Filed 7/6/26 Rodriguez v. Paramount Convalescent Group CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
GRACE RODRIGUEZ, B344443
Plaintiff and Respondent, Los Angeles County
Super. Ct. No.
v. 21STCV45537
PARAMOUNT CONVALESCENT
GROUP, INC.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Michael Shultz, Judge. Affirmed in part,
reversed in part with directions.
Giovanniello Law Group, Alexander F. Giovanniello,
Martin R. Boags and Jenny T. Nguyen for Defendant and
Appellant.
Smith Clinesmith and Dawn M. Smith for Plaintiff
and Respondent.
_________________________
Defendant Paramount Convalescent Group, Inc.
(Paramount) appeals from the court’s award of $81,536.13 in
sanctions—consisting of attorney fees and costs—under section
128.5 of the Code of Civil Procedure1 to plaintiff Grace Rodriguez
based on defense counsel having elicited testimony that violated
the parties’ stipulation, resulting in a mistrial. Defendant
contends the trial court abused its discretion in granting the
sanctions motion because the conduct was not frivolous or in
bad faith, the attorney fees and costs awarded were “grossly
inflated,” and plaintiff failed to show the claimed legal work
and costs had to be duplicated due to the sanctioned conduct.
Defendant also challenges the court’s underlying order declaring
the mistrial.
We conclude the court did not abuse its discretion in
declaring a mistrial or in awarding plaintiff sanctions under
section 128.5. Except for $5,500 in attorney fees, we also
conclude the court acted within its discretion in finding the
attorney fees and costs plaintiff claimed were the result of
the mistrial. Accordingly, we reverse in part the court’s order
awarding $68,450.00 in attorney fees and $13,086.13 in costs
as sanctions against defendant and its attorney and direct the
trial court to enter a new order reducing the award of attorney
fees to $62,950.00.
BACKGROUND
Plaintiff—in her individual capacity and as the successor
in interest to decedent Evangeline Rodriguez—sued defendant
for, among other causes of action, violations of the Elder and
1 Statutory references are to the Code of Civil Procedure
unless otherwise noted.
2
Dependent Adult Civil Protection Act (elder abuse).2 The
decedent was a “ ‘dependent adult’ ” at defendant’s skilled
nursing facility. Plaintiff alleged defendant failed to establish
mandated COVID-19 safety protocols and, as a result, the
decedent died on December 17, 2020, after contracting the virus.
1. Motion in limine
Before the start of trial, both parties filed motions
in limine. Defendant’s motion in limine no. 2 asked the court
to exclude reference to any other lawsuits involving defendant.
The parties orally agreed to the mutual application of the
in limine motion; they would not refer to other lawsuits involving
either party. According to plaintiff’s counsel, she and defense
counsel “announced this agreement . . . in open court” at the
March 6, 2024 final status conference (FSC), but no court
reporter was present.3 After the hearing, defense counsel
prepared a written stipulation stating the parties agreed to
“[e]xclude reference to other lawsuits, prohibiting the parties,
their attorneys, and witnesses from offering any evidence and/or
making any reference to other lawsuits involving any other party
in the presence of jurors or prospective jurors” and had it emailed
2 Plaintiff was the decedent’s sister and heir. Plaintiff
amended her complaint to add Ralph Rodriguez and Moriah
Conteras as plaintiffs after defendant successfully moved to
“abate action for failure to join indispensable parties.” They
are not parties to this appeal. For readability, we refer to
a singular plaintiff.
3 The court’s March 6, 2024 minute order states it granted
defendant’s motion in limine to exclude evidence of other lawsuits
involving Paramount.
3
to plaintiff’s counsel. The attorneys never signed or filed the
written stipulation, however.4
2. Mistrial
The jury was selected over two days—March 14 and 15,
2024. On March 18, plaintiff called her first witness—the
administrator of defendant’s facility—under Evidence Code
section 776. Defendant’s attorney also questioned the witness.
He asked, “[D]id you ever feel like [plaintiff] was making
threats?” The administrator responded: “There was [sic] a few
occasions when she first came into the facility, . . . she shared
with us in detail . . . when her loved one was first admitted, that
she had had a prior lawsuit against another facility.” Plaintiff’s
counsel objected as nonresponsive and moved to strike the
answer. The court overruled the objection. Defendant’s
attorney continued:
Q: “Why did you interpret that as a threat?”
A: “Well, . . . when somebody comes in and
expresses that they . . . were successful in suing
another facility, of course everybody gets a
little bit on edge around that individual.”
Q: “How did that conversation come up?”
A: “It was just in our very first opening
conversation with her, where she . . . was
expressing about how she had . . . that lawsuit
and . . . that she wanted . . . to make sure that
she didn’t do that again. And so she . . . had
other incidents where she . . . would make
4 The stipulation was filed and the order signed before
the retrial.
4
us feel as if we . . . were going to be going down
that road with her.”
Q: “How many times?”
A: “A few other occasions.”
At the end of the examination, plaintiff’s counsel told
the court she had “one issue to address with the Court regarding
Motion in Limine Number 2.” The court had counsel explain the
issue—off the record—at the break. After the break, the court
noted—on the record—counsel had asked for a mistrial, which
the court hadn’t anticipated. It had been unaware of the parties’
stipulation not to present evidence or refer to other lawsuits
involving either party. Plaintiff’s counsel gave the court the
stipulation and argued that, although it wasn’t signed, the
parties had an agreement. She explained the administrator’s
testimony about plaintiff’s comments “really caught me
completely by surprise”—hence her “nonresponsive” objection
and motion to strike. She stated the comments never came up
in discovery or during the administrator’s deposition. Counsel
believed she had “preserved the error.” She stated she had
“not want[ed] to call any more attention to it because it [was]
so inflammatory.”
Plaintiff’s counsel argued, “Counsel knew, obviously knew
very well about this lawsuit, this alleged lawsuit in light of his
questioning, and then didn’t move on after the witness said it.”
She said she thought defense counsel was “a professional person,”
but argued “he was to instruct his witnesses not to mention
any lawsuits, any prior lawsuits, and certainly should have
at least moved on after that was said, to where we could do a
curative instruction on it. [¶] But at this point I don’t think a
curative instruction will fix it, and I have no choice but to move
5
for a mistrial.” Defendant’s counsel stated he was not seeking
to elicit the testimony and didn’t expect it. He acknowledged
the parties had agreed to the stipulation and, although it wasn’t
filed, he “intended to abide by it.” He argued a mistrial was not
appropriate and thought the “offending testimony can be stricken
and that the . . . jury could be admonished.” Plaintiff’s counsel
countered, “I mean, you just can’t unring that bell. . . . I wish
I could.”
