FIRST TENTATIVE RULING:
OPPOSITION: None submitted.
Having read and considered the arguments of the moving party, the court tentatively grants the motion and rules as follows: GRANT: Pursuant to CC §1717; CRC 3.1702.
1. No opposition submitted.
2. The party claiming fees not based on the court’s established schedule of attorney’s fees for actions on a contract, bears the burden of proof on the “reasonableness” of the fees. CJER, Civil Proceedings - Trial, §16.70.
3. The declaration of counsel states: “This firm charges and bills our client $250 per hour for work of this type...” However, the itemization claims an hourly rates of $400, $325 and $350, for a total of $44,292.50 (73.4 hrs).
4. Pursuant to CC §1717 and the attorney fee provision in the lease agreement, plaintiff is awarded $20,185.00 in attorney’s fees against Afsaneh Mobasser. (Calculated as follows: 73.4 hrs. @ $275/hr.)
.....................................................................................
SECOND Tentative Ruling:
DEPARTMENT 6 LAW AND MOTION RULINGSParties may submit on tentative rulings by notifying the clerk by 4:00 PM the day before the hearing.
Case Number: 12U00223 Hearing Date: March 29, 2013 Dept: 6
[REVISED]
Tentative Ruling
Wolf & Associates v. Afsaneh Mobasser
12U00223
Plaintiff has filed a Motion for Attorneys Fees
RELIEF REQUEST: Attorney fees of $44,292.50 (56 hrs @$400, 12.4 hrs @ $325
and 6 hrs @ $350).
SUMMARY OF ARGUMENT:
Defendant was served with a 3-day notice to cure covenant or quit requiring defendant to remove all plants from her balcony or vacate the rental unit. Defendant was disturbing the quiet enjoyment of other tenants by watering the plants and allowing the water to cascade over the side of the balcony into the interior walls and onto the courtyard below.
The trial was held on 10-19-12, with judgement in favor of plaintiff for possession and restitution of the premises. Unpaid rent and holdover damages was entered in favor of plaintiff for $15,096.51 with costs of $1,435.60.
The lease agreement contains an attorney fee provision awarded to the prevailing party if legal action is brought by either party to enforce the lease. Therefore, plaintiff is entitled to an award of attorney fees pursuant to the lease and CC §1717.
OPPOSITION:
Defendant claims that the Motion for Attorney’s Fees is untimely as it was due 30 days after the service of the Notice of Entry of Judgment, pursuant to CRC 3.1702 and CRC 8.822 and/or 8.823.
Defendant also argues that the amount requested is excessive, outrageous and absurd.
It appears that the 4 attorneys expended more time telephoning, conferencing and e-mailing each other than on legal research for the case. It also is important to note that the court awarded $1,075.60 for the video taped deposition of Deborah Daly. She should not have been provided this accommodation since she does not meet the criteria per the California code. Ms. Daly resides a few miles from the Beverly Hills court.
Mr. Brennen assesses hours for Jury Preparation, but defendant wonders which jury since she was denied a jury trial. No fees should be awarded since no evidence has been provided as to their reasonableness.
Having read and considered the arguments of the moving party, the court tentatively grants the motion and rules as follows:
Please note: Here Judge Brown uses CCP 684 The law of which section 684.120 is a part of The Enforcement of Judgments Law. It has nothing to do with Attorney Fees or motions of attorney fees.It deals only with existing judgments. That section only deals with service by mail and not filing. It is the wrong application period. ALSO CRC Rule 3.1702 says that an attorney fee motion must be served within the time for filing a notice of appeal. CCP 1013 Section expressibly says that there is not extension in the case of a notice of appeal.
1. Defendant argues that the Motion for Attorney’s Fees is untimely, since the “Notice of Entry of Judgment” was mailed on 1-14-13, and the motion was not filed until 2-15-13, more than 30 days after the “Notice of Entry of Judgment.”
2. However,, CCP §684.120(b) provides: “Service by mail is complete at the time of deposit; but, unless the court prescribes a shorter period of time, any prescribed period of notice and any right or duty to do any act or make any response within any prescribed period or on a date certain after a paper is served by mail is extended: (1) Five days if the place of address is within the State of California.” Therefore, the motion is timely.
