Kohanim v. Namvar
Filed 9/19/13
Kohanim v. Namvar CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
MEHRDAD KOHANIM et al.,
Plaintiffs
and Appellants,
v.
EILEL NAMVAR et al.,
Defendants
and Respondents.
B242091
(Los Angeles County
Super. Ct. No. BC425817)
APPEAL
from order of the Superior Court of
Steven J. Kleifield, Judge. Affirmed.
Krane
& Smith, Marc Smith, Douglas L. Day and Cynthia Hodes for Plaintiffs and Appellants.
Ervin
Cohen & Jessup, Geoffrey M. Gold and Mathew J. Eandi for Defendant and
Respondent Mousa Namvar.
Epport,
Richman & Robbins, Steven C. Huskey for Defendant and Respondent Eilel
Namvar.
_____________________
Plaintiffs
and Appellants Mehrdad Kohanim (Kohanim) and Morad Mottahedeh and Manijeh
Mottahedeh (the Mottahedeh Plaintiffs) (collectively Plaintiffs) jointly sued
Defendants Mousa Namvar (Mousa) and Eilel Namvar (Eilel)
under two separate personal guaranties for the payment of two loans made to
non-party Namco Capital, Inc. (Namco).
After Plaintiffs failed to comply with the trial court’s order to post a
bond pursuant to Code of Civil Procedure section 1030, the court dismissed the
action and entered judgment for Defendants.
Defendants jointly moved for an award of $159,850 in attorney fees
pursuant to Civil Code section 1717 based on attorney fee clauses in one of the
guaranties and both of the underlying promissory notes. The trial court awarded Defendants attorney
fees against Plaintiffs, jointly and severally, in the reduced amount of
$129,850. Plaintiffs challenge the fee
award on the grounds that (1) the Mottahedeh Plaintiffs cannot be liable for
attorney fees because the guaranty upon which they sued does not contain an
attorney fee clause; (2) Plaintiffs cannot be held jointly and severally liable
for the entire fee award because the Mottahedeh Plaintiffs were not parties to
the causes of action asserted by Plaintiff Kohanim, and vice versa; and (3) the
evidence did not support the amount of the fee award. We find no error in the trial court’s award
of attorney fees and, therefore, affirm.
FACTUAL BACKGROUND
1.
Plaintiffs’ operative complaint alleges that, on May 27, 1997, Namco executed a written promissory note in favor of
Rahmatollah Kohanim in the sum of $435,000 (the Kohanim Note). In connection with the Kohanim Note,
Defendants, together with non-party Ezri Namvar, executed a “Guaranty of
Payment of Promissory Note†guaranteeing payment on demand of all principal and
interest due and owing under the Kohanim Note in the event of default by Namco
(the Kohanim Guaranty).
Both the Kohanim Note and Kohanim Guaranty contain
attorney fee clauses requiring payment of all costs and expenses, including
attorney fees, incurred by the holder of the Kohanim Note in connection with
collection of the debt or enforcement of the holder’s rights under the Kohanim
Note and Kohanim Guaranty.
On June 18, 1998, Rahmatollah Kohanim assigned the Kohanim Note and
Kohanim Guaranty to Plaintiff Kohanim.
On or about August 1, 2008, Namco defaulted on the Kohanim Note. At the time, the balance due on the Kohanim
Note was $250,000, together with accrued interest.
Plaintiff Kohanim demanded Defendants pay the
outstanding balance pursuant to the Kohanim Guaranty. Defendants refused.
2.
On June 4, 2003, Namco executed a written
promissory note in favor of the Mottahedeh Plaintiffs in the sum of
$240,312.49 (the Mottahedeh Note). The
same day, Defendant Eilel executed and delivered an undated check in the amount
of $240,000, payable to the Mottahedeh Plaintiffs, which Defendant Eilel
allegedly represented was his personal guaranty of the Mottahedeh Note (the
Mottahedeh Guaranty).
The Mottahedeh Note contains an attorney fee clause
requiring the borrower to pay “all costs and expenses incurred or payable by
Holder in connection with any litigation brought for the enforcement or
collection of this Note, including court costs and attorneys’ fees and costs
actually incurred.†The Mottahedeh
Guaranty contains no attorney fee clause.
On or about August 1, 2008, Namco defaulted on the Mottahedeh Note. Because Namco allegedly had been making
interest-only payments, the Mottahedeh Plaintiffs claimed the entire principal
balance of 240,312.49 was due on the Mottahedeh Note, together with accrued
interest.
