Judge Mark E. Windham, Case Number: 20STLC05551, Date: 2023-04-26 Tentative Ruling

Judge: Mark E. Windham, Case: 20STLC05551, Date: 2023-04-26 Tentative Ruling

Case Number: 20STLC05551 Hearing Date: April 26, 2023 Dept: 26

Vern Perry Asphalt Paving, Inc. v. Jimmy E’s Bar & Grill, et al.

MOTION FOR ATTORNEY’S FEES

(CCP §§ 1032, 1033.5; Civil Code § 1717)

TENTATIVE RULING:

Plaintiff Vern Perry Asphalt Paving, Inc.’s Motion for Attorney’s Fees is GRANTED IN THE AMOUNT OF $53,315.00. PLAINTIFF IS TO FILE AND SERVE PROPOSED JUDGMENT WITHIN 20 DAYS OF THIS ORDER.

ANALYSIS:

On July 20, 2020, Plaintiff Vern Perry’s Asphalt Paving, Inc. (“Plaintiff”) filed the Complaint in this action against Defendants Jimmy E’s Bar & Grill, Jimmy Eleopoulos dba Jimmy E’s Bar & Grill, Jimmy E’s Inc. (“Defendant Jimmy E’s”), and Mitchell Land & Improvement Co. (“Defendant Mitchell Land”). The Complaint alleged breach of contract, common counts, and foreclosure of mechanic’s lien. Defendants Jimmy E’s and Mitchell Land filed an Answer and Cross-Complaint on October 30, 2020. The Cross-Complaint was brought against Plaintiff and American Contractors Indemnity Company for breach of contract, interference with contract and economic advantage, negligence, unfair business practices, demand on contractor’s bond, and declaratory relief. On January 25-26, 2022 and February 10, 2022, the Court granted Plaintiff’s discovery motions against Defendants Jimmy E’s and Mitchell Land. (Minute Orders, 01/25/22, 01/26/22 and 02/10/22.)

On August 2, 2022, the matter came for trial and the Court held that judgment was to be entered in Plaintiff’s favor and against Defendant Jimmy E’s in the amount of $10,557.00. (Minute Order, 08/02/22.) On December 9, 2022, the Court granted Plaintiff’s ex parte application for an order that the clerk correct the minute order and for Plaintiff to resubmit a proposed judgment. (Minute Order, 12/09/22.) The Court further ordered that costs and attorney’s fees must be proved by declaration before entry of judgment. (Ibid.)

Plaintiff filed a Memorandum of Costs and the instant Motion for Attorney’s Fees on December 19, 2022. The Motion initially came for hearing on March 29, 2023 and was continued by the Court to April 26, 2023. Defendant Jimmy E’s filed its opposition on April 13, 2023 and Plaintiff replied on April 19, 2023.

Discussion

Entitlement to Attorney’s Fees

A prevailing party in entitled to recover costs, including attorneys’ fees when authorized by contract, law or statute. (Code Civ. Proc., § 1032, subd. (a)(4); § 1033.5, subd. (a)(10).) Plaintiff moves for fees under Civil Code section 8800, subdivision (c), which states “[i]n an action for collection of the amount wrongfully withheld, the prevailing party is entitled to costs and a reasonable attorney’s fee.” (Civ. Code, § 8800, subd. (c).) Plaintiff is the prevailing party following trial as “the party with a net monetary recovery.” (See Code Civ. Proc., § 1032, subd. (a)(4).) Defendant Jimmy E’s opposition provides no legal authority to support its argument that Plaintiff is not the prevailing party under the law. (Opp., p. 2:5-18.)

Defendant Jimmy E’s also argues that it was blindsided by the prompt payment penalty sought by Plaintiff under Civil Code section 8800 and which provides the basis for the attorney fees sought herein. In reply, Plaintiff points out that the prompt payment penalty argument was set forth in the trial brief served on Defendant Jimmy E’s on April 4, 2022. (Reply, Clauss Decl., Exh. H, pp. 5-6.) This was four months before the case came for trial on August 2, 2022. Also, to the extent Defendant Jimmy E’s argues the merits of the already-litigated prompt payment penalty, this is not the appropriate time nor manner to challenge the ruling.