3. The party claiming fees not based on the court’s established schedule of attorney’s fees for actions on a contract, bears the burden of proof on the “reasonableness” of the fees. (CJER, Civil Proceedings - Trial, §16.70).
4. The declaration of counsel states: “This firm charges and bills our client $250 per hour for work of this type...” However, the Itemization claims an hourly rate of $400, $325 and $350, for a total of $44,292.50 (73.4 hrs).
5. If the court awards 73.4 hrs @ $275.00 per hour, the total is $20,185.00 for attorney’s fees. The court finds this to be a more reasonable amount for this case.
6. Therefore, pursuant to CC §1717 and the attorneys fee provision in the lease agreement, plaintiff is awarded $20,185.00 in attorney’s fees against Afsaneh Mobasser.
...............................................................
Final Ruling of Court, denying hearing.
TAKEN FROM THE COURT SITE:
Case Number: 12U00223 Hearing Date: April 18, 2013 Dept: 6
FINAL RULING
Wolf & Associates v. Afsaneh Mobasser
12U00223
Plaintiff has filed a Motion for Attorneys Fees
[Note: Oral argument was heard by the court on March 29, 2013. Thereafter, the court directed the parties to submit supplemental written briefing on the issue of the timeliness of plaintiff’s motion. No further oral argument by the parties was ordered, nor shall be heard, by the court.]
RELIEF REQUEST: Attorney fees of $44,292.50 (56 hrs @$400, 12.4 hrs @ $325
and 6 hrs @ $350).
SUMMARY OF ARGUMENT:
Defendant was served with a 3-day notice to cure covenant or quit requiring defendant to remove all plants from her balcony or vacate the rental unit. Defendant was disturbing the quiet enjoyment of other tenants by watering the plants and allowing the water to cascade over the side of the balcony into the interior walls and onto the courtyard below.
The trial was held on 10-19-12, with judgment in favor of plaintiff for possession and restitution of the premises. Unpaid rent and holdover damages was entered in favor of plaintiff for $15,096.51 with costs of $1,435.60.
The lease agreement contains an attorney fee provision awarded to the prevailing party if legal action is brought by either party to enforce the lease. Therefore, plaintiff is entitled to an award of attorney fees pursuant to the lease and CC §1717.
OPPOSITION:
Defendant claims that the Motion for Attorney’s Fees is untimely as it was due 30 days after the service of the Notice of Entry of Judgment, pursuant to CRC 3.1702 and CRC 8.822 and/or 8.823. Defendant also argues that the amount requested is excessive, outrageous and absurd. It appears that the attorney expended more time telephoning, conferencing and e-mailing each other than on legal research for the case. It also is important to note that the court awarded $1,075.60 for the video taped deposition of Deborah Daly. She should not have been provided this accommodation since she does not meet the criteria per the California code. Ms. Daly resides a few miles from the Beverly Hills court. Mr. Brennen assesses hours for jury preparation, but defendant wonders which jury since she was denied a jury trial. No fees should be awarded since no evidence has been provided as to their reasonableness.
MOVING PARTY’S SUPPLEMENTAL ARGUMENT:
At the hearing, defendant argues that the motion was untimely since it was one day late. Plaintiff’s counsel argues that the only issues are (1) whether the judge has discretion to extend the time to file a motion for attorney’s fees absent a stipulation and based on the circumstances of this case, and (2) did the post judgment motions by the defendant extend the time limit to file a motion for attorney’s fees by operation of law pursuant to CRC 8.823(a).
CRC 3.1702(d) gives the trial judge discretion to extend the time for filing a motion for attorney’s fees. Plaintiff rejects defendant’s contention that a rule 3.1702(d) extension of time must be granted before the expiration of the time period. If the drafters intended that the extension be granted before the expiration, they would have said so as they did in rule 3.1702(b)(2), which provides: "The parties may, by stipulation filed before the expiration of the time allowed under (b)(1) extend the time for filing a motion for attorney’s fees..."