The following colloquy with defendant’s attorney ensued:
Court: “[A]s soon as the witness answered, you
had to have known that you were in
violation of your own agreement that you
had made with [plaintiff’s counsel]. . . .
[¶] I’m asking you when you first got the
answer about the lawsuit, did you not
know that any further questions would
violate the agreement that you made with
[plaintiff’s counsel]?”
Counsel: “. . . [T]hat was unexpected. . . . I don’t
remember that testimony being
particularly long. But I’m not going
to claim . . . mistakes weren’t made.”
Court: “Didn’t really answer my question . . . .
My question pertains to what you were
doing, not a confession or admission that
you made a mistake . . . [¶] What was your
plan? What was your intent? Why did you
do what you did if you knew it violated the
agreement that you made with [plaintiff’s
counsel]?”
6
Counsel: “I don’t know that I thought very—
confusion trying to get to the end of my
examination, your Honor. I’m not going to
—candidly say that that’s what was going
through my head or not, as the case may
be, if not enough was going on.”
The court had the attorneys confer to see if they could come
up with a curative instruction. The court noted it had “never
granted a mistrial in my life” based on a piece of evidence, but
it was “seriously considering doing it.” Defense counsel proposed
the court advise the jury the parties had agreed to strike the
testimony, and the jury wasn’t to consider it. Plaintiff’s counsel—
representing that her clients had filed a lawsuit in the past but
not against a care facility—argued the testimony was “a complete
fabrication with no basis whatsoever, which makes it even more
inflammatory.” She argued that, for any curative instruction
to be effective, the court also would have to tell the jury the
statement was a fabrication without factual basis. Defendant’s
counsel objected.
The court said it appreciated that defense counsel did
not deny his oral agreement with plaintiff’s counsel. The court
continued, “I don’t really appreciate the manner in which you
questioned the witness, because I listened and sure looked like
you knew what you were asking for. It sure looked like you knew
what the evidence was. And even if I accept the statement at
face value that you didn’t know what he was going to say, you
knew what he said once he said it and you kept going. You just
kept going. And that’s a problem.” The court accepted plaintiff’s
counsel’s representation as to “why [she] didn’t object further.”
The court then ruled:
7
“[T]he problem that I see here is not just that
[the lawsuit] was mentioned. It’s that it was both
mention[ed] and asked about repeatedly. [¶] And it’s
not just that the answers were given. The context
of the answers, in terms of when the statement was
allegedly made by [plaintiff], when [decedent] arrived
at the facility, looks as if or implied that [plaintiff]
was essentially fabricating or planning a lawsuit
against Paramount; that Paramount either had
to be careful how they behaved or they would have
a lawsuit, or the negative inference is that she was
there knowing her loved one was sick and planning
some type of lawsuit against the defendant. [¶]
There’s no way to recover from that, and the curative
instruction that you asked me for, to unring the bell
or strike it, I don’t think will work, notwithstanding
the fact that this is the first witness of the trial, the
very first witness. And I think that the problem here
cannot be cured by a limiting instruction. So I’m
granting the mistrial.”
Plaintiff’s counsel asked the court to set a new trial date
within the next 30 days rather than order a new jury panel for
the next day. She explained she had an expert en route who
would not be able “to just sit and wait here for a couple of days
while we pick a jury.” She also didn’t “know the feasibility of
rescheduling everybody” for the next week because it had been
hard to schedule the experts. The court asked plaintiff’s counsel
to pick a date. She first tried calling her experts but reached
only one of three. She also stated she intended to file a motion
for sanctions—“for reimbursement of the trial expenses, expert
8
expenses, and everything else like that.” She asked that the
court reset the trial for some time in April or May to allow “that
motion to go forward in a properly noticed manner.” The court
set the retrial for May 6, 2024, and the final status conference
for April 29, 2024.
3. Motion for Sanctions
On April 3, 2024, plaintiff filed a motion for sanctions
under section 128.5 supported by plaintiff’s lead attorney’s
declaration. Plaintiff asked for $68,450 in attorney fees based
on 123 hours, and $13,086.13 in costs, incurred “in relation to
the trial that resulted in a mistrial because of Defendant and
Defendant’s counsel’s frivolous bad faith actions.” Plaintiff
argued defendant and/or defendant’s counsel acted in bad faith
when the administrator testified about plaintiff having filed a
lawsuit against another care facility—and counsel continued to
question the witness on the subject—in violation of the parties’
agreement. Plaintiff also contended the fees—based on hourly
rates of $750 for a managing partner and $350 for an associate
—were reasonable in light of the expertise required to litigate
an elder abuse case and the number of hours counsel had to
spend on the case due to the mistrial.
Defendant filed an opposition along with evidentiary
objections, a request for judicial notice of pretrial documents filed
in the case, and its attorneys’ declarations. Defendant argued
the mistrial wasn’t warranted, and its attorney didn’t violate
section 128.5. It also argued plaintiff’s claimed “expenses” were
unreasonable because they included “all fees and costs incurred
starting with the March 6, 2024 [FSC] through the events of
March 18, 2024,” and counsel’s hourly rates were not supported
by admissible evidence. Defendant contended plaintiff’s
9
attorneys’ “normal trial preparation”—including fees and costs
incurred litigating the court’s pretrial rulings on March 6 and 13,
“which the parties [were] bound by”—would not have to be
repeated. It argued that, at most, plaintiff was entitled to only
those fees and costs incurred for counsel’s appearances in court
on March 14, 15, and 18 for jury selection, opening statements,
and the administrator’s examination.
On April 29, the trial court held the FSC before the retrial
and continued the sanctions hearing to May 3. Neither party
objected to the exhibits to be presented at trial. The court
ordered the parties to sign and file any stipulation regarding
evidence.
On May 3, the court issued a tentative ruling granting
plaintiff’s motion for sanctions and heard argument. Defendant’s
counsel argued the testimony about the lawsuit was inadvertent.
The court disagreed and adopted its tentative ruling granting
the sanctions motion. The court deferred its determination of
the amount of reasonable expenses—including attorney fees—
to award plaintiff until the conclusion of the matter.
4. Retrial and determination of amount of sanctions
The retrial began on May 6. On May 20, 2024, the jury
rendered a verdict in favor of defendant. After the verdict,
the court briefly heard argument on the amount of sanctions.
