Red Hill Village v. Shere

113 Yu v. Universal Waste Motion for Leave to Amend – MOOT Systems, 2026- 01548728

114 Red Hill Village v. Motion for Attorney Fees – GRANTED Shere, 2024-01424721 After this Court granted Plaintiff Red Hill Village, LLC’s motion for summary judgment, judgment was entered in favor of Plaintiff and against Defendant Kaiser Shere. Based on the parties’ contract, Plaintiff now moves for an order granting attorney fees in the amount of $35,349.50.

The Court OVERRULES Defendant’s Evidentiary Objections Nos. 1, 2, 4-9, 11, 12. The Court SUSTAINS Objection Nos. 3 and 10 on the ground the “transaction listing report” attached as Exhibit 1 is hearsay.

Attorney Fees Provision Plaintiff brings the instant motion for attorney fees under Civil Code section 1717, pursuant to an agreement by the parties.

“ ‘Before section 1717 comes into play, it is necessary to determine whether the parties entered into an agreement for the payment of attorney fees, and if so, the scope of the attorney fee agreement.’ [Citation.]” (Mountain Air Enterprises, LLC v. Sundowner Tower, LLC (2017) 3 Cal.5th 744, 752.)

Defendant argues that Plaintiff did not attach or authenticate the Lease or Guaranty containing the fee clause. However, the reply argues that the operative Lease and Guaranty were submitted previously and attached to the Declaration of Bonaparte Lui in conjunction with Plaintiff’s Motion for Summary Judgment, and requests that the Court take judicial notice of the documents filed on June 12, 2025.

The Court takes judicial notice of the Declaration of Bonaparte Lui in conjunction with Plaintiff’s Motion for Summary Judgment, pursuant to Evidence Code section 452(d). (ROA 55.)

Paragraph 31 of the Lease provides for attorney fees and states, in part: “If any Party or Broker brings an action or proceeding involving the Premises whether founded in tort, contract or equity, or to declare rights hereunder, the Prevailing Party (as hereafter defined) in any such proceeding, action, or appeal thereon, shall be entitled to reasonable attorneys' fees. Such fees may be awarded in the same suit or recovered in a separate suit, whether or not such action or proceeding is pursued to decision or judgment. The term, ‘Prevailing Party’ shall include, without limitation, a Party or Broker who substantially obtains or defeats the relief sought, as the case may be, whether by compromise, settlement, judgment, or abandonment by the other Party or Broker of its claim or defense.” (ROA 55, Ex. 1 to Declaration of Bonaparte Lui, Lease at p. 14, ¶ 31.)

The Guaranty signed by Defendant states: “In the event any action be brought by said Lessor [KSN Investments, Inc.] against Guarantors [Kaiser Shere] hereunder to enforce the obligation of Guarantors hereunder, the unsuccessful party in such action shall pay to the prevailing party therein a reasonable attorney's fee. The attorney's fee award shall not be computed in accordance with any court fee schedule, but shall be such as to full reimburse all attorney's fees reasonably incurred.” (ROA 55, Ex. 1 to Declaration of Bonaparte Lui, Guaranty.)

Plaintiff acquired the property located at 14601 Red Hill Avenue, Tustin California 92780 (the “Premises”), which is at the center of this dispute, and as part of the acquisition, assumed the written Lease executed on or about January 16, 2025 between KSN Investments, Inc. and Defendant. (ROA 55, Declaration of Bonaparte Lui, ¶¶ 3-4.)

A valid, written agreement existed between the parties for an award of attorney fees to the prevailing party for an action involving the Premises and to enforce the obligation of a Guarantor.

Entitlement to Attorney Fees

“[E]ach party to a lawsuit is responsible for his or her own attorney’s fees in the absence of an agreement between the parties for fees or a statute specifically authorizing fees. [Citations.]” (Pederson v. Kennedy (1982) 128 Cal.App.3d 976, 979.)

Civil Code section 1717, subdivision (a) provides, “In 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.” (Civil Code § 1717(a).)

Civil Code section 1717(b)(1) states: “The court, upon notice and motion by a party, shall determine who is the party prevailing on the contract for purposes of this section, whether or not the suit proceeds to final judgment. Except as provided in paragraph (2), the party prevailing on the contract shall be the party who recovered a greater relief in the action on the contract. The court may also determine that there is no party prevailing on the contract for purposes of this section.” (Civil Code § 1717(b)(1).) Civil Code section 1717(b)(2) provides, “Where an action has been voluntarily dismissed or dismissed pursuant to a settlement of the case, there shall be no prevailing party for the purposes of this section.”

“When a party obtains a simple, unqualified victory by completely prevailing on or defeating all contract claims in the action and the contract contains a provision for attorney fees, section 1717 entitles the successful party to recover reasonable attorney fees incurred in prosecution or defense of those claims. [Citation.]” (Scott Co. of California v. Blount, Inc. (1999) 20 Cal.4th 1103, 1109.)