The Mottahedeh Plaintiffs demanded Defendant Eilel pay
the outstanding balance pursuant to the Mottahedeh Guaranty. Defendant Eilel refused.
PROCEDURAL HISTORY
1.
Defendants Seeking Damages and Attorney Fees Pursuant to the Promissory Notes
and Guaranties
On November 12, 2009, Plaintiffs jointly filed their
initial complaint against Defendants asserting separate causes of action for
breach of the Kohanim Guaranty and breach of the Mottahedeh Guaranty. Plaintiffs were jointly represented by the
same counsel, Krane & Smith. After
multiple amendments to the pleadings in response to a series of demurrers by
Defendants, Plaintiffs filed their operative Third Amended Complaint on
November 24, 2010.
In each iteration of their complaint, Plaintiffs
asserted the same four causes of action:
(1) breach of the Kohanim Guaranty by Plaintiff Kohanim against both
Defendants; (2) money due by Plaintiff Kohanim against both Defendants; (3)
breach of the Mottahedeh Guaranty by the Mottahedeh Plaintiffs against
Defendant Eilel; and (4) money due by the Mottahedeh Plaintiffs against
Defendant Eilel. The first and second
causes of action were asserted by Plaintiff Kohanim only. The third and fourth causes of action were
asserted by the Mottahedeh Plaintiffs only.
With respect to the first cause of action for breach
of the Kohanim Guaranty, in addition to compensatory damages, Plaintiff Kohanim
sought an award of attorney fees pursuant to the fee clauses contained in the
Kohanim Note and Kohanim Guaranty.
Likewise, with respect to the third cause of action
for breach of the Mottahedeh Guaranty, in addition to compensatory damages, the
Mottahedeh Plaintiffs sought an award of attorney fees pursuant to the attorney
fee clause contained in the Mottahedeh Note, which the Mottahedeh Plaintiffs
sought to enforce through the Mottahedeh Guaranty.
2.
And Motion Practice; Defendant Mousa Retains Separate Trial Counsel
In preparing the case for trial, the parties agree
there was considerable discovery and motion practice, including depositions in
New York and California, extensive written discovery, document demands and
third party record subpoenas, cross motions for summary judgment and numerous
court appearances for hearings on contested matters.
A few weeks prior to the original May 18, 2011 trial
date, Defendant Mousa retained the law firm of Rutter Hobbs & Davidoff,
Inc. (Rutter Hobbs) to serve as his separate trial counsel. Prior to Rutter Hobbs’ retention, both
Defendants were represented by Reeder Lu, LLP (Reeder Lu) and later by
Salisian|Lee LLP (Salisian|Lee) after Defendants’ attorney, Richard H. Lee,
left Reeder Lu. After the original trial
date was continued to October 5, 2011, Rutter Hobbs and Salisian|Lee continued
as co-counsel, with the intention that Defendant Mousa would be represented by
only Rutter Hobbs during trial.
3.
for Defendants’ Attorney Fees and Costs; The Trial Court Dismisses the Action
and Enters Judgment for Defendants
On July 19, 2011, Defendants each filed separate
motions to require Plaintiffs to post a bond as security for Defendants’
attorneys fees and costs in the amount of $110,000 pursuant to Code of Civil
Procedure section 1030.
name="_ftnref2" title="">[2] Each motion was made on the grounds that
Plaintiffs were out of state residents residing in New York, Defendants had
incurred and expected to incur significant attorney fees and costs in defending
the action through trial, and there existed a reasonable possibility that
Defendants would prevail in the action.
Plaintiffs filed a combined opposition to both of Defendants’ motions.
On August 10, 2011, after full briefing and a hearing
on Defendants’ motions, the trial court granted the motions and ordered
Plaintiffs to furnish security in the amount of $110,000 within 30 days.
Plaintiffs failed to post a bond by the September 9,
2011 deadline specified in the court’s order. On September 22, 2011, Defendants brought an
dismissal of the action pursuant to Code of Civil Procedure section 1030,
subdivision (d). On October 13, 2011,
following two hearings and briefing by the parties on the application for
dismissal, the trial court dismissed the action and entered judgment for
Defendants.
On November 14, 2011, Plaintiffs jointly moved for
relief from the order of dismissal and judgment pursuant to Code of Civil
Procedure section 473, subdivision (b) on the ground that the Plaintiffs’
failure to post a bond was solely the result of the mistake, inadvertence,
surprise, or neglect of Plaintiffs’ counsel.