The court entered a defense judgment on June 10, 2024.
On July 17, plaintiff filed a motion for determination
of costs and attorney fees on the sanctions motion. Defendant
opposed it. It argued the motion was improper—as the sanctions
10
motion remained under submission—and should be denied
to the extent it sought new fees and costs.5
On August 13, 2024, the court heard the motion. The
court adopted its tentative ruling stating it could not “determine
whether costs and fees were reasonably incurred based on
the conclusory declarations of counsel, which do not describe
the work done that was required to be duplicated as a result of
Defendant’s conduct.” The court then noted neither the motion
for sanctions nor the present motion included any billing records.
Plaintiff had provided a “table of costs,” but it also wasn’t clear
to the court that plaintiff was “required to duplicate any of those
costs at the time of re-trial.” The court also found plaintiff’s
counsel’s declaration “alone does not provide sufficient facts
for the court to exercise its discretion in determining whether
reasonable fees and costs can be attributed to Defendant’s
bad faith actions or tactics.” The court found plaintiff’s counsel
“did not provide any support, other than their own conclusions,
that $750 and $350 per hour are prevailing and reasonable
market rates in the community for similar actions.” The parties
agreed to continue the motion to November 1. The court ordered
plaintiff’s counsel “to provide additional evidence, including
billing records, preferably in spreadsheet format, and any other
evidence to demonstrate that costs and fees incurred prior to
the mistrial can be attributed to defense counsel’s conduct
sanctionable under . . . § 128.5.” The court ordered counsel to
5 Apparently in error, plaintiff’s moving papers stated
plaintiff incurred both $13,086.13 and $34,857.81 in costs due
to the mistrial. Plaintiff’s reply clarified the motion sought
no new costs, only the originally claimed $13,086.13.
11
file a supplemental declaration with supporting evidence 10 court
days before the continued hearing date.
On November 1, 2024, the court continued the hearing on
the motion for determination of costs and fees to January 2025.
The court ordered plaintiff “to comply with the court’s prior order
requiring billing and other relevant records and a supplemental
declaration 10 court days prior to the hearing.” Plaintiff’s
counsel did not file a supplemental declaration until January 15,
2025. The declaration attached a table breaking down the
attorney fees plaintiff had requested in a manner similar to a
spreadsheet or billing record. Defendant filed an opposition to
the supplemental declaration, arguing it was untimely and added
no information or evidence to counsel’s original declaration.
On January 22, 2025, the court heard argument and took
the matter under submission. On January 29, the court issued
its order granting the motion. The court noted it initially
had heard the motion for determination on August 13, 2024,
“but continued the hearing to allow [p]laintiff to submit a
supplemental declaration and evidence in support of the amount
of sanctions to be awarded under . . . § 128.5.” The court
also noted plaintiff’s supplemental declaration was untimely.
The court considered it—and defendant’s opposition to the
supplemental declaration—as defendant had not shown any
prejudice from plaintiff’s delay.
The order stated plaintiff’s lead attorney had asked for an
hourly rate of $750 per hour, based on her 23 years of experience
“primarily litigating elder abuse cases,” and $350 per hour
for work an associate attorney had performed. The court
acknowledged counsel worked on a contingency fee basis.
12
The court found the rates requested were “reasonable in light
of the specialized nature of the litigation.”
The court also found plaintiff adequately had supported
the $13,086.13 in requested costs with “a ledger for travel and
hotel room expenses incurred by counsel and their witnesses
until the mistrial.” As for attorney fees, the court noted plaintiff
had “request[ed] fees performed for all hours expended to prepare
for the trial.” The court found plaintiff was “required to duplicate
the efforts expended for trial preparation generally, jury
selection, opening statements, reviewing records, preparing for
and examining the first witness, and both counsel’s attendance
at trial, all of which were required to be duplicated upon retrial.”
The court stated it had reviewed counsel’s declaration and
exhibit. It found “[t]he time spent by one managing partner
and one associate attorney appears reasonable.” The court
acknowledged defendant took “issue with the table submitted
as evidence of fees incurred as it does not appear to be a billing
record.” However, the court noted “[a]n attorney’s testimony
as to the number of hours worked is sufficient evidence to support
an award of attorney fees, even in the absence of detailed time
records.” The court awarded sanctions in favor of plaintiff
and against defendant and its attorney, jointly and severally,
consisting of $68,450 in attorney fees and $13,086.13 in costs,
as plaintiff originally had requested.
DISCUSSION
1. The mistrial was not an abuse of discretion
“The fundamental idea of a mistrial is that some error
has occurred which is too serious to be corrected, and therefore
the trial must be terminated, so that proceedings can begin
again. [Citation.]” (Blumenthal v. Superior Court (2006) 137
13
Cal.App.4th 672, 678 (Blumenthal).) “ ‘A trial court should grant
a mistrial only when a party’s chances of receiving a fair trial
have been irreparably damaged.’ ” (Id. at p. 679.) “ ‘Whether
a particular incident is incurably prejudicial is by its nature a
speculative matter, and the trial court is vested with considerable
discretion in ruling on mistrial motions.’ ” (Id. at p. 678.) Thus,
“the trial judge, present on the scene, is obviously the best judge
of whether any error was so prejudicial to one of the parties
as to warrant scrapping proceedings up to that point.” (Ibid.)
“Though the standard of review from a mistrial order
is abuse of discretion, our Supreme Court has a ‘substantive
preference against them’ that restricts the deferential abuse
standard to orders denying mistrials.” (Petrosyan v. Prince Corp.
(2013) 223 Cal.App.4th 587, 593 [reversing order granting
mistrial where admonition to jury would have been sufficient].)
We therefore review an order granting a motion for mistrial
for “abuse of discretion with elevated scrutiny.” (Blumenthal,
supra, 137 Cal.App.4th at p. 682.)