Defendants numerous motions and ex parte applications after trial causing delay and the copious amounts of extra work on this matter after the judgment was entered. Therefore, for good cause the trial court has the power to extend the time for plaintiff filing the motion for attorney’s fees.
CRC 8.823 operates to increase the time to appeal. Plaintiff argues that after the Court Clerk mailed the Notice of Entry of Judgment on 1-14-13, defendant filed a motion for stay of judgment which was denied but added a 15-day extension to the time for filing an appeal and a motion for attorney’s fees.
On 2-7-13, defendant filed an ex parte application for an Order Granting Relief from Forfeiture of the lease. Pursuant to CRC 8.823, this extends the time to file an appeal and a motion for attorney’s fees by another 15 days.
It is abundantly clear, plaintiff’s motion for attorney’s fees was timely.
OPPOSITION TO MOVING PARTY’S SUPPLEMENTAL ARGUMENT:
Defendant argues that plaintiff’s counsel added the language "or the functional equivalent" to the code section and claims that the two post-trial motions brought by defendant are not the functional equivalent of the motions which are set forth in the rule (move for a new trial, vacate judgment or reconsider an appealable order). Moreover, even assuming that the functional equivalent argument has reasonable merit, it surely could not apply here because each of the motions described in the rule has the possibility of overturning the judgment. This is not the case with either of the motions defendant brought post-trial.
Plaintiff has not shown good cause why the time for filing the motion should be extended. Plaintiff claimed that defendants numerous motions and ex parte application after trial caused copious amounts of extra work. Nowhere is there an explanation, or is there a declaration, stating how the post-trial activities prevented plaintiff from timely bringing this motion.
Having read and considered the arguments of the parties, the court grants the motion and rules as follows:
1. On 6-30-06, the California Rules of Court were reorganized and adopted on 1-1-07. Prior to 1-1-07, the cases considering the issue of untimely filed Motion for Attorney’s Fees, held that the time limit and procedural requirements were not jurisdictional and the judge had discretion to allow a late filed motion for attorney’s fees if it was not prejudicial to the opposing party. CCP §473(b) was the basis for the motion.
2. After 2007, and after renumbering of the CRC, the cases hold that the trial court has the power to extend the time to file a motion for attorney’s fees based on mistakes of law which constitute excusable neglect. CRC 3.1702(d) provides: "Extensions. For good cause, the trial judge may extend the time for filing a motion for attorney's fees in the absence of a stipulation or for a longer period than allowed by stipulation."
3. CRC 3.1702(d) is remedial and is to be given a liberal rather than strict interpretation. Plaintiff has cited the holding in Lewow v. Surfside III Condo Owners Association (2012) 203 C.A. 4th 128, 134. "We reject appellant's contention that a rule 3.1702(d) extension of time must be granted before the expiration of the 60-day period. If the drafters of rule 3.1702(d) intended that the extension be granted before the expiration of the 60-day period, they would have said so as they did in rule 3.1702(b)(2), which provides: ‘The parties may, by stipulation filed before the expiration of the time allowed under (b)(1) [(the 60-day period)], extend the time for filing a motion for attorney's fees.’ Rule 3.1702(d) contains no such limitation: ‘For good cause, the trial judge may extend the time for filing a motion for attorney's fees in the absence of a stipulation or for a longer period than allowed by stipulation.’"
4. The record in this action reflects the fact that defendant did file several post-trial applications and/or motions which required the significant attention and response of plaintiff’s counsel. The court relies upon that fact in finding good cause for the extension of time for plaintiff to file its motion for attorney’s fees.
5. Pursuant to CC §1717 and the attorney fee provision in the lease agreement, plaintiff is awarded $20,185.00 in attorney’s fees against Afsaneh Mobasser. (Calculated as follows: 73.4 hrs. @ $275/hr.).
From the online Court Site:
04/18/2013 CAUSE CALLED AT 09:00A M, IN DEPT. 006 , HON. LESLIE
E. BROWN PRESIDING FOR HEARING RE: PLAINTIFF'S MOTION
FOR ATTORNEYS FEES; . THE COURT RULES AS FOLLOWS: THE
COURT HAS READ AND CONSIDERED ALL WRITTEN DOCUMENTS
REGARDING PLAINTIFF'S MOTION FOR ATTORNEYS FEES.