Defendants filed a joint opposition to Plaintiffs’ motion. On January 6, 2012, the trial court denied
Plaintiffs’ motion.
4.
Fees in a Reduced Amount, Jointly and Severally Against Plaintiffs
On December 16, 2011, Defendants filed a joint motion
for attorney fees and costs in the amount of $159,850 to be awarded jointly and severally against Plaintiffs.
Mottahedeh Note each authorized an award of fees. As prevailing parties on an action to enforce
those Notes and the corresponding Guaranties, Defendants claimed entitlement to
their reasonable attorney fees pursuant to Civil Code section 1717 and Code of
Civil Procedure section 1033.5.
Defendants supported their motion with attorney declarations attaching
billing statements and itemized billing entries by the three law firms that had
served as counsel for Defendants during the litigation.
Plaintiffs jointly opposed the motion on three
grounds. First, Plaintiffs argued that
Defendants were not entitled to fees from the Mottahedeh Plaintiffs because the
Mottahedeh Guaranty did not contain an attorney fee clause and the Mottahedeh
Plaintiffs were not parties to the first and second causes of action to enforce
the Kohanim Guaranty. Second, Plaintiffs
claimed there was considerable duplication of work, particularly with respect
to Defendant Mousa, who had employed two law firms as co-counsel. Third, Plaintiffs argued that Defendants’
evidence was insufficient to support the amount of fees requested because the
billing records contained block billing and the billing record submitted by
Salisian|Lee was only a compilation of time entries as opposed to a copy of the
firm’s actual monthly bills.
On January 19, 2012, the trial court heard Defendants’
attorney fee motion. The hearing mainly
focused on Plaintiffs’ contention that there had been significant duplication
in the work performed for Defendants, particularly during the period in which
Defendant Mousa was represented by both the Salisian|Lee and Rutter Hobbs
firms. Defendants explained that it was
necessary to keep Salisian|Lee as co-counsel for continuity, given that the
firm had been Defendant Mousa’s counsel for over a year, but the intention was
that Rutter Hobbs would be sole counsel at trial, and the bulk of Rutter Hobbs’
time was therefore spent on trial preparation.
Defendants maintained that the itemized billing records would show that
the division of work was appropriate and reasonable. Plaintiffs argued that purported deficiencies
in defense counsels’ time records made it difficult to discern the true extent
of duplication. And, even setting
duplication aside, Plaintiffs argued deficiencies in defense counsels’ billing
records required a substantial reduction to the fees requested. The trial court took the matter under
submission.
On
January 23, 2012, the trial court issued its ruling granting Defendants’ motion
for attorney fees. The court awarded
Defendants attorney fees and costs against all Plaintiffs, jointly and
severally, in the sum of $129,850. This
constituted a $30,000 reduction to the amount requested by Defendants. On June 11, 2012, the trial court amended the
judgment to reflect the award of attorney fees and costs. Plaintiffs’ appeal followed.
CONTENTIONS AND STANDARD OF REVIEW
Plaintiffs
make the following three contentions on appeal:
(1) the Mottahedeh Plaintiffs cannot be liable for attorney fees because
the guaranty under which they sued does not contain an attorney fee clause; (2)
Plaintiffs cannot be held jointly and severally liable for the entire fee award
because the Mottahedeh Plaintiffs were not parties to the first and second
causes of action to enforce the Kohanim Guaranty and Plaintiff Kohanim was not
party to the third and fourth causes of action to enforce the Mottahedeh
Guaranty; and (3) the evidence did not support the amount of the fee
award.
“On review of an award of attorney fees after trial,
the normal standard of review is abuse of discretion. However, de novo review of such a trial court
order is warranted where the determination of whether the criteria for an award
of attorney fees and costs . . . have been satisfied amounts to
statutory construction and a question of law.
[Citations.] Stated another way,
to determine whether an award of attorney fees is warranted under a contractual
attorney fees provision, the reviewing court will examine the applicable
statutes and provisions of the contract.
Where extrinsic evidence has not been offered to interpret the
[contract], and the facts are not in dispute, such review is conducted de
novo. [Citation.] Thus, it is a discretionary trial court
decision on the propriety or amount of statutory attorney fees to be awarded,
but a determination of the legal basis for an attorney fee award is a question
of law to be reviewed de novo.
