Plaintiffs’ Motion for Attorney’s fees and costs; Defendant’s Motion for Attorney fees and costs; Motion to Tax Costs
CASE NUMBER: 22CV-0200321 Tentative Ruling on Defendant and Plaintiffs’ Separate Motions for Attorney’s Fees and Costs: Plaintiffs’ move for an order awarding attorney’s fees and costs for a total of $255,507.56 against Defendant. Defendant opposes the motion. Additionally, Defendant moves for an order awarding attorney’s fees and costs of $239,561.99, less the judgment amount of $24,174.63, for a total of $215,387.36. Plaintiffs oppose the motion.
Request for Judicial Notice. Defendant requests the Court take judicial notice of the Complaint in this case, which includes Plaintiffs’ First Cause of Action for breach of contract, and the attorney fee provision of the contract (paragraph 25). This request is granted pursuant to Evid. Code §§ 452(d) and 453.
Objections. 3
Plaintiffs’ objection to the declaration of Michael Ricks. Objection 1. Overruled as to paragraphs 3, 4, and 6. This information is generally also contained in Defendant’s memorandum of points and authorities and is evidence of the work counsel performed on the case. Sustained as to paragraph 5. Objection 2. Overruled. This information is evidence of the work performed by counsel. Objection 3. Sustained. Objection 4. Sustained. Objection 5. Sustained pursuant to Evid. Code § 1119 as to the sentence “I know this because I actually attended the meditation that did occur, and there were no claims of unpermitted structures involved.”
Defendant’s objection to the supplemental declaration of Ethan Glaubiger. Defendant objects to the entirety of the declaration of Ethan Glaubiger on the grounds that, for the first time, Plaintiffs raise that their failure to engage in prelitigation mediation was to preserve the statute of limitations. Plaintiffs claim the object of filing the initial complaint was to preserve a 2-year statute of limitations on an oral contract. Notably, Plaintiffs did not sue on an oral contract but for breach of a written contract which has a 4-year statute of limitations. “New evidence is generally not permitted with reply papers.”
Valentine v. Plum Healthcare Group, LLC (2019) 37 Cal.App.5th 1076, 1089
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Merits. Both Plaintiffs and Defendant contend they are the prevailing party and are entitled to attorney’s fees and costs. The Court must first determine who is the prevailing party. Plaintiffs argue they are the prevailing party under CCP § 1032 and because the causes of action are intertwined. Defendant argues that she is the prevailing party under Civ. Code § 1717, CCP § 1032, the “pragmatic test” under Santisis v. Goodin (1998) 17 Cal.4th 599, and because Plaintiffs failed to mediate the unpermitted structures issues in violation of the contract.
Prevailing party. Both CCP § 1032 and Civ. Code § 1717 permit an award of attorney’s fees and costs to the prevailing party. Under CCP § 1032, “[e]xcept as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.” Civ. Code § 1717 states that, “[i]n any action on a contract, where the contract specifically provides that attorney’s fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney’s fees in addition to other costs.”
“Section 1717 is the applicable statute when determining whether and how attorney's fees should be awarded under a contract. It is the statute that expressly deals with attorney's fees under a contract, and to apply section 1032 in such cases would obviate section 1717.” Sears v. Baccaglio (1998) 60 Cal.App.4th 1136, 1157. “[W]here section 1032 is inapplicable or where these criteria are found ill-suited, the court should begin its inquiry in any contract action with the provisions of section 1717 and be guided in the proper exercise of its discretion by the equitable principles fundamental to that section.” Id. Based on the foregoing, the preference is to apply Civ. Code § 1717.
Before § 1717 can be applied, it must be determined whether the parties entered an agreement for the payment of fees and the scope of such an agreement. Maynard v. BTI Group, Inc. (2013) 216 Cal.App.4th 984, 989. “If the contractual provision limits an award of attorney fees to the party who has prevailed on the contract, fees may be awarded only to that party, and Civil Code section 1717 is invoked.” However, the agreement “may be broad enough to cover tort as well as contract causes of action.” Hasler v. Howard (2005) 130 Cal.App.4th 1168, 1171. 4
“Like provisions referring to any claim ‘in connection with’ a particular agreement or to any action ‘arising out of’ an agreement, an attorney fee provision awarding fees based on the outcome of ‘any dispute’ encompasses all claims, whether in contract, tort, or otherwise.” Maynard, supra, (2013) 216 Cal.App.4th 984, 993. “If the attorney fee provision does encompass noncontractual claims, the prevailing party entitled to recover fees normally will be the party whose net recovery is greater, in the sense of most accomplishing its litigation objectives, whether or not that party prevailed on a contract cause of action.”
Id. “[I]f the attorney fee provision encompasses fees incurred in connection with any dispute arising out of the contract, in order to determine the prevailing party the contract cause of action should not be viewed in isolation from other related claims that were litigated.” Id. “If...the contract allows the prevailing party to recover attorney fees but does not define ‘prevailing party’ or expressly either authorize or bar recovery of attorney fees in the event of an action is dismissed, a court must base its attorney fees decision on a pragmatic definition of the extent to which each party has realized its litigation objectives, whether by judgment, settlement, or otherwise.”
Santisas, supra, (1998) 17 Cal.4th 599, 622.
Here, section 25 of the parties’ purchase agreement (the “Agreement”) states, “[i]n any action, proceeding, or arbitration between the Buyer and Seller arising out of this Agreement, the prevailing Buyer or Seller shall be entitled to reasonable attorney fees and costs from the non-prevailing Buyer or Seller, except as provided in paragraph 22A.” The exception provided in Paragraph 22A does not apply. The Court finds the parties have an agreement for the payment of fees.
