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SUPERIOR COURT OF CALIFORNIA,
COUNTY OF SACRAMENTO
CIVIL
TENTATIVE RULINGS - April 07, 2011
EVENT DATE: 04/08/2011 EVENT TIME: 09:30:00 AM DEPT.: 43
JUDICIAL OFFICER:
CASE NO.: 07AS04450
CASE TITLE: RODNEY ABBOTT, ET AL VS. RONALD PAUL BRITSCHGI, ET AL
CASE CATEGORY: Civil - Unlimited CASE TYPE: Breach of Contract/Warranty
EVENT TYPE: Motion for Attorney Fees - Post Trial Motions
CAUSAL DOCUMENT/DATE FILED:
Defendant, Richard Ruybalid's Motion for Attorney Fees, Expenses and Costs
Contractual Attorney Fees
Background and Arguments
Defendant's motion for attorney fees is granted as to its right to obtain such. Ruling on the amount of
fees to be awarded is deferred pending receipt of further supplemental briefing as to the various types of
legal services rendered and the costs or reasonable value thereof, all as more specifically provided
herein.
On February 3, 2011, the court entered judgment on the jury's verdict finding in favor of defendant on
plaintiff's cause of action for breach of contract.
Defendant seeks attorney fees pursuant to contract in the amount of $207.494.
The construction contract that was the subject of this action contains the following attorney fee provision.
"Should any litigation be commenced between the parties concerning this contract, or the right and
duties of CA Construction, Owner Builder shall be responsible for any and all costs including attorney's
fees and court costs and all arbitration or mediation costs."
In opposition, plaintiffs contend that defendant is not necessarily the prevailing party on the contract,
because they prevailed on defendant's cross-complaint for indemnity when the law and motion court
granted plaintiff's motion for judgment on the pleadings. Plaintiffs argue that the cross-complaint was an
action on the contract, in that it sought indemnity from plaintiffs under the terms of the contract. Plaintiff
urges the Court to exercise its discretion and find there is no overall prevailing party in the lawsuit.
In reply, defendant points out that the cross-complaint contained no cause of action based on contract.
The claims were for implied equitable indemnity; comparative indemnity; comparative negligence;
contribution; and declaratory relief.
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CASE TITLE: RODNEY ABBOTT, ET AL VS. CASE NUMBER: 07AS04450
RONALD PAUL BRITSCHGI, ET AL
Code of Civil Procedure section 1021 specifically authorizes agreement for fee shifting awards. It
provides: "except as attorney's fees are specifically provided for by statute, the measure and mode of
compensation of attorneys and counselors at law is left to the agreement, express or implied, of the
parties."
Analysis
Fee awards for enforcing contracts that include fee-shifting clauses are governed by Civil Code section
1717.
As pertinent here, Civil Code section 1717 provides:
"(a) 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.
"Where a contract provides for attorney's fees, as set forth above, that provision shall be construed as
applying to the entire contract, unless each party was represented by counsel in the negotiation and
execution of the contract, and the fact of that representation is specified in the contract.
"Reasonable attorney's fees shall be fixed by the court, and shall be an element of the costs of suit.
"Attorney's fees provided for by this section shall not be subject to waiver by the parties to any contract
which is entered into after the effective date of this section. Any provision in any such contract which
provides for a waiver of attorney's fees is void.
"(b) (1) 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. (Civ Code § 1717)"
Here, defendant won the case outright on plaintiffs' breach of contract and related claims. Defendant
obtained its main litigation objective. (See Hsu v. Atbara (1995) 9 cal.4th 863) It is clear that defendant
recovered greater relief in the action on the contract. Plaintiffs' success on the cross-complaint for
equitable indemnity and contributory negligence does not change that fact. Therefore, defendant is
entitled to its reasonable attorney fees.