Applying this elevated standard, we find no abuse of
discretion. Defendant argues—as it did at trial—that the
court could have cured any prejudice to plaintiff from the
administrator’s testimony by striking the testimony and giving
an appropriate curative instruction.6 The court found that telling
6 Defendant also asserts the court “accepted the proposition
that a curative instruction could address [plaintiff’s] purported
prejudice by instructing the parties to meet and confer on
possible language.” The trial court addressed this very same
contention in its order granting sanctions. The court explained,
“The court’s order to meet and confer regarding a potential
curative instruction is not evidence that the Court ‘accepted’
14
the jury the parties had agreed to strike the testimony and
the jury was not to consider it would not “work.” The court
specifically found the problem was “not just that [the lawsuit]
was mentioned,” but “that it was both mention[ed] and asked
about repeatedly.” The court stated counsel “went on and on
and on about it with the witness.” The court found “[t]he context
of the answers, in terms of when” plaintiff made the alleged
statement—when the decedent arrived at the facility—“implied
that [plaintiff] was essentially fabricating or planning a lawsuit
against Paramount.” The court concluded “[t]here’s no way to
recover from that.”
We cannot find the court’s assessment—that an admonition
could not correct the introduction of the improper testimony—
was an abuse of its discretion. At the initial hearing on
the motion for sanctions, the court stated it disagreed with
defense counsel that the testimony was “inadvertent.” The court
reiterated, “the context, the timing, the event, the fact that it
was the first witness, the manner in which it was teased out
of the witness, the fact that we were relatively at the very
beginning stages of the trial and that it was the first thing
that the jurors essentially heard from the defense—all of those
contributed to my conclusion that a mistrial was necessary.” The
court was candid—it never had granted a mistrial based on the
improper introduction of evidence and “didn’t want to grant one.”
Yet the trial court did, implicitly having found the improper
testimony was incurably prejudicial. The trial court was in
the best position to make that finding.
or concluded anything about the prejudicial impact of [defense
counsel’s] questions and [the witness’s] responses.”
15
Defendant contends Pope v. Babick (2014) 229 Cal.App.4th
1238 (Pope) is directly analogous. It is not. There, the reviewing
court affirmed an order denying a motion for mistrial when an
attorney improperly elicited excluded testimony from a patrol
officer about his report’s conclusion as to the cause of the accident
at issue. (Id. at pp. 1240–1244, 1248–1249.) The trial court
admonished the jury and gave a curative instruction. (Id. at
pp. 1244, 1248–1249.) In Pope, however, the trial court had
confirmed that plaintiffs’ expert would testify that there were
problems with the officer’s report, and the factual basis for his
conclusion was incorrect. (Id. at p. 1248.) The appellate court
noted the court chose to admonish the jury—rather than declare
a mistrial—based “partly on the expected testimony of plaintiffs’
expert regarding the overall handling of the investigation, which
it believed would eliminate any realistic possibility of prejudice
once the curative instruction was given.” (Id. at p. 1249.) The
appellate court also noted the attorney’s misconduct “was one
question, on a single occasion.” (Id. at p. 1250.)
Here, in contrast, there was no evidence plaintiff could
introduce that would diminish the effect of the administrator’s
improper testimony. Any counter-testimony undoubtedly
would call further attention to the administrator’s testimony
that plaintiff had—at least by implication—threatened defendant
with filing a lawsuit like the one she purportedly had filed
against another facility. Moreover, defense counsel didn’t stop
after the witness testified about the supposed lawsuit. Counsel
asked follow-up questions, eliciting further testimony on the
excluded subject. (Cf. Pope, supra, 229 Cal.App.4th at p. 1251
[“a single impermissible question and answer is not sufficient
to override the judge’s instructions and the remainder of the
16
proceedings”].) Defense counsel also knew the testimony would
be prejudicial. As the court noted, defendant’s motion in limine
no. 2—filed before the parties stipulated to its joint application—
argued any reference to other lawsuits involving defendant
“would create a substantial danger of misleading the jury, would
be prejudicial to Paramount, and would compromise the veracity
of testimony of witnesses waiting to testify.” The same would
be true for plaintiff. Accordingly, the record amply supports
the court’s conclusion that an admonishment would not cure the
improper introduction of the testimony and prejudice to plaintiff.
2. The court did not err in awarding plaintiff sanctions
A court has discretion to award reasonable expenses—
including attorney fees—incurred as a result of “actions or
tactics, made in bad faith, that are frivolous or solely intended
to cause unnecessary delay.” (§ 128.5, subd. (a).) Thus, “[t]o be
entitled to sanctions the moving party must show the action or
tactic was in bad faith and frivolous or brought solely to cause
unnecessary delay.” (Harris v. Rudin, Richman & Appel (2002)
95 Cal.App.4th 1332, 1343 (Harris).) “ ‘Frivolous’ ” means
“totally and completely without merit or for the sole purpose of
harassing an opposing party.” (§ 128.5, subd. (b)(2).) “Whether
an action is ‘frivolous’ under . . . section 128.5 ‘is governed by an
objective standard: Any reasonable attorney would agree it is
totally and completely without merit. [Citation.] But there
must also be a showing of an improper purpose, i.e., subjective
bad faith on the part of the attorney or party to be sanctioned.
[Citation.]’ ” (Gemini Aluminum Corp. v. California Custom
Shapes, Inc. (2002) 95 Cal.App.4th 1249, 1262 (Gemini).) “When
a tactic or action utterly lacks merit, a court is entitled to infer
the party knew it lacked merit yet pursued the action for some
17
ulterior motive.” (Dolan v. Buena Engineers, Inc. (1994) 24
Cal.App.4th 1500, 1505.)
We review a sanctions order under section 128.5 for an
abuse of discretion. (Sabek, Inc. v. Engelhard Corp. (1998)
65 Cal.App.4th 992, 1001.) Under that standard, “[w]e do not
independently determine whether appellant’s conduct was
frivolous or in bad faith, and we may not substitute our judgment
for the judgment of the court below.” (Ibid.) We also “ ‘presume
the trial court’s order is correct’ ” and “will uphold all orders
based on express or implied findings supported by substantial
evidence.” (Noland v. Land of the Free, L.P. (2025) 114
Cal.App.5th 426, 438.)
Defendant argues counsel’s questioning of the
administrator was neither frivolous nor in bad faith. Defendant
asserts counsel was seeking admissible testimony about
plaintiff’s state of mind, represented he did not elicit the
“offending testimony,” and declared the testimony was
inadvertent. The court found defendant’s “conduct, given . . .
what [defense counsel] knew, the stipulation, and his persistence
in questioning the witness about his conversation with [plaintiff]
despite the parties’ agreement, was in bad faith and was
frivolous.” The court stated: Defense counsel’s “contention
that the witness[’s] response was inadvertent, is without merit.