[Citations.]†(
Cal.App.4th 132, 142.)
Consistent with these principles, we
review de novo Plaintiffs’ first two contentions regarding the contractual and
statutory bases for the attorney fee award.
We review Plaintiffs’ third contention regarding the amount of the
attorney fee award for abuse of discretion.
Finding no error in the bases for the award or the amount of attorney
fees awarded, we affirm.
DISCUSSION
1.
Note Authorized the Award of Attorney Fees Against the Mottahedeh Plaintiffs
Plaintiffs contend there was no contractual basis for
the award of attorney fees against the Mottahedeh Plaintiffs because the
Mottahedeh Guaranty did not contain an attorney fee clause and the Mottahedeh
Plaintiffs were not parties to any claim based on the Kohanim Guaranty. However, as Defendants point out, although
the Mottahedeh Guaranty did not contain an attorney fee clause, the Mottahedeh
Note did. Defendants contend that
because the Mottahedeh Plaintiffs sought to enforce the debtor’s obligations
under the Mottahedeh Note against Defendant Eilel by suing upon the Mottahedeh
Guaranty, the documents must be construed as one instrument, and Defendant
Eilel is therefore entitled to an award of fees to the same extent that fees
would have been available to the Mottahedeh Plaintiffs had they prevailed on
their contract claim. We agree.
Our Supreme Court has long recognized that where a
guaranty represents an independent undertaking to pay a debt owed by the maker
of a promissory note, “the note and the guaranty must be construed to be but
one instrument, constituting a single contract, upon which the liability of the
guarantor, to the extent of its obligation, [is] commensurate with that of the
maker of the note.†(
(1924) 193 Cal. 451, 466 (Anglo-California
Trust); Bagley v. Cohen (1898)
121 Cal. 604, 606 [“Their guaranty that [debtor] would perform his contract was
an original undertaking by them, and their liability as guarantors is commensurate
with that of [debtor]â€].) This principle
has been applied in the specific context of contractual attorney fees to hold a
guarantor liable for fees incurred in a suit to enforce a guaranty where the
underlying promissory note required the payment of attorney fees, though the
guaranty did not. (Niederer v. Ferreira (1987) 189 Cal.App.3d 1485, 1505 (
325-326 (Torrey Pines Bank) [affirming
attorney fee award to guarantors based upon attorney fee clauses in related
promissory note and deed of trust even though guarantors were successful in
proving the guaranties were void and unenforceable].)
Plaintiffs contend these authorities do not apply in
the instant case because Defendants were not parties to the underlying
Mottahedeh Note and the Mottahedeh Guaranty makes no reference to the
underlying note. Plaintiffs cite no
authority for the proposition that a guaranty must have either of these
characteristics for the guarantor’s obligations to be held commensurate with
those of the debtor on the underlying promissory note, and we have found
nothing to suggest this is the law. (Cf.
Flojo Internat., Inc. v. Lassleben
(1992) 4 Cal.App.4th 713, 722 [“We have difficulty in accepting the premise
that the rights of one who signs as guarantor on the note itself are different
from the rights of one who executes the guaranty on a separate piece of
paperâ€].)
On the contrary, as a general principle, “[i]n this
state, the intention of the parties as expressed in the contract is the source
of contractual rights and duties.†(
Drayage etc. Co. (1968) 69 Cal.2d 33, 38 [rejecting the view that
“contractual obligations flow, not from the intention of the parties but from
the fact that they used certain magic wordsâ€].)
Here, the Mottahedeh Plaintiffs alleged that the parties intended for
the Mottahedeh Guaranty—an undated check making no reference to the underlying
promissory note—to serve as Defendant Eilel’s “personal guaranty [of] the
Mottahedeh Note.†Based on this
allegation, the Mottahedeh Plaintiffs sought to hold Defendant Eilel liable for
fees pursuant to the attorney fee clause in the Mottahedeh Note. Had the Mottahedeh Plaintiffs proven this
allegation, it would have been necessary to conclude that Defendant Eilel’s
obligation was “commensurate with that of the maker of the note†[
entitling the Mottahedeh Plaintiffs to an award of attorney fees under the
Mottahedeh Note’s attorney fee clause.