PLAINTIFF IS AWARDED $20,185.00 IN ATTORNEY'S FEES AGAINST
DEFENDANT AFSANEH MOBASSER. SEE COPY OF THE COURT'S
FINAL RULING ATTACHED. CLERK TO GIVE NOTICE.
Hearing was denied by Honorable Judge Leslie E. Brown. There was no hearing. I attended and insisted to argue, I was told to go home.
Case Number: 12U00223 Hearing Date: April 18, 2013 Dept: 6
FINAL RULING
Wolf & Associates v. Afsaneh Mobasser
12U00223
Plaintiff has filed a Motion for Attorneys Fees
[Note: Oral argument was heard by the court on March 29, 2013. Thereafter, the court directed the parties to submit supplemental written briefing on the issue of the timeliness of plaintiff’s motion. No further oral argument by the parties was ordered, nor shall be heard, by the court.]
RELIEF REQUEST: Attorney fees of $44,292.50 (56 hrs @$400, 12.4 hrs @ $325
and 6 hrs @ $350).
SUMMARY OF ARGUMENT:
Defendant was served with a 3-day notice to cure covenant or quit requiring defendant to remove all plants from her balcony or vacate the rental unit. Defendant was disturbing the quiet enjoyment of other tenants by watering the plants and allowing the water to cascade over the side of the balcony into the interior walls and onto the courtyard below.
The trial was held on 10-19-12, with judgment in favor of plaintiff for possession and restitution of the premises. Unpaid rent and holdover damages was entered in favor of plaintiff for $15,096.51 with costs of $1,435.60.
The lease agreement contains an attorney fee provision awarded to the prevailing party if legal action is brought by either party to enforce the lease. Therefore, plaintiff is entitled to an award of attorney fees pursuant to the lease and CC §1717.
OPPOSITION:
Defendant claims that the Motion for Attorney’s Fees is untimely as it was due 30 days after the service of the Notice of Entry of Judgment, pursuant to CRC 3.1702 and CRC 8.822 and/or 8.823. Defendant also argues that the amount requested is excessive, outrageous and absurd. It appears that the attorney expended more time telephoning, conferencing and e-mailing each other than on legal research for the case. It also is important to note that the court awarded $1,075.60 for the video taped deposition of Deborah Daly. She should not have been provided this accommodation since she does not meet the criteria per the California code. Ms. Daly resides a few miles from the Beverly Hills court. Mr. Brennen assesses hours for jury preparation, but defendant wonders which jury since she was denied a jury trial. No fees should be awarded since no evidence has been provided as to their reasonableness.
MOVING PARTY’S SUPPLEMENTAL ARGUMENT:
At the hearing, defendant argues that the motion was untimely since it was one day late. Plaintiff’s counsel argues that the only issues are (1) whether the judge has discretion to extend the time to file a motion for attorney’s fees absent a stipulation and based on the circumstances of this case, and (2) did the post judgment motions by the defendant extend the time limit to file a motion for attorney’s fees by operation of law pursuant to CRC 8.823(a).
CRC 3.1702(d) gives the trial judge discretion to extend the time for filing a motion for attorney’s fees. Plaintiff rejects defendant’s contention that a rule 3.1702(d) extension of time must be granted before the expiration of the time period. If the drafters intended that the extension be granted before the expiration, they would have said so as they did in rule 3.1702(b)(2), which provides: "The parties may, by stipulation filed before the expiration of the time allowed under (b)(1) extend the time for filing a motion for attorney’s fees..."
Defendants numerous motions and ex parte applications after trial causing delay and the copious amounts of extra work on this matter after the judgment was entered. Therefore, for good cause the trial court has the power to extend the time for plaintiff filing the motion for attorney’s fees.
CRC 8.823 operates to increase the time to appeal. Plaintiff argues that after the Court Clerk mailed the Notice of Entry of Judgment on 1-14-13, defendant filed a motion for stay of judgment which was denied but added a 15-day extension to the time for filing an appeal and a motion for attorney’s fees.