The witness apparently was not prepared to avoid testimony of
other lawsuits. Any purported ‘inadvertent mention’ became
intentional as [defense counsel] continued his inquiry about the
conversation, eliciting yet more testimony about everyone being
‘on edge’ about [plaintiff] because of her comments, all of which
violated the parties’ stipulation.” And at the initial sanctions
hearing, the court told counsel it did “not in any respect believe”
18
the witness “inadvertent[ly] mention[ed]” the lawsuit, and
referred to “the context, the timing, the manner in which it was
teased out of the witness.” The court “disagree[ed] with” counsel
“entirely about whether it was inadvertent.”
Substantial evidence supported the court’s findings.
First, the trial court considered defense counsel’s statements but
clearly did not credit them. We will not second-guess the court’s
credibility determinations. (See Cornerstone Realty Advisors,
LLC v. Summit Healthcare REIT, Inc. (2020) 56 Cal.App.5th 771,
806 [assessing credibility of witnesses on sanctions motion is the
“task and exclusive province” of the trial court].) As the court
noted at the May 20 hearing, if defense counsel “were a neophyte,
[the court] could chalk that up to mistake to somebody
inexperienced [without] a lot of trial experience,” but he was
“extremely experienced.”7 The court also noted counsel was
“under a duty and knew about his responsibilities to inform
all the witnesses about any court orders vis-à-vis stipulations.”
Yet when the court asked defense counsel if he had admonished
the witness, counsel claimed that information was covered by
the attorney-client privilege, which the court “found astonishing.”
Nor did counsel’s declaration in opposition to the sanctions
motion explain whether he told the witness not to mention any
prior lawsuits or “why there was no discussion or admonition
on the part of [defense counsel to the witness] about that
agreement.”8
7 Counsel had litigated over 30 jury trials to verdict.
8 At the initial May 3 hearing, the court noted it had looked
through defense counsel’s declaration “to determine whether or
not you articulated or wrote anything about your conversation
with [the witness] prior to him testifying, and I didn’t see
19
Moreover, as the court explained when it granted the
mistrial, even if it accepted counsel’s “statement at face value
that [he] didn’t know what [the witness] was going to say,”
counsel “just kept going.” Once the witness said plaintiff
mentioned she had filed a lawsuit, defense counsel asked
about that conversation “repeatedly.” At the time, the court
was unaware of the parties’ stipulation, but once the witness
mentioned the alleged lawsuit, counsel knew the testimony
violated the parties’ agreement. Rather than moving on
to another subject, however, counsel asked the witness why
he interpreted plaintiff’s mention of the lawsuit as a threat.
That elicited further testimony about plaintiff having stated she
had been “successful in suing another facility.” Counsel probed
further still, asking how the conversation had come up and how
often. Not surprisingly, the witness expanded further on the
taboo subject—that plaintiff mentioned having filed that lawsuit
in her first conversation with him and said she wanted to make
sure she didn’t do that again, she had “other incidents,” and
made defendant “feel as if we . . . were going to be going down
that road with her.” We agree with the trial court that, even if
the administrator’s first mention of the lawsuit was inadvertent,
counsel’s continued questioning of the witness about his
conversation with plaintiff was anything but inadvertent and
supports the court’s finding of bad faith.
The questioning also was frivolous. As the court noted
throughout the proceedings, counsel knew the witness was not
anything about that.” Defense counsel confirmed the court was
correct and said he was “challenged in what to disclose to the
court” “due to privilege.”
20
to refer to any other lawsuits involving plaintiff (or defendant).
Indeed, defendant’s attorneys prepared the stipulation and its
trial counsel intended to abide by it. It is undisputed defense
counsel knew such testimony was prohibited. As the court noted,
despite that knowledge, “once the witness mentioned a prior
lawsuit, [defense counsel] persisted in questioning the witness
about the context of the conversation and how often it occurred.”
Counsel’s follow-up questions could lead only to more prohibited
testimony even if counsel’s initial question—whether the witness
ever felt plaintiff “was making threats”—sought evidence of
plaintiff’s state of mind.9 Any reasonable attorney would agree
counsel’s continued inquiry thus was “ ‘totally and completely
without merit.’ ” (Gemini, supra, 95 Cal.App.4th at p. 1262.)
And given counsel knew his continued inquiry would further
violate the parties’ agreement, the court reasonably could
conclude his conduct was in bad faith. (See Harris, supra,
95 Cal.App.4th at p. 1344 [court reasonably could conclude
defendants’ “continuous filing of motions” “constituted bad faith”:
court could infer defendants knew their motions—that repeated
the same claim the court already had rejected—lacked merit,
“yet continued to pursue their claim for some ulterior motive”].)
9 Counsel declared he asked the administrator about
statements plaintiff made that the witness “perceived as
threatening[,] . . . seeking evidence of [plaintiff’s] state of mind,
and not evidence of prior lawsuits . . . . [The administrator’s]
testimony was inadvertent as I was not seeking evidence
of prior lawsuits. I asked a couple follow-up questions and
completed my examination.”
21
3. Substantial evidence supported most of the
sanction award
a. Applicable law and standard of review
Section 128.5 allows the court to award attorney fees
and other expenses that were incurred “as a result” of bad faith,
frivolous actions or tactics. (§ 128.5, subd. (a).) Courts have
interpreted this language to “require[ ] no more than a causal
relationship between the offending legal action and the expenses
incurred by the opposing party.” (On v. Cow Hollow Properties
(1990) 222 Cal.App.3d 1568, 1577; see also Tenderloin Housing
Clinic, Inc. v. Sparks (1992) 8 Cal.App.4th 299, 307–308 [cost
of attorney’s airfare and lost vacation days were “reasonable
expenses” under § 128.5 because they “proximately result[ed]”
from the sanctionable conduct].) Expenses that “amount[ ] to
consequential damages,” however, may not be awarded under
section 128.5. (Brewster v. Southern Pacific Transportation Co.
(1991) 235 Cal.App.3d 701, 707–710, 716 [trial court properly
awarded attorney fees incurred in lifting nonexistent TRO but
had no authority to award costs defendant incurred in closing
down its operations due to defendant’s belief TRO existed based
on plaintiff’s counsel’s sanctionable conduct].) The statute limits
sanctions “to what is sufficient to deter repetition of the action or
tactic or comparable action or tactic by others similarly situated.”
(§ 128.5, subd. (f)(2); see Childs v. PaineWebber Incorporated
(1994) 29 Cal.App.4th 982, 995–996 [§ 128.5 permits an award
of attorney fees “not simply as appropriate compensation,” but
also “as a means of controlling burdensome and unnecessary
legal tactics”].)