In determining the reasonableness of a fee award, the Court is required to calculate the "lodestar"
amount. The Court must therefore determine the reasonable hourly rate and the reasonable number of
hours expended in this matter. The reasonable market value of the attorney's services is the measure of
the reasonable hourly rate. (PLCM Group Inc. v. Drexler (2000) 22 Cal.4th 1084, 1094)
Here, defendant claims $185 an hour for partners and associates and $100 for paralegals. In its
independent judgment, the Court finds that the rates are reasonable in this community for the work
performed for the defendant in this case. The question, then, is whether the number of hours was
reasonable.
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CASE TITLE: RODNEY ABBOTT, ET AL VS. CASE NUMBER: 07AS04450
RONALD PAUL BRITSCHGI, ET AL
In his declaration in support of the motion, counsel, Todd Jones outlines 278.7 hours for himself, 95.9
hours for Jasun Molinelli, 664.5 hours for Gregory Federico, 13.10 hours for Mike McGuire, 29.7 hours
for Jason Rose, 0.9 hours for Gino Cano, 3.0 hours for Lynette Hoang, 0.6 hours for Lisa Estrabrook and
4.8 hours for Wendy Smith. Defendant attaches summaries of the billing records but no detailed billing
records and no description of the work undertaken by the various attorneys.
Defendant also claims 38.5 hours for paralegal, Quinn Dube, 17.3 hours for paralegal, Marie Cantrell,
1.6 hours for paralegal, Patrician Gould and 7.1 hours for summer associate, Jonathan S. Lieberman.
Defendant claims a total of 1,144.30.
Mr. Jones states that the time was spent on numerous depositions, pre-trial pleadings and appearances,
law and motion, visual inspections, mediations/settlement conferences, a two-week jury trial and post
trial activities. He opines that the number of hours is reasonable. Mr. Jones also notes that the firm is
not seeking fees for associate Federico to attend trial.
In their opposition, plaintiffs object that defendant has not provided any basis for the amount of fees
sought, other than the declaration of Todd Jones. In particular, plaintiffs object that there is no indication
of how Gregory Federico spent 664 hours or of the hours spent by Mr. Jones outside of the trial itself.
Plaintiffs contend that the fee award should be based on detailed time records, or at least a detailed
explanation of the work performed.
The reply to the opposition is accompanied by a supplemental declaration of Todd A. Jones. Attached
to the declaration are some 112 pages billing records-all in a small font. However, counsel includes no
declaration explaining, interpreting or aggregating the contents of those records into meaningful
descriptions of discrete legal tasks. Further, Plaintiffs have had no opportunity to respond to such
records or make specific objections.
A brief review of the extensive records shows that some of the work performed was not on behalf of this
moving defendant, some of it appears to be duplicative and unnecessary, and some of was necessitated
because of the bankruptcy proceedings, which were not directed toward responding to plaintiffs' claims,
but to seeking debtor's protection against them, based on Federal Bankruptcy laws Plaintiffs here are
liable for none of such fees.
In the circumstances, the Court will defer ruling on the reasonable number of hours until May 13, 2011 at
10:00 a.m., in this department (the Court shall publish its tentative the preceding day), to permit the
parties to submit supplemental briefing. Defendant therefore shall submit evidence of the work
performed on his behalf in defense of the contract claims in this action no later than the close of
business on April 18, 2011. In so doing, Defendant shall redact all other work included in the billing
records. Defendant shall also summarize the nature of the work performed, including that of paralegals,
indicating only those hours of the latter who were actually performing quasi-legal services, as opposed
to administrative or clerical services. Plaintiff shall have an opportunity to respond no later than the
close of business April 28, 2011. Defendant may submit its reply by May 03, 2011
Costs
Defendant also seeks cost pursuant to the contract, citing Code of Civil Procedure section 998, and as
the prevailing party under Code of Civil Procedure sections 1032 and 1033.5. Most of the costs are
included in the memorandum of costs. The Court will address those costs in its ruling on plaintiffs'
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CASE TITLE: RODNEY ABBOTT, ET AL VS. CASE NUMBER: 07AS04450
RONALD PAUL BRITSCHGI, ET AL
motion to tax costs below.
