resulting in a total request of $41,145.00. (Weber Dec., ??25).
Sheldon first argues that no fee award should be given because an alleged breach of professional ethics on the part of Mr. Klein with reference to a written settlement proves that the case did not have to go to trial. The logic of this argument is hard to follow; the alleged breach of ethics involved disclosure of the offer to third parties. On its face, this has nothing to do with the merits of the case and the necessity of a trial; Sheldon offers no authority in support of complete denial of fees in such a situation. This argument is particularly unpersuasive in light of the fact that the fee shifting statute is primarily designed to protect plaintiffs by ensuring that they can hire counsel, not to reward counsel for good (and/or talented) behavior.
Sheldon next argues that the hours billed should be cut by ?, because the elder abuse claim is the only one of the original four with a statutory right to fees attached. However, the resolution of the constructive trust and quiet title claims depended on the elder abuse claim; once that was resolved, resolution of those two claims was nearly mechanical. And the conversion claim was so closely intertwined with the elder abuse claim that an apportionment is impractical. For a case that was litigated both thoroughly and expeditiously, proceeding from complaint through summary judgment motion and two-day bench trial in just over 8 months, 91.3 hours is not unreasonable.
Sheldon next argues that the hours billed should be cut in half, since Plaintiff did not prevail against Deborah Sheldon. There is no factual basis for such an apportionment. The work done with regard to both Defendants, who are husband and wife, was substantially overlapping, and does not represent duplicate work which should be separately identified and billed. No entry identifies work done specifically with regard to Deborah Sheldon, though, as Steve Sheldon points out, there are at least 6 entries which refer only to him. (Klein Dec. Exhibit 2). Separating out the work done solely for Deborah Sheldon, if any, would be quite difficult and result in only a minor reduction in hours. Requiring Plaintiff to Separately account for time spent on work solely done for Deborah Sheldon would be unreasonable. If the court were to make the attempt now, it would be pure guesswork.
The court disagrees regarding Sheldon?s argument regarding ?block-billing.? Sheldon?s own cited authority states, ?[b]lockbilling, while not objectionable per se in our view, exacerbated the vagueness of counsel’s fee request, a risky choice since the burden of proving entitlement to fees rests on the moving party.??Christian Research Institute v. Alnor?(2008) 165 C.A.4th?1315, 1325. In other words, block-billing is only disfavored insofar as it contributes to vagueness. The billing records here are not vague on the level of the records at issue in?Alnor, where ?[a]t least 20 entries described the trial-level work for which counsel sought fees as merely ?further handling.? And more than one-third of the billing entries submitted for counsel’s trial-level work made no reference at all to the motion to strike or otherwise designated the hours expended as anti-SLAPP work.??Id.?Here, the itemization of hours is clear as to what was done.
Finally, Steven Sheldon argues against the use of a lodestar multiplier. This argument is somewhat confusing, because the motion does not request a multiplier. The confusion has apparently arisen because, although Plaintiff?s counsel offered his services to her at an alleged ?discount rate? of $250/hour, he claims that the reasonable value of those services is actually $450/hour. (Motion p. 5:17-22; Klein Dec. ??25). Plaintiff has not asked for a multiplier; she has asked for a higher hourly rate than she had originally agreed to pay.
With regard to the request for a higher lodestar award than actually billed by counsel, Plaintiff has cited authority in support of this request. In?Chacon v. Litke?(2010) 181 C.A.4th?1234, 1258-60, the Court of Appeal affirmed an award of attorney?s fees at an hourly rate greater than that originally contained in the retainer agreement:
?Litke’s real complaint is that the trial court ?enhanced? the lodestar by awarding McCurdy $350 per hour as a reasonable market rate, when McCurdy’s fee agreement with the Chacons provided for a reasonable hourly rate of $300 per hour. In fact, the trial court rejected the Chacons’ requests for a 1.5 multiplier enhancement of the fee award based on contingent risk, the ?excellent? results achieved in the case, and the public service the Chacons performed in enforcing the Ordinance. The court did not believe any of these factors warranted an enhancement in the circumstances, and the Chacons’ appeal of the award has been dismissed at their request.
The trial court also rejected the Chacons’ argument that McCurdy’s reasonable hourly rate was $400 and instead, ?[a]fter reviewing all arguments and evidence submitted by the parties, including numerous expert declarations and the hourly rate set forth in [the Chacons’] fee agreement,? found that McCurdy’s reasonable hourly rate was $350. Litke does not dispute that $350 an hour is a reasonable market rate for the services provided by an attorney of McCurdy’s experience. Rather, he argues that the fee was excessive for the sole reason that it exceeded the amount the Chacons and McCurdy agreed to be a reasonable hourly rate in their fee agreement. He is wrong.
?The reasonable market value of the attorney’s services is the measure of a reasonable hourly rate. [Citations.] This standard applies regardless of whether the attorneys claiming fees charge nothing for their services, charge at below-market or discounted rates, represent the client on a straight contingent fee basis, or are in-house counsel. [Citations.]? (Pearl, Cal. Attorney Fee Awards,?supra,?? 12.26, pp. 358?359.) Clearly, the court here did not abuse its discretion in awarding $350 per hour as a reasonable hourly rate for McCurdy.?
The requested fee award for a sum greater than the contracted amount of $250 per hour is reasonable and also appropriate under the?Chacon?case. However, for the type of work performed in this case, the court finds that a rate of $350/hour is reasonable.
Defendant does not attack Plaintiff?s claimed rate at any point, electing rather to attack Plaintiff?s claimed hours. The claimed hours are reasonable for the nature of the case and in particular its accelerated handling through trial.
The request for attorney?s fees is therefore reduced to
This rate results in a total award of $32,015.00, which is a reasonable sum for the prosecution of this matter all the way through a two-day bench trial.
For the foregoing reasons, the motion is GRANTED, and fees and costs of motion awarded in the amount of $32,015.00.