When determining attorney fee awards, trial courts
generally begin with the “lodestar”—“the reasonable hours spent,
22
multiplied by the hourly prevailing rate for private attorneys
in the community conducting noncontingent litigation of the
same type.” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1133
(Ketchum).) “ ‘The value of legal services performed in a case
is a matter in which the trial court has its own expertise,’ ” and
it “ ‘may make its own determination of the value’ ” of those
services. (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084,
1096; see Ketchum, at p. 1132 [experienced trial judge is the best
judge of the value of an attorney’s services appearing in his or her
courtroom].) The lodestar method thus “ ‘vests the trial court
with the discretion to decide which of the hours expended by the
attorneys were “reasonably spent” on the litigation’ [citation],
and to determine the hourly rates that should be used in the
lodestar calculus.” (Morris v. Hyundai Motor America (2019)
41 Cal.App.5th 24, 35.)
“It is well established that ‘California courts do not require
detailed time records, and trial courts have discretion to award
fees based on declarations of counsel describing the work they
have done and the court’s own view of the number of hours
reasonably spent.’ ” (Syers Properties III, Inc. v. Rankin (2014)
226 Cal.App.4th 691, 698 (Rankin); City of Colton v. Singletary
(2012) 206 Cal.App.4th 751, 784–785 [absence of time records
and billing statements does not deprive trial court of substantial
evidence to support fee award—the “ ‘verified time statements’ ”
of an attorney “ ‘are entitled to credence in the absence of a clear
indication the records are erroneous’ ”]; Bernardi v. County of
Monterey (2008) 167 Cal.App.4th 1379, 1398 (Bernardi) [“ ‘trial
court could make its own evaluation of the reasonable worth
of the work done in light of the nature of the case, and of the
credibility of counsel’s declaration unsubstantiated by time
23
records and billing statements’ ”].) And “in the matter of an
award of attorneys fees under CCP § 128.5, the court is not
bound in its determination by such traditional factors as hours
consumed, statements mailed, results attained, and the like.”
(Dwyer v. Crocker National Bank (1987) 194 Cal.App.3d 1418,
1438 (Dwyer).) An award of attorney fees as sanctions under
section 128.5 “is not the subject of a ‘strict accounting’ as might
be required in other areas of the law.” (Dwyer, at p. 1438.)
In short, “the determination of what constitutes reasonable
legal services is committed to the discretion of the trial court.”
(Pech v. Morgan (2021) 61 Cal.App.5th 841, 856; Bernardi,
supra, 167 Cal.App.4th at p. 1394 [trial court has “ ‘broad
discretion’ ” to determine amount of a reasonable attorney
fee award].) “In exercising its discretion, the trial court may
accordingly ‘consider all of the facts and the entire procedural
history of the case.’ ” (Bernardi, at p. 1394.) We will not
overturn an attorney fee award unless we find “ ‘ “a manifest
abuse of discretion, a prejudicial error of law, or necessary
findings not supported by substantial evidence.” ’ ” (Ibid.) Thus,
while the trial court’s judgment is subject to review, we will not
disturb it unless we are convinced it is clearly wrong. (Ketchum,
supra, 24 Cal.4th at p. 1132.)
b. Plaintiff presented evidence of reasonable attorney
fees and costs incurred as a result of the mistrial
Here, plaintiff could recover attorney fees and costs
incurred as a result of the mistrial—the consequence of
defendant’s counsel’s sanctioned conduct. Defendant argues
the court abused its discretion in awarding the requested
fees and costs, having earlier found plaintiff’s evidence was
24
insufficient.10 We can infer the court ultimately found plaintiff’s
evidence was sufficient to enable it to exercise its discretion.
And, except as discussed below, the evidence supported the
court’s award.
i. The court could determine plaintiff’s reasonable
expenses from counsel’s declarations and table
In its January 29, 2025 order awarding attorney fees and
costs, the court acknowledged it had continued the August 13,
2024 hearing on plaintiff’s motion because plaintiff “did not
provide sufficient facts from which the court could exercise
its discretion to determine whether reasonable fees and costs
claimed by [p]laintiff[ ] could be attributed to [d]efendant’s bad
faith actions or tactics.” The court noted it had ordered plaintiff’s
counsel “to provide additional evidence, including billing records
and a supplemental declaration.” The court also acknowledged
defendant’s argument that plaintiff’s counsel’s supplemental
declaration was untimely and did “not clarify whether the costs
and fees were reasonably incurred.” And after hearing argument
on January 22, the court stated it would “take a closer look at
my prior orders.”
10 Defendant repeatedly asserts the court found plaintiff’s
counsel’s declaration insufficient when it granted plaintiff’s
motion for sanctions on May 3, 2024. Defendant is mistaken.
On May 3, the court found plaintiff was entitled to sanctions
but deferred its determination of the amount to award until the
matter concluded. The court did not order plaintiff to produce
“evidence of duplicated efforts” at that time, as defendant asserts.
Defendant’s only citation to support its assertion is to the last
page of plaintiff’s motion for sanctions.
25
The court thus was well aware of its prior ruling and
defendant’s contention. The court, however, had discretion to
reevaluate plaintiff’s evidence—and consider the parties’
arguments—before issuing its final order. We can infer the court
found counsel’s table—in an easier-to-read format akin to a
billing record or spreadsheet—enabled it to determine, in
conjunction with counsel’s earlier-filed declaration, that the
claimed attorney fees and costs were reasonable and attributable
to the sanctioned conduct.
That table broke out in columns the task performed, the
date it was performed, the time spent on the task, the hourly
rate, the attorney who performed the task (the managing partner
or associate), and the cost for each attorney’s work on the task—
calculated by multiplying the hours worked by the hourly rate.
The table showed the grand total of hours spent—123—and fees
incurred—$68,450.11 As defendant argued, the table described
each task very generally. For example, “Comprehensive Trial
Preparation,” “Medical Chart Review,” “Preparing Administrative
Expert,” “Plaintiff Testimony Preparation,” and “Final Witness
and Evidence Prep.”
In turn, plaintiff’s counsel’s original declaration—filed
before the retrial with the sanctions motion—described with
relative detail the tasks the attorneys performed, and stated
the number of hours they spent on each task, but did not
calculate the fees incurred for each task. Counsel declared she
had “provide[d] a conservative recitation of our trial preparation
efforts for the first trial in this matter leading up to the mistrial.”