Under the reciprocity principle codified in Civil Code
section 1717, Defendant Eilel is entitled to his attorney fees as the
prevailing party on the Mottahedeh Plaintiffs’ contract claim to the same
extent that the Mottahedeh Plaintiffs would have been entitled to a fee award
had they prevailed. (
870-871 (Hsu) [to achieve section 1717’s
goal of establishing mutuality where a contractual provision makes recovery of
attorney’s fees available for only one party, “the statute generally must apply
in favor of the party prevailing on a contract claim whenever that party would
have been liable under the contract for attorney fees had the other party
prevailedâ€]; Torrey Pines Bank,
325-326.) Accordingly, the trial court
did not err in awarding attorney fees against the Mottahedeh Plaintiffs.
2.
the Attorney Fee and Cost Award Among the Causes of Action on the Separate
Guaranties
Plaintiffs also contend that the trial court erred by
awarding attorney fees jointly and severally against Plaintiff Kohanim and the
Mottahedeh Plaintiffs. Because Plaintiff
Kohanim was party to only the first and second causes of action based on the
Kohanim Guaranty and the Mottahedeh Plaintiffs were party to only the third and
fourth causes of action based on the Mottahedeh Guaranty, Plaintiffs argue the
trial court was required to allocate the fee award according to the work
performed with respect to each guaranty.
We disagree.
A similar contention was rejected in
Cal.App.4th 1370 (Acosta). In Acosta,
a group of homeowners jointly sued SI Corporation on a single theory—product
liability for an allegedly faulty mesh used in the construction of their
homes—and lost. SI Corporation submitted
a single costs bill for all plaintiffs, and plaintiffs moved to tax costs on
the ground that the company failed to apportion costs among each individual
plaintiff. Plaintiffs argued that their
claims were separate, not joint, because 101 different homes were involved in
the litigation, and each plaintiff had an interest in only the home that he or
she owned. Citing the mandatory
provision of Code of Civil Procedure section 1032, subdivision (b), which
provides that a “prevailing party is entitled as a matter of right to recover
costs,†the appellate court held that a prevailing party defendant is not
required to apportion costs among plaintiffs “where the plaintiffs were
represented by the same law firm and pursued a single cause of action in a
joint trial.†(Acosta, at p.
1376.) The court explained that “in most
cases where a defendant is entitled to costs as of right because plaintiffs
took nothing in their joint action, there will be nothing to apportion. The costs are joint and several because the
plaintiffs joined together (represented by the same attorney) in a single theory
of liability against a defendant who prevailed.
It is up to the plaintiffs in a motion to tax costs to point out that
some costs are not related to the joint theory of liability, but are specific
to a particular plaintiff, and it is therefore not fair to include these in a
joint award.†(Ibid.) Because plaintiffs
failed to meet this obligation, the Acosta
court held there was no error in awarding costs jointly and severally
against the group of plaintiffs, who, after satisfying the cost award, would be
entitled to seek contribution from each other.
We
agree with the reasoning of Acosta and
hold that the trial court was not required, as a matter of law, to allocate
attorney fees between the causes of action asserted by Plaintiff Kohanim and
those asserted by the Mottahedeh Plaintiffs.
Plaintiffs elected to join together in a lawsuit, represented by the same
attorney, to assert essentially the same theory of liability—that Defendants
were liable for Namco’s debt as guarantors.
While that decision presumably resulted in efficiencies for all parties,
the joint prosecution of Plaintiffs’ claims and the identical arguments made by
their shared counsel necessarily resulted in substantial commingling of the
work defense counsel performed for both Defendants on the various causes of
action. Also as in Acosta, Defendants secured a total victory, they were the
prevailing parties on every contract claim, and the award of attorney fees on
each claim was mandatory. (See
supra, 9 Cal.4th at pp. 875–876 [“when the results of the litigation on the
contract claims are not mixed—that
is, when the decision on the litigated
contract claims is purely good news for one party and bad news for the
other . . . a trial court has no discretion to deny attorney fees to the
successful litigantâ€].) Thus, insofar as
Plaintiff Kohanim believed he should not be liable for certain fees because the
subject work related entirely to the Mottahedeh Plaintiffs’ claims, it was Plaintiff
Kohanim’s obligation to identify those fees that should have been charged to
only the Mottahedeh Plaintiffs, and vice versa.
Plaintiffs failed to do so in their opposition to Defendants’ attorney
fee motion, and they have not done so in their briefs on appeal. Accordingly, we find no error in the trial
court awarding fees jointly and severally against Plaintiffs.
3.
with Respect to the Amount of the Attorney Fee Award
Plaintiffs challenge the amount of attorney fees
awarded by the trial court on various grounds.