Here, there is no dispute that Plaintiff is the prevailing party as summary judgment was entered in its favor, with Defendant taking nothing. (Decl. of Stelzer, ¶¶ 7-8.)

Lodestar The determination of the appropriate award of attorney fees ordinarily begins with ascertainment of the “lodestar,” i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate. (EnPalm, LLC v. Teitler Family Trust (2008) 162 Cal.App.4th 770, 774; see Mountjoy v. Bank of America, N.A. (2016) 245 Cal.App.4th 266, 271-282 [discussing general principles governing attorney fee awards].) The reasonable hourly rate is that prevailing in the community for similar work; but the court may use outof-area rates when the prevailing party shows it was impracticable to use local counsel. (In re Tobacco Cases I (2013) 216 Cal.App.4th 570, 582.)

The lodestar figure may then be adjusted, based on consideration of factors specific to the case, to fix the fee at the fair market value for the legal services provided. (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095.) The Court has discretion to reduce the fee award where fees were not reasonably incurred. (See Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132 [‘[P]adding’ in the form of inefficient or duplicative efforts is not subject to compensation.”]; Gorman v. Tassajara Dev. Corp. (2009) 178 Cal.App.4th 44, 101 [“A reduced award might be fully justified by a general observation that an attorney overlitigated a case or submitted a padded bill or that the opposing party has stated valid objections.”].)

A court has wide discretion in determining what constitutes reasonable attorney fees. The court typically makes this determination based upon declarations without live testimony. The value of legal services performed in a case is a matter in which the court has its own expertise, and thus may make its own determination of the value of the services contrary to, or without the necessity for, expert testimony. (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1096; Padilla v. McClellan (2001) 93 Cal.App.4th 1100, 1107; Syers Properties III, Inc. v.

Rankin (2014) 226 Cal.App.4th 691, 698 [“experienced trial judge is the best judge of the value of professional services rendered in his court”].) “ ‘[T]he [party] . . . seeking fees and costs “ ‘bear[s] the burden of establishing entitlement to an award and documenting the appropriate hours expended and hourly

rates.’ [Citation.]” ’ (Christian Research Institute v. Alnor (2008) 165 Cal.App.4th 1315, 1320.) ‘ “To that end, the court may require [a] defendant[] to produce records sufficient to provide ‘ “a proper basis for determining how much time was spent on particular claims.” ’ [Citation.]” ‘ (Ibid.) ‘The evidence should allow the court to consider whether the case was overstaffed, how much time the attorneys spent on particular claims, and whether the hours were reasonably expended. [Citation.]’ (Ibid.) ‘ “The court . . . may properly reduce compensation on account of any failure to maintain appropriate time records. [Citation.]” ’ (Ibid.)”

Reasonableness of Hours Incurred Defendant contends that Plaintiff did not provide admissible evidence supporting the claimed hours and rates, and did not lay the required business-records foundation for any billing entries.

Although the objection to the “transaction listing report” is sustained, billing records are not required, and Plaintiff’s counsel’s declaration provides personal knowledge of the hourly rates and hours billed by all attorneys and paralegals. (Decl. of Stelzer, ¶ 2 [“I completed a thorough review of all time entries billed to our client as well as all work-product and correspondence completed by my office”], ¶ 10 [“In preparing this Declaration, I reviewed all transactions”], ¶¶ 11-13, 16-18.) Attorney Stelzer sets forth the hours billed by each timekeeper, for which Attorney Stelzer establishes personal knowledge and foundation. “The law is clear, however, that an award of attorney fees may be based on counsel's declarations, without production of detailed time records.” (Raining Data Corp. v.

Barrenechea (2009) 175 Cal.App.4th 1363, 1375.) “...the verified time statements of the attorneys, as officers of the court, are entitled to credence in the absence of a clear indication the records are erroneous.” (Horsford v. Bd. Of Trustees Of California State Univ. (2005) 132 Cal. App. 4th 359, 396.) “California law does not require detailed billing records to support a fee award; ‘[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.’ [Citation.]” (Rancho Mirage Country Club Homeowners Assn. v. Hazelbaker (2016) 2 Cal.App.5th 252, 263-264.) “Furthermore, ‘[a]n award for attorney fees may be made in some instances solely on the basis of the experience and knowledge of the trial judge without the need to consider any evidence.’ [Citation.]” (Id. at p. 264.) A trial court is not required to issue any explanation of its decision with regard to a fee award. (Ibid.) Plaintiff’s counsel provides that Managing Partner of the Business Real Estate Group, Cynthia D.

Stelzer expended 9.40 hours; that associate attorney Taylor McElroy expended 30.80 hours; that former associate attorney Cameron Neubauer expended 34.90 hours; and that paralegal Michelle Desilets expended 20 hours. (Decl. of Stelzer, ¶ 18.) It is anticipated that McElroy will expend an additional 2.0 hours. (Decl. of Stelzer, ¶ 18.) In total, Plaintiff provides that a total of 94.1 hours has been reasonably incurred by Plaintiff. Plaintiff’s counsel also provides that appropriate redactions to the hours expended were made to exclude time and costs not appropriately recoverable. (Decl. of Stelzer, ¶ 10.)