11 Counsel’s original declaration gave subtotals of the cost
by attorney. They add up to the total in the table.
26
She then described those efforts by date—which correspond to
the “tasks” outlined in the later-filed table—as follows:
• March 6: “preparing for” and attending the FSC;
• March 12: “meeting with the plaintiff[ ] in
preparation for trial” and “preparing for trial . . .,
which included preparing voir dire questions, and,
going through evidence and our presentation
during voir dire”;
• March 13: attending trial “during the voir dire
process” and “preparing for trial, which included
drafting percipient witness examination outlines,
going through evidence, and preparing for
voir dire”;
• March 14: attending trial “during the voir dire
process” and “preparing for trial, which included
drafting percipient witness examination outlines
and going through evidence”;
• March 15: attending trial “during the voir dire
process”;
• March 16: “preparing for trial, which included
drafting plaintiff[’s] witness examination outlines,
preparing witnesses, reviewing and selecting
relevant evidence, and drafting Plaintiff[’s]
opening statement”;
• March 17: “reviewing [the decedent’s] original
medical chart,” “preparing our administrative
expert to testify at trial,” “preparing the plaintiff[ ]
for [her] testimony,” and “preparing for trial which
included drafting expert witness examination
outlines, drafting plaintiff’s opening statement,
27
reviewing evidence, and preparing for witness
examination”; and
• March 18: attending trial.
Counsel also declared that, “[w]hile much of the
preparation work pertains to events other than just jury
selection, opening [statements,] and taking the first witness,
myself and my associate will have to duplicate the majority of
the time and effort of trial preparation to be ready again to try
this case on May 6, 2024.” At the January 22 hearing, counsel
said she “tried painstakingly to detail my work without giving
away work product.” Counsel said, “I was very careful in
calculating my fee, which I think is very reasonable, and the time
that I spent that was very reasonable that I should never have
had to duplicate, but for the conduct out of [defendant’s attorney]
in the first trial.”
The court was entitled to rely on counsel’s declaration
describing the attorneys’ work. (Rankin, supra, 226 Cal.App.4th
at p. 698.) We can infer the court considered the cost breakdown
of each task from the table together with the details counsel
provided in her original declaration—as well as its own
experience—when it found the above “efforts . . . were required
to be duplicated upon retrial,” and the “time spent” by both
attorneys was reasonable. We also can infer the court credited
plaintiff’s counsel’s declaration that she and her associate would
have to duplicate the majority of their time and effort preparing
for the trial and that counsel had “provide[d] a conservative
recitation” of their “trial preparation efforts.” The court
reasonably could find counsel had not asked for every minute
she and her associate spent preparing for the trial but only the
28
time they reasonably would again have to spend for the retrial.12
In any event, attorney fees awarded under section 128.5 are
“not the subject of a ‘strict accounting.’ ” (Dwyer, supra, 194
Cal.App.3d at p. 1438.)
Defendant asserts plaintiff’s counsel “never submitted any
evidence of duplicated efforts, only the leadup to the mistrial.”
It implies plaintiff’s attorneys had to present time records
from the retrial to show they duplicated their efforts from the
first trial. Defendant cites no authority to support such a
requirement. Moreover, plaintiff filed her motion for sanctions
—and the court granted it—before the retrial began. The court
—noting plaintiffs who successfully establish an elder abuse
claim are entitled to attorney fees and costs—deferred its
determination of the amount of expenses, including attorney fees,
to award until the matter concluded. (Citing Welf. & Inst. Code,
§ 15657, subd. (a).) Although plaintiff separately moved—after
the retrial—for the court to determine the amount of sanctions
defendant owed plaintiff, the motion was based on the fees and
costs presented in counsel’s declaration filed with the already-
granted sanctions motion.
12 For example, defendant argued plaintiff’s “fees and costs
from March 6 . . . through March 13, 2024, were necessarily
incurred” as part of counsel’s “normal trial preparation,”
“illustrated by” plaintiff having filed “multiple versions of joint
pretrial documents up to opening statements.” But counsel
didn’t ask for fees incurred in preparing the various joint pretrial
documents (exhibit list, witness list, jury instructions) or
plaintiff’s own in limine motions, proposed special verdict, or
trial brief—all exhibits to defendant’s opposition—that would
be used for the retrial.
29
The court acted within its discretion in determining the
amount of plaintiff’s “reasonable expenses” based on the attorney
fees and costs plaintiff incurred leading up to the mistrial. They
were directly related to the sanctioned conduct—due to the
mistrial, plaintiff’s counsel had to start over.
ii. The court reasonably could find plaintiff’s
attorneys had to duplicate their trial
preparation efforts and costs
Defendant essentially concedes plaintiff’s attorneys had to
duplicate their attendance at the first trial on March 14, 15, and
18—for jury selection, opening statements, and the testimony of
the first witness—as a result of the mistrial. Defendant contends
plaintiff’s counsel’s evidence, however, did not show they had to
duplicate “any efforts” from the first trial, “except for court time.”
Plaintiff does not address this contention.
Except for one of counsel’s claimed time entries, we
conclude substantial evidence supported the court’s finding that
plaintiff’s attorneys had to “duplicate” their trial preparation
efforts from the first trial for the retrial. Those efforts, as
described above, included getting plaintiff and witnesses ready,
reviewing the evidence, and preparing for voir dire, opening
statements, and witness examinations. Defendant argued
plaintiff’s trial preparation would “not have to be repeated”
for the retrial, as the case was “now fully prepared for trial.”
We can infer the trial court rejected that argument—no
reasonable attorney would walk into a new trial, solely relying
on earlier preparations. The court reasonably could conclude
plaintiff’s attorneys would not begin the retrial without again
preparing for witness examinations and opening statements,
reviewing the evidence, talking to their client, ensuring their
30
witnesses were prepared, and preparing to select a new jury.
We cannot say no reasonable judge could find this type of work
would be repeated in a retrial. The court presided over both the
mistrial and the retrial. It was in the best position to determine
whether the time counsel spent on the case was reasonable and
reasonably reflected what counsel had to duplicate for the retrial.
Defendant took particular issue with plaintiff’s counsel’s
claimed hours relating to pretrial rulings the court made at the
March 6 FSC and March 13 proceedings. On appeal, defendant
also asserts plaintiff’s counsel was able to rely on the court’s
rulings from the initial FSC. It also notes plaintiff acknowledged
jury selection took only two days—March 14 and March 15.