On 2-7-13, defendant filed an ex parte application for an Order Granting Relief from Forfeiture of the lease. Pursuant to CRC 8.823, this extends the time to file an appeal and a motion for attorney’s fees by another 15 days.
It is abundantly clear, plaintiff’s motion for attorney’s fees was timely.
OPPOSITION TO MOVING PARTY’S SUPPLEMENTAL ARGUMENT:
Defendant argues that plaintiff’s counsel added the language "or the functional equivalent" to the code section and claims that the two post-trial motions brought by defendant are not the functional equivalent of the motions which are set forth in the rule (move for a new trial, vacate judgment or reconsider an appealable order). Moreover, even assuming that the functional equivalent argument has reasonable merit, it surely could not apply here because each of the motions described in the rule has the possibility of overturning the judgment. This is not the case with either of the motions defendant brought post-trial.
Plaintiff has not shown good cause why the time for filing the motion should be extended. Plaintiff claimed that defendants numerous motions and ex parte application after trial caused copious amounts of extra work. Nowhere is there an explanation, or is there a declaration, stating how the post-trial activities prevented plaintiff from timely bringing this motion.
Having read and considered the arguments of the parties, the court grants the motion and rules as follows:
1. On 6-30-06, the California Rules of Court were reorganized and adopted on 1-1-07. Prior to 1-1-07, the cases considering the issue of untimely filed Motion for Attorney’s Fees, held that the time limit and procedural requirements were not jurisdictional and the judge had discretion to allow a late filed motion for attorney’s fees if it was not prejudicial to the opposing party. CCP §473(b) was the basis for the motion.
2. After 2007, and after renumbering of the CRC, the cases hold that the trial court has the power to extend the time to file a motion for attorney’s fees based on mistakes of law which constitute excusable neglect. CRC 3.1702(d) provides: "Extensions. For good cause, the trial judge may extend the time for filing a motion for attorney's fees in the absence of a stipulation or for a longer period than allowed by stipulation."
3. CRC 3.1702(d) is remedial and is to be given a liberal rather than strict interpretation. Plaintiff has cited the holding in Lewow v. Surfside III Condo Owners Association (2012) 203 C.A. 4th 128, 134. "We reject appellant's contention that a rule 3.1702(d) extension of time must be granted before the expiration of the 60-day period. If the drafters of rule 3.1702(d) intended that the extension be granted before the expiration of the 60-day period, they would have said so as they did in rule 3.1702(b)(2), which provides: ‘The parties may, by stipulation filed before the expiration of the time allowed under (b)(1) [(the 60-day period)], extend the time for filing a motion for attorney's fees.’ Rule 3.1702(d) contains no such limitation: ‘For good cause, the trial judge may extend the time for filing a motion for attorney's fees in the absence of a stipulation or for a longer period than allowed by stipulation.’"
4. The record in this action reflects the fact that defendant did file several post-trial applications and/or motions which required the significant attention and response of plaintiff’s counsel. The court relies upon that fact in finding good cause for the extension of time for plaintiff to file its motion for attorney’s fees.
5. Pursuant to CC §1717 and the attorney fee provision in the lease agreement, plaintiff is awarded $20,185.00 in attorney’s fees against Afsaneh Mobasser. (Calculated as follows: 73.4 hrs. @ $275/hr.).
From the online Court Site:
04/18/2013 CAUSE CALLED AT 09:00A M, IN DEPT. 006 , HON. LESLIE
E. BROWN PRESIDING FOR HEARING RE: PLAINTIFF'S MOTION
FOR ATTORNEYS FEES; . THE COURT RULES AS FOLLOWS: THE
COURT HAS READ AND CONSIDERED ALL WRITTEN DOCUMENTS
REGARDING PLAINTIFF'S MOTION FOR ATTORNEYS FEES.
PLAINTIFF IS AWARDED $20,185.00 IN ATTORNEY'S FEES AGAINST
DEFENDANT AFSANEH MOBASSER. SEE COPY OF THE COURT'S
FINAL RULING ATTACHED. CLERK TO GIVE NOTICE.
Hearing was denied by Honorable Judge Leslie E. Brown. There was no hearing. I attended and insisted to argue, I was told to go home.
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