Over and above costs claimed as statutorily awardable, Defendant also seeks additional costs in the
amount of $12,934.88. Plaintiffs contend those costs are not recoverable, unless they are pled and
proved at trial.
Plaintiffs are persuasive. In Ripley v. Pappadopolous (1994) 23 Cal.App.4th 1616, the Third District
Court of Appeal determined that contractual costs not specifically allowed, or specifically disallowed, by
Code of Civil section 1033.5 must be specially pleaded and proven at trial, rather than included in a
memorandum of costs. Since defendant did not specially plead and prove its right to recover these
costs, it is not entitled to them. (See Ripley v. Pappadopolous (supra) at 1627)
Plaintiffs' Motion to Tax Costs Awardable by Statute
The motion is denied.
Defendant claims its costs as the prevailing party under Code of Civil Procedure sections 1032 and
1033.5.
Relying on Wolf v. Walt Disney Pictures & Television (2008) 162 Cal.App.4th 1107, plaintiffs contend that
defendant is not necessarily the prevailing party, because they prevailed on defendant's
cross-complaint. Plaintiffs ask the Court to exercise its discretion to declare that no party prevailed.
The first prong of section 1032(a)(4) describes four categories of litigants who automatically qualify as
prevailing parties. It reads: " 'Prevailing party' includes [1] the party with a net monetary recovery, [2] a
defendant in whose favor a dismissal is entered, [3] a defendant where neither plaintiff nor defendant
obtains any relief, and [4] a defendant as against those plaintiffs who do not recover any relief against
that defendant." (§ 1032, subd. (a)(4).)
The prevailing party determination is not discretionary under the first prong. (Wakefield v. Bohlin
(2006) 145 Cal. App. 4th 963, 975-976)
The second prong of section 1032(a)(4) provides that, where any party recovers other than monetary
relief, and in situations other than as specified, the prevailing party shall be determined by the court.
Essentially, the second prong provides that, in situations other than the four specified categories, or
when a party recovers other than monetary relief, the trial court may determine the prevailing party and,
in its discretion, may choose to allow or not to allow costs. (Lincoln v. Schurgin (1995) 39 Cal. App. 4th
100, 105)
Here, defendant falls squarely into the fourth category of section 1034(a)(4) as a defendant as against
those plaintiffs who do not recover any relief against that defendant. In these circumstances the Court
has no discretion. Defendant is entitled to statutory costs under 1032(a)(4).
Moreover, even if the second prong of 1032(a)(4) applies, the result is the same. The Court's discretion
is properly exercised in finding defendant to be the prevailing party entitled to costs. This is not a mixed
result case where the parties should bear their own costs.
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CASE TITLE: RODNEY ABBOTT, ET AL VS. CASE NUMBER: 07AS04450
RONALD PAUL BRITSCHGI, ET AL
Expert Witness Fees
Defendant seeks its expert witness fees pursuant to Code of Civil Procedure section 998. Section 998
provides that, up until 10 days prior to trial, "any party may serve an offer in writing upon any other party
to the action to allow judgment to be taken or an award to be entered in accordance with the terms and
conditions stated at that time." (§ 998, subd. (b)
A plaintiff who does not accept a valid pretrial offer to compromise and who fails to obtain a more
favorable judgment or award may be required to pay defendant's expert witness costs, so long as the
section 998 offer was reasonable and made in good faith. (Nelson v. Anderson (1999) 72 Cal.App.4th
111, 134) "To be in good faith, there must be "some reasonable prospect of acceptance." (Id. at p. 698;
accord, Wear v. Calderon (1981) 121 Cal. App. 3d 818, 821.)
Whether a section 998 offer was reasonable and made in good faith is left to the sound discretion of the
trial court. (Nelson v. Anderson (supra) When a party obtains a judgment more favorable than its
pretrial offer, it is presumed to have been reasonable and the opposing party bears the burden of
showing otherwise. (See Nelson v. Anderson (supra) at 134; Thompson v. Miller (2003) 112 Cal.App.4th
327, 338-339) If the offer is in a range of reasonably possible results, and the offeree has reason to
know the offer is reasonable, then the offeree must accept the offer or be liable for costs under Code of
Civil Procedure section 998.