We agree with defendant that the record does not support
finding plaintiff’s attorneys would have had to duplicate their
efforts attending trial on March 13. Plaintiff’s counsel declared
she and her associate spent five hours on March 13 “attending
trial in this matter during the voir dire process.” However, the
court’s minute order—and plaintiff’s respondent’s brief—state
the trial court ruled on two motions in limine and conferred with
counsel about the witness list and exhibits on that date. Jury
selection did not begin until March 14. As defendant noted,
the court’s pretrial rulings from the first trial did not have to be
relitigated for the retrial. Accordingly, there would have been
no need for the parties or court to duplicate the proceedings
that took place on March 13 for the retrial.
As for the FSC, however, plaintiff’s counsel would not have
had to attend the second FSC on April 29 for the retrial if there
hadn’t been a mistrial. The court’s rulings at the March 6 FSC
may have applied to the retrial, but a second FSC was scheduled
and required. Defendant argued, as it does on appeal, plaintiff’s
31
counsel opted to delay the retrial until May 6—rather than
proceed the day after the mistrial—so that she could file the
sanctions motion. In essence, defendant argues that “choice”
caused counsel to incur travel costs unnecessarily and the
setting of another FSC. The trial court implicitly rejected that
contention, as do we. Plaintiff’s counsel explained she could not
reschedule her expert witnesses that quickly. One was on a flight
to the trial and wouldn’t have been able to wait while the parties
picked a new jury. And before agreeing to a May 6 trial date,
counsel attempted unsuccessfully to reach her experts by phone.
She did tell the court she wanted to file a motion for sanctions
but that was secondary to the mistrial having affected the
scheduling of her experts. Accordingly, the court reasonably
could find plaintiff’s expenses due to the mistrial included
those relating to the FSC.
As for the $13,086.13 awarded in costs, the court found
plaintiff’s request was supported by the “ledger” plaintiff had
submitted. Plaintiff’s counsel also declared that, based on her
experience, the costs were reasonable and necessary to prepare
for the trial, could not be “ ‘re-used’ at the next trial setting, and
will have to be incurred again.” Counsel explained the costs
included “travel expenses for me, my associate, and our assistant
to attend the trial, which we will have to do again,” and travel
expenses for plaintiff’s experts, including the expert who was
“mid-air” when the court declared the mistrial. (Plaintiff’s
attorneys are in Texas.)
Defendant argues plaintiff’s counsel unnecessarily incurred
travel expenses by choosing a later retrial date. We have rejected
that argument. Defendant also contends that, because court
rules required counsel’s personal appearance at the FSC, her
32
travel time there must be excluded. (Citing Super. Ct. L.A.
County, Local Rules, rule 3.25(f).) Again, plaintiff’s counsel had
to travel to attend a second FSC due to the mistrial. Sufficient
evidence supported the court’s award of costs.
In sum, the evidence supported the court’s award of fees
and costs except for five hours of time for plaintiff’s lead attorney
($3,750.00) and five hours of time for her associate ($1,750.00).13
iii. The court did not abuse its discretion in finding
counsel’s hourly rates reasonable
Defendant contends the trial court abused its discretion in
applying counsel’s requested hourly rates after initially finding
plaintiff’s counsel “did not provide any support, other than their
own conclusions, that $750 and $350 per hour are prevailing and
reasonable market rates in the community for similar actions.”
As discussed, the court was well aware of its earlier order and
defendant’s argument, but it was entitled to reevaluate counsel’s
declaration and consider argument before ruling on the amount
of fees to award. Counsel’s declaration and the court’s own
experience substantially supported the court’s ultimate finding
that the rates of $750 per hour for plaintiff’s lead attorney—an
attorney with “23 years of experience, primarily litigating elder
abuse cases”—and $350 per hour for an associate attorney were
“reasonable in light of the specialized nature of the litigation.”
A reasonable hourly rate for purposes of calculating the
lodestar is the reasonable market rate paid to attorneys of
similar skill in the area. (Ketchum, supra, 24 Cal.4th at p. 1133;
Rankin, supra, 226 Cal.App.4th at p. 700 [market rate generally
is “ ‘based on the rates prevalent in the community where the
13 These calculations are based on the hourly rates of $750.00
and $350.00.
33
court is located’ ”].) The market rate standard applies even if the
attorneys claiming the fees represented the client on a contingent
fee basis, as is the case here. (Rankin, at p. 701.) Courts “ ‘will
look to equally difficult or complex types of litigation to determine
which market rates to apply.’ ” (Id. at p. 700.)
Plaintiff’s lead attorney—“the managing partner in a
national litigation practice involving elder abuse claims that are
filed all over the country”—described under penalty of perjury
her qualifications and experience, as well as the complex
issues and evidence, the “high evidentiary standard,” and the
specialized knowledge, involved in litigating an elder abuse case.
Counsel declared, “Based upon my independent research and
conversations with colleagues, attorneys practicing in the
geographic area with my skill set charge between $500–$750
per hour as part of their normal retainer for hourly legal services,
but the attorneys handling elder abuse cases generally work on
a contingency fee basis.” She further declared that, when hired
on an hourly basis—based on her training, experience of over
20 years, and the nature of her practice—her hourly rate is
$750.00. Counsel also declared—again, based on her research—
the standard hourly rate in the area for associate attorneys is
between $250 and $350. Counsel declared that, if they billed
for their services instead of being paid on a contingent fee basis,
they would bill the associate’s time at $350.00 per hour due to
the specialized nature of the practice. At the January 22 hearing,
plaintiff’s counsel also argued she had “investigated and
researched” the prevailing rates.
We cannot conclude the court was clearly wrong in finding
$750 and $350 per hour were reasonable rates given the nature
of this case. The court acted within its discretion in relying on
34
counsel’s declaration and also had personal knowledge of the
quality of counsel’s work and the complexity of the issues, having
presided over the mistrial and retrial.
DISPOSITION
We affirm the court’s March 18, 2024 order granting the
mistrial and its May 3, 2024 order granting plaintiff’s motion for
sanctions under section 128.5. We partially reverse the court’s
January 29, 2025 order awarding plaintiff $68,450.00 in attorney
fees and $13,086.13 in costs as sanctions against defendant and
its attorney. We direct the court to vacate its order and enter
a new order awarding plaintiff $62,950.00 in attorney fees and
$13,086.13 in costs. In all other respects the order is affirmed.
The parties shall bear their own costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EGERTON, Acting P. J.
We concur:
ADAMS, J.
HANASONO, J.
35