First, Plaintiffs contend that the trial court should not have awarded
any of the fees requested by the Reeder Lu and Salisian|Lee firms because these
firms submitted only their itemized time entries without copies of the actual
invoices sent to Defendants. Second,
Plaintiffs contend the trial court should have reduced the amount of the award
further due to defense counsels’ use of block-billing. Third, Plaintiffs contend a further reduction
was required to account for purported duplication of efforts by the firms
representing Defendants. Finally,
Plaintiffs make a blanket challenge to the reasonableness of the fee award and
the trial court’s application of the lodestar method. After carefully considering the parties’
briefs, the evidence submitted therewith, and counsels’ arguments at the
hearing on the fee motion, the trial court awarded Defendants $129,850 in
attorney fees—$30,000 less than Defendants requested. Examining the record in the light most
favorable to the trial court’s ruling, we find no abuse of discretion in the
amount of attorney fees awarded.
“The ‘experienced trial judge is the best judge of the
value of professional services rendered in his court, and while his judgment is
of course subject to review, it will not be disturbed unless the appellate
court is convinced that it is clearly wrong.’
[Citations.]†(
49.) “In reviewing a challenged award of
attorney fees and costs, we presume that the trial court considered all appropriate
factors in selecting a multiplier and applying it to the lodestar figure. [Citation.]â€
(Ramos v. Countrywide Home Loans,
Inc. (2000) 82 Cal.App.4th 615, 621.)
“In challenging attorney fees as excessive because too
many hours of work are claimed, it is the burden of the challenging party to
point to the specific items challenged, with a sufficient argument and
citations to the evidence. General
arguments that fees claimed are excessive, duplicative, or unrelated do not
suffice.†(Premier Medical Management Systems, Inc. v. California Ins. Guarantee
Assn. (2008) 163 Cal.App.4th 550, 564.)
“ ‘It is the burden of the party challenging the fee award on
appeal to provide an adequate record to assess error.’ †(Ketchum
v. Moses (2001) 24 Cal.4th 1122, 1140-1141.) With these principles in mind, we address
Plaintiffs’ arguments in turn.
Plaintiffs contend that none of the fees requested by
the Reeder Lu and Salisian|Lee firms should have been awarded because copies of
the actual invoices these firms sent to Defendants were not included with the
attorney fee motion. In Plaintiffs’
view, it was not enough that these firms submitted detailed time records
showing the number of hours billed and each billing attorney’s hourly rate,
because, without the invoices sent to Defendants, Plaintiffs claim “there was
no evidence of attorneys’ fees from the law firms of Reeder Lu and (Reeder Lu)
and Salisian|Lee having been actually billed to or incurred by the
Defendants.â€. Plaintiffs’ argument is
contrary to the law.
As our Supreme Court has observed, “ ‘[i]t is
well-settled that an award of attorney fees is not necessarily contingent upon
an obligation to pay counsel. . . .’
More specifically, courts have awarded attorney fees under fee-shifting
statutes that apply when fees are ‘incurred’ when the party seeking fees was
represented by a legal services organization or counsel appearing pro bono
publico; ‘attorney fees are incurred by a litigant “if they are incurred in his
behalf, even though he does not pay them.†’ [Citation.]â€
(Lolley v. Campbell (2002) 28
Cal.4th 367, 373.) Thus, contrary to
Plaintiffs’ premise, it was not necessary for Defendants to establish that they
were personally obligated to pay the fees incurred by Reeder Lu and
Salisian|Lee—all that was required was evidence that such fees had been
incurred in Defendants’ behalf.
name="_ftnref6" title="">[6]
That evidence was present here. The declaration of Defendants’ attorney,
Richard Lee, attested to the specific amount of fees incurred by the Reeder Lu
and Salisian|Lee firms on behalf of Defendants in the litigation. Those amounts were supported by billing
records submitted by both firms listing the work performed, the hours spent on
the work listed, and the hourly rates charged for the work. The omission of actual invoices might
“perhaps [be] relevant to the credibility of [Mr. Lee’s] declaration; however,
the lack of [invoices] does not automatically establish that there was
insufficient evidence for the trial court to render a decision.†(City
of Colton v. Singletary (2012) 206 Cal.App.4th 751, 786.) The trial court did not err in awarding the
fees incurred by the Reeder Lu and Salisian|Lee firms in Defendants’ behalf.