The Court determines the reasonableness of a section 998 offer--that is, whether it was rendered in
good faith or was an invalid token offer--as of the time the offer was made. "The reasonableness of a
section 998 offer must be made in light of the circumstances existing at the time of the offer and not by
virtue of hindsight." (Fortman v. Hemco, Inc. (1989) 211 Cal. App. 3d 241, 264)
In light of the presumption of reasonableness, plaintiffs have the burden of showing that the $25,000
offer was not reasonable at the time it was made. Plaintiffs have failed to meet that burden. Comparing
the amount of the offer ($25,000) to the overall amount of the contract work to be performed ($53,000),
and considering the defense's theory of the case that, as the owner-builder of both the cul d' sac and the
home, plaintiff Mrs. Abbott knew or should have known, of all the details about which she sued here,
which theory was apparently adopted by the jury, the Court finds that the offer was in good faith in light
of the facts known at the time by both parties. Thus, the 998 penalties were triggered.
Accordingly, Defendant has the right to request the Court to exercise its discretion to award reasonable
expert witness fees under Code of Civil Procedure section 998(c)(1).
Defendant is entitled to the reasonable costs of expert witnesses actually incurred and reasonably
necessary for trial and trial preparation.
Plaintiffs contend that the Court should reduce the amounts claimed for the experts Newlin and Heryet
because the number of hours expended on trial preparation is excessive.
In opposition, defendant has produced declarations from the experts and billing records outlining the
work performed by each of them. Both experts testified at trial and the testimony was not duplicative.
In reply, plaintiffs contend that the costs are not reasonable because Mr. Newlin spent 150.75 hours
after he should have been ready to be deposed and ready for the original 2009 trial date. Plaintiffs
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CASE TITLE: RODNEY ABBOTT, ET AL VS. CASE NUMBER: 07AS04450
RONALD PAUL BRITSCHGI, ET AL
contend that this Court should only award the 43 hours he spent in April and May, 2009 at $180 for a
total of $7,740.
Similarly, plaintiffs contend that Mr. Heryet spent 77.5 hours after May 15, 2009 and that the 59 hours he
spent before that time do not appear reasonable as the time was spent in discussions with various
individuals.
Plaintiffs request a reduction to 50 hours at $200 an hour for a total of $10,000.
Defendant has shown that the witness fees were actually incurred. The question then is whether they
were reasonably necessary for preparation for trial and for the trial itself.
In its opposition, defendant points out that plaintiffs amended their complaint three times after the
original trial date and as a result both experts were required to conduct additional inspections, evaluate
new documents, read new depositions, formulate new opinions and revise old ones and perform
additional calculations.
Based on the record and evidence presented, the Court has no reason to find that the fees incurred
were unreasonable. Expert witness fees are awarded in the requested amount of $70,380.
Plaintiffs also object to the $2400 mediation fee at item 13 of the cost bill. Defendant contends it is
entitled to the fee under Code of Civil Procedure section 998. Plaintiffs contend that the mediation fee is
not an allowable cost under section 998.
Plaintiffs are correct. However, the contractual fee provision specifically provides that plaintiffs will pay
all arbitration or mediation costs. The mediation cost is awarded pursuant to contract.
Plaintiffs do not object to items 1, 2, 4, 5, 11 or 12 of the cost bill or to the ordinary witness fees at item
8. Those costs are therefore awarded.
The above ruling constitutes the Court's tentative decision and shall be the ruling of the Court on
the Motion(s), unless, by 4:30 pm, Thursday, April 7, 2011, either party notifies Court Clerk Mr.
Anthony Brown, at 874-7561, to request oral argument. Such request must include a reference to that
portion of the tentative ruling on which the party wishes to be heard and a representation that the
requesting party has notified opposing counsel. If the request and affirmative representations have been
made timely, the Court will entertain oral argument on the date and time specified.
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