A motion for attorneys’ fees must be filed and served with the time for filing a notice of appeal under Cal. Rules of Court Rule 8.822. (Cal. Rules of Court Rule 3.1702(a).) Cal. Rules of Court Rule 8.822 states that an attorneys’ fees motion must be filed within either (1) 30 days after the trial court clerk served the party filing the motion with notice of entry of judgment; or (2) 90 days after entry of judgment. (Cal. Rules of Court 8.822(1).) Here, judgment has yet to be entered, making the instant motion timely.

Calculation of Attorney’s Fees

Plaintiff asks for attorney’s fees of $52,190.00 based on 130.4 hours billed at a range from $250.00 to $450.00 per hour. (Motion, Clauss Decl., ¶¶4-5 and Exhs. A-B.) These hourly fees are appropriate based on the experience of Plaintiff’s counsel and the complexity of this action, which included foreclosure of a mechanic’s lien.

Regarding the number of hours, Plaintiff’s counsel billed 120.4 hours from July 1, 2020 through December 5, 2022. (Ibid.) The work performed consisted of developing the legal theories of this action; reviewing, analyzing and organizing documents for trial; communicating with the client on the status of the action; drafting pleadings, discovery and briefs; conducting discovery; settlement discussions and other communication with opposing counsel; trial work; and post-trial work. (Id. at ¶15 and Exh. C.) In December 2022, Plaintiff’s counsel billed an additional ten hours valued at $4,500.00. (Id. at Exh. B.)

Defendant Jimmy E’s argues in opposition that Plaintiff’s counsel used a scorched-earth litigation strategy to ratchet up attorney fees and costs in this action. First, Defendant Jimmy E’s argues that Plaintiff could have resolved this informally before filing a lawsuit but deliberately sought to derail arbitration by the Contractors State Licensing Board (“CSLB”). (Opp., Todd Decl., ¶¶2-4, 7-11.) It is not clear what impact Plaintiff’s failure to engage in informal settlement discussion has on a motion for attorney fees and the opposition cites no authority for the Court’s consideration. The reply does not address any of the pre-litigation or early litigation settlement efforts and instead points to settlement talks Plaintiff initiated in March 2022, almost two years after the action was filed. (Reply, pp, 5:7-6:12; Supp. Clauss Decl., ¶¶5-9 and Exhs. I-M.) While this does support Defendant Jimmy E’s contention that Plaintiff did not make an effort to limit its expenses and filed this action to ensure arbitration with the CSLB would not proceed, the opposition points to no specific time spent on this action that was unreasonable or unnecessary to the litigation that would entail reducing the award sought.

The second part of Defendant Jimmy E’s argument revolves around the quality of Plaintiff’s work, presumably to challenge the damages Plaintiff recovered. (Id. at ¶¶5-6.) Like the prompt penalty payment argument, this pertains to the merits of the action, which was addressed at trial and has no bearing on the request for attorney fees. Finally, Defendant Jimmy E’s makes an appeal to the equities of the attorney fees sought in light of the judgment, but again, cites no authority for the Court’s consideration to reduce the fee award.

Based on the work performed over two-and-a-half years to prosecute this action against multiple defendants, address the cross-complaint, and during trial, the Court finds the number of hours billed reasonable and necessary to Plaintiff’s success in this case. An additional $1,125.00 for 2.5 hours of attorney time billed on the reply is also awarded. (Reply, Supp. Clauss Decl., ¶10.) The request for attorney’s fees is granted in the amount of $

Conclusion

Plaintiff Vern Perry Asphalt Paving, Inc.’s Motion for Attorney’s Fees is GRANTED IN THE AMOUNT OF $53,315.00. PLAINTIFF IS TO FILE AND SERVE PROPOSED JUDGMENT WITHIN 20 DAYS OF THIS ORDER.

Moving party to give notice.