Next, the Court must decide the scope of the agreement. Here, the attorney fee provision applies to “any action... arising out of this Agreement” and does not limit claims to those under contract alone. All of Plaintiffs claims are predicated on the sale of the home from which the purchase agreement arises. Therefore, the Court finds the fee provision of the Agreement applies to all claims in this case.
Finally, the Court must then determine who the prevailing party is. The Agreement does not define ‘prevailing party,’ therefore the prevailing party is the one with the greater accomplishment in its litigation objectives. Santisas, supra, (1998) 17 Cal.4th 599, 622. As provided in the Statement of Decision filed on March 6, 2026, “the vast majority of this case has been about the presence of bats on the Property and the extensive damage caused by their presence. A considerably smaller portion of the case involved allegations of building code or permit violations.”
Defendant met the greater litigation objective by prevailing on the claims involving the bat infestation. Santisas, supra, (1998) 17 Cal.4th 599, 622. For this reason, Defendant is the prevailing party under the Agreement and is entitled to attorney fees. Considering the Agreement, the Court need not consider Plaintiffs’ and Defendant’s remaining arguments.
Attorney’s fees. “[T]he fee setting inquiry in California ordinarily begins with the ‘lodestar,’ i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate.” PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095. “A court assessing attorney fees begins with a touchstone or lodestar figure, based on the ‘careful compilation of the time spent and reasonable hourly compensation of each attorney ... involved in the presentation of the case.’” Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131-1132.
In determining the amount of attorney's fees to which a litigant is entitled, an experienced trial judge is the best judge of the value of professional services rendered in his or her court. Granberry v. Islay Investments (1995) 9 Cal. 4th 738, 752. Civ. Code § 1717 provides for an award of reasonable attorney’s fees and costs pursuant to a contract “which are incurred to enforce the contract.” This also applies conversely to a party who successfully prevails in defending the litigation. Monster, LLC v.
Superior Court (2017) 12 Cal.App.5th 1214, 1225-1226. “The trial court has broad discretion to determine the amount of a reasonable fee, and the award of such fees is governed by equitable principles.” EnPalm, LLC v. Teitler (2008) 162 Cal.App.4th 770, 774.
Defendant requests fees and costs of $215,387.36, which consists of $209,460.00 in attorney fees and $30,101.99 in costs, less the judgment in favor of Plaintiffs of $24,174.63. Counsel billed 689.2 hours in this case and anticipates an additional 9. Defendant has not challenged the time spent and it appears reasonable. 5
Counsel maintains that he charged $200 per hour but the hourly rate used to calculate the fees was $300. In his argument to allow the rate of $300 per hour, Counsel states that he has been licensed to practice since 2017, has worked in general civil litigation since becoming licensed in this state, and has handled many real estate nondisclosure cases in the area. Counsel alleges that $300 per hour is the prevailing hourly rate for attorneys handling real estate non-disclosure cases and this is the rate he has charged for general civil litigation since 2025.
Counsel further provides that he did not increase his rate in this case because Defendant’s husband had recently died, Defendant is elderly, and this case caused her financial stress. Counsel also states he did not always bill Defendant for time spent discussing the case or communicating with opposing counsel and that this case prevented him from taking on other employment.
While $300 per hour is reasonable for this area, $200 per hour is what was “incurred” to defend the claims. Defendant and Counsel have provided no authority that would permit the Court to award an hourly rate that was not charged and no multiplier was requested. Attorney’s fees are granted in the amount of $137,840.00.
Costs. CRC 3.1700 provides that a prevailing party is required to file a memorandum of costs within 15 days of date of service of the notice of entry of judgment, or within 180 days after entry of judgment, whichever is first. The memorandum of costs must be verified. A party may contest costs by a noticed motion to strike or tax costs filed and served within 15 days after service of the memorandum of costs. However, the “...trial court has broad discretion in allowing relief from a late filing where...there is an absence of a showing of prejudice to the opposing party.” Hoover. Cmty. Hotel Dev. Corp. v. Thomson (1985) 168 Cal.App.3d 485. “In the absence of prejudice, the trial court has broad discretion in allowing relief on grounds of inadvertence from a failure to timely file a cost bill.” Pollard v. Saxe & Yolles Dev. Co. (1974) 12 Cal.3d 374.
Here, the notice of entry of judgment was filed by Plaintiffs on April 1, 2026, and served by electronic service on March 31, 2026. Defendant attempted to file a memorandum of costs, but it was rejected by the clerk’s office on April 9, 2026, on the basis that it was premature and would be determined pursuant to a post-trial motion. Likewise, Plaintiffs attempted to file a memorandum of costs on April 20, 2026, but it too was rejected by the clerk’s office for the same reasons. Plaintiffs subsequently sent a letter to the Court addressing the error in rejection and their memorandum of costs was filed on April 29, 2026. Plaintiffs filed a motion to tax costs regarding Defendant’s memorandum but because Defendant’s memorandum of costs was never filed it has not been set for hearing.
The Court continues the matter of costs to allow Defendant to file the memorandum of costs and for Plaintiff’s motion to tax costs to be re-noticed and heard before costs are determined.
Plaintiffs’ Motion for Attorney’s fees and costs is DENIED. Defendant’s Motion for Attorney fees is GRANTED, with the reduction of the hourly rate to $200, the total award to Defendant is: $137,840.00. A proposed order has been lodged and will be modified to reflect the Court’s ruling.
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