These hours appear reasonable for the prosecution of a case through initial filing, discovery and summary judgment.

“The party opposing the fee award can be expected to identify the particular charges it considers objectionable.” (Gorman v. Tassajara Development Corp. (2009) 178 Cal.App.4th 44, 101.) To oppose a showing of a fee request supported by declarations describing the efforts taken with billing records to establish the hours of work, a party may “attack the itemized billings with evidence that the fees claimed were not appropriate, or obtain the declaration of an attorney with expertise in the procedural and substantive law to demonstrate that the fees claimed were unreasonable.” (Premier Med.

Mgmt. Sys. v. Cal. Ins. Guarantee Assoc. (2008) 163 Cal.App.4th 550, 563-564.) “In challenging attorney fees as excessive because too many hours of work are claimed, it is the burden of the challenging party to point to the specific items challenged, with a sufficient argument and citations to the evidence. General arguments that fees claimed are excessive, duplicative, or unrelated do not suffice.” (Id. at p. 564.)

Defendant asserts that Plaintiff improperly seeks fees for unrelated work, including the unlawful detainer case, the writ of attachment, settlement with KSN, discovery unrelated to the motion for summary judgment, work not used in the motion for summary judgment, and work on matters outside this case. Defendant also argues that Plaintiff improperly seeks fees for duplicative work, excessive hours, and tasks not reasonably necessary to this litigation including 30.8 hours drafting the motion for summary judgment by McElroy, 34.9 hours drafting the motion for summary judgment by Neubauer, and 14.8 hours drafting discovery responses, in addition to multiple “review case file” entries, multiple “NO CHARGE” entries (showing padding), paralegal performing attorney work, and attorneys performing clerical work.

Initially, Defendant’s objections cannot be understood without reference to the “transaction listing report,” but since it is not considered, the opposition to certain work cannot be properly evaluated.

Even if the Court considers Defendant’s arguments with reference to the “transaction listing report,” Defendant fails to identify the specific entries to which Defendant objects, Defendant fails to explain how or why certain work is “unrelated work” that should not be compensated, and other than the total hours for drafting the motion for summary judgment and drafting discovery responses, Defendant fails to identify any entry where a paralegal is performing attorney work and attorneys are performing clerical work. Additionally, paralegal work is compensable. Necessary support services for attorneys, including secretarial and paralegal services, are includable within an attorney fee award where those services are necessary and reasonable. (Salton Bay Marina, Inc. v. Imperial Irrigation District (1985) 172 Cal.App.3d 914, 951.)

Lastly, five (5) “NO CHARGE” entries do not reflect padding, and there is no entry for “review case file.” Further, the 30.8 hours and 34.9 hours are the total hours billed by attorneys McElroy and Neubauer,

respectively. Defendant does not establish that these were hours solely for the motion for summary judgment. Similarly, 14.8 hours is the total number of hours billed by paralegal Desilets at the $175 per hour rate. Defendant does not establish that these hours were solely to draft discovery responses. Thus, Defendant fails to show that the hours claimed for work on the motion for summary judgment or to draft discovery responses was excessive. Ultimately, Defendant’s opposition to fees consists of general arguments that the fees are excessive, duplicative, and/or unrelated, which is insufficient.

Reasonableness of Rates In determining a reasonable rate for the attorney's services, courts usually consider: (1) the prevailing rate charged by attorneys of similar skill and experience for comparable legal services in the community; (2) the nature of the work performed; and (3) the attorney's customary billing rates. (See Serrano v. Unruh (1982) 32 Cal.3d 621, 643.) The reasonable hourly rate is that prevailing in the community for similar work. (In re Tobacco Cases I (2013) 216 Cal.App.4th 570, 582.)

Plaintiff’s contends that the following rates are reasonable: $525 per hour for Stelzer, who has practiced in San Diego County continuously for approximately 23 years; $375 per hour for McElroy who has practiced in San Diego County continuously for over five (5) years, and Neubauer who was admitted to the California Bar in November 2022; and $175-$185 for paralegal Michelle Desilets who has worked as a legal secretary for over 20 years and obtained her paralegal certificate in 2020. (Decl. of Stelzer, ¶¶ 11-14.) Although the requested hourly rates are for attorneys based in San Diego County, the rates appear reasonable and commensurate with attorneys of similar experience practicing in business and real estate litigation in Orange County.

Defendant contends that the paralegal rate of $175-$185 is unsupported and excessive, but provides no evidence supporting this assertion.

The paralegal rate of $175-$185 is reasonable and commensurate of paralegals of similar background and experience in Orange County.

Based on the foregoing, the Court GRANTS the motion for attorney fees in the amount of $35,349.50.

Plaintiff to give notice.