Plaintiffs next argue that the trial court should have
further reduced the amount of fees awarded because “the entirety of the time
entries†submitted by defense counsel were “in block-billed format.†We are not persuaded.
“[B]lock billing is not objectionable ‘per se,’ â€
though it may “increase the risk that the trial court, in a reasonable exercise
of its discretion, will discount a fee request.†(Jaramillo
v. County of Orange (2011) 200 Cal.App.4th 811, 830.) Plaintiffs make several sweeping criticisms
against the general practice of block billing, but they fail to identify a
single entry in defense counsels’ billing records that, they contend, is so
vague as to make it impossible to audit the reasonableness of the fees
requested. This is not surprising, as
our independent review of the billing records submitted in support of the fee
motion confirms that the entries are quite detailed, and the task descriptions,
though organized in daily blocks, appear to reasonably relate to the total
number of hours billed for the block of tasks.
As we have noted, “ ‘[i]t is the burden of the party challenging
the fee award on appeal to provide an adequate record to assess
error.’ †(Ketchum v. Moses, supra,
Plaintiffs claim are so vague and ambiguous as to mask the excessiveness of the
fees billed, Plaintiffs have failed to meet this burden.
For the same reason, we are not persuaded by
Plaintiffs’ argument that the trial court erred by not further reducing the fee
award based on, what Plaintiffs contend was, “considerable duplication of
effort†by defense counsel, especially after Rutter Hobbs was retained as
co-counsel for Defendant Mousa. The
record reflects that the trial court gave significant consideration to the
matter of duplicative work, particularly with respect to the period during which
Defendant Mousa was represented by both Salisian|Lee and Rutter Hobbs. Indeed, the hearing on the attorney fee
motion focused almost entirely upon this issue, with the trial court making
numerous inquiries about whether the billing records reflected duplication and
counsel for all parties offering extensive argument on the issue. As Defendants’ counsel explained in their
briefing and at the hearing, Rutter Hobbs was retained to serve as Defendant
Mousa’s separate trial counsel and the bulk of the firm’s efforts focused on
trial preparation. It was within the
trial court’s discretion to accept this explanation based on the evidence
presented. Moreover, given the $30,000
reduction, which appears to have been largely based on the trial court’s
concern over duplication, we cannot say that the court abused its discretion by
not reducing the award further.
As for Plaintiffs’ final blanket attack on the
reasonableness of the fee award and the trial court’s application of the
lodestar analysis, there is little more to say that we have not already
said. We reiterate that “[t]he
‘experienced trial judge is the best judge of the value of professional
services rendered in his court, and . . . his judgment . . . will
not be disturbed unless the appellate court is convinced that it is clearly
wrong.’ [Citations.]†(Serrano
v. Priest, supra,
case was not complex,†and their flawed contention that attorney fees were not
available under the Mottahedeh Note and Guaranty, Plaintiffs cite nothing in
the record to overcome the presumption that the trial court considered all
appropriate factors in applying the lodestar method. (See Ramos
v. Countrywide Home Loans, Inc.,
supra, 82 Cal.App.4th at p. 621.)
Without such evidence, we find nothing in Plaintiffs’ argument that
compels us to “drastically reduce the lodestar amount†as they request. The trial court did not abuse its discretion
with respect to the amount of fees awarded.
DISPOSITION
The order
for attorney fees is affirmed.
Defendants are awarded costs on appeal.
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS
KITCHING,
J.
We
concur:
KLEIN, P. J.
CROSKEY,
J.
last name, we use their first names when referring to them individually.
of Civil Procedure section 1030 provides, in pertinent part: “(a) When the plaintiff in an action or
special proceeding resides out of the state . . . the defendant may at any time
apply to the court by noticed motion for an order requiring the plaintiff to
file an undertaking to secure an award of costs and attorney’s fees which may
be awarded in the action . . . .
[¶] (b) The motion shall be made
on the grounds that the plaintiff resides out of the state . . . and that there
is a reasonable possibility that the moving defendant will obtain judgment in
the action or special proceeding. . . .
[¶] (c) If the court, after
hearing, determines that the grounds for the motion have been established, the
court shall order that the plaintiff file the undertaking in an amount
specified in the court’s order as security for costs and attorney’s fees. [¶]
(d) . . . If the plaintiff fails to file the undertaking within the time
allowed, the plaintiff’s action or special proceeding shall be dismissed as to
the defendant in whose favor the order requiring the undertaking was made.â€
