Preview
So 0 em IN DH BF WN =
Michael G. Ackerman, Esq. (SBN 64997)
LAW OFFICES OF MICHAEL G. ACKERMAN
2391 The Alameda, Suite 100
Santa Clara, CA 95050
Telephone: (408) 261-5800
Facsimile: (408) 261-5900
Email: mga@mgackermanlaw.com
Attorneys for Plaintiff,
PHILIP RESTIVO
SUPERIOR COURT FOR THE STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
PHILIP RESTIVO, Case No.: 17CV308469
Plaintiff,
MEMORANDUM OF POINTS AND
vs. AUTHORITIES IN SUPPORT OF
MOTION FOR ATTORNEY’S FEES
WORLDWIDE GROUND
TRANSPORTATION SOLUTIONS, INC.;
JAMES BROWN, an individual; and DOES
1 through 5, inclusive.
Date: May 10, 2019
Time: 9:00a.m.
Dept: 7
Judge: Hon. Christopher G. Rudy
Defendants.
SES
INTRODUCTION:
This motion follows a jury trial on a claim for breach of contract brought by the Plaintiff, Phil
Restivo. Phil Restivo prevailed on the claim for breach of contract having received an award of
$60,000.00. This motion is brought for an award of attorneys' fees based upon Phil Restivo being the
"prevailing party" pursuant to a contractual provision in the “Offer and Agreement To Buy”. The
agreement specifically provides for an award of attorneys' fees to the prevailing party in an arbitration
of a dispute “arising out of this Agreement.” (Paragraph 16) Similar language has been held by
California Appellate Courts to encompass not only an arbitration but also a judicial proceeding
brought to enforce the terms of the contract. The claim for breach of contract brought by Plaintiff
arises directly out of the Addendum to Offer & Agreement to Buy, executed contemporaneously with
~1-
MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT OF MOTION FOR ATTORNEY’S FEES Case No.: 17CV308469NORCO ON
NON ND ee a is
BNRRBRREKRESEe WIR AEBHKRAS
the Offer and Agreement to Buy. Plaintiff alleged that Defendant Worldwide Ground Transportation
Solutions, Inc. breached the Addendum to Offer and Agreement to Buy as well as the Mediated
Settlement Agreement by failing to provide discount limousine services as promised.
Plaintiff is entitled to recover all of his attorney’s fees from the inception of the dispute, as
well as the fees incurred in bringing this motion. Plaintiff's fee claim is determined based upon a
lodestar analysis which is a determination of the reasonable number of hours spent in the matter
multiplied by a reasonable hourly rate. Plaintiff requests that this court award a total of $64,125.00 as
and for reasonable attorney’s fees incurred to date plus any additional fees incurred in preparing a
reply brief and appearing at the motion.
II. ARGUMENT:
A. Plaintiff Is The Prevailing Party In This Matter
And Is Entitled To Attorney’s Fees As A Cost Under C.C.P. Section 1033.5.
Recovery of litigation costs is governed by Code of Civil Procedure Section 1032. Subdivision
(a)(4) defines the "prevailing party" as the party with a net monetary recovery and/or a defendant against
whom the plaintiffs do not recover any relief. Phil Restivo is the prevailing party with respect to the
complaint since he received a verdict in his favor and won a judgment for $60,000.00. Subdivision (b)
provides that a prevailing party is entitled to recover costs as a matter of right.
Code of Civil Procedure Section 1033.5 defines allowable costs to include attorneys' fees when
authorized by contract. (Subdivision (a)(10)) The Offer and Agreement to Buy, the Addendum to the
Offer and Agreement to Buy and the Mediated Settlement Agreement were marked and admitted in
Evidence as Exhibits 1, 2, and 8. The testimony was undisputed that both Plaintiff and James Brown
signed each of these agreements.
Paragraph 16 of the Offer and Agreement to Buy provides as follows:
“Complete Agreement, Mediation, Arbitration, Attorney’s Fees: This is the entire
Agreement of the parties and there are no oral agreements, understandings or
representations relied upon by the parties. Any modifications must be in writing and
signed by all parties. Any party that fails to participate in the mediation of a dispute(s)
arising out of this Agreement prior to initiating any court action or arbitration shall waive
their right to attorney’s fees and costs. In the event that mediation fails to resolve a
dispute(s), the parties will arbitrate in accordance with the rules of the American
Arbitration Association. The prevailing party in such arbitration shall be entitled to
recover all costs, including reasonable attorney’s fees. The venue shall be Santa Clara
County, California.”
ae
MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT OF MOTION FOR ATTORNEY’S FEES Case No.: 17CV308469NOE Cn
NN NY NY NY NY NN NY Be Be we Be we ewe ewe Be eB
CO Se SO NS
The party initiating the lawsuit (i.e. the Plaintiff in this action) proved that he proceeded to
mediation before filing suit (Exhibit 8), and in fact sued on the agreement made at the mediation.
Following entry of judgment, a party is required to bring a motion for attorney fees within the time
limits for filing an appeal, absent a stipulation extending the time. (Ca. Rules of Court, Rules 8.104 and
3.1702(a)) The time for serving a notice of appeal is sixty (60) days. The notice of entry of judgment
was served on April 9, 2019, so Plaintiff and has until June 10, 2019, within which to file this motion.
B. Reasonable Attorney Fees In Actions Based Upon A Contract Are Governed
By The Touchstone Or Lodestar Analysis
California courts determine attorney fee awards based upon the touchstone or lodestar analysis
or method. (Serrano v Priest (Serrano III) (1977) 20 Cal. 3d 25, 48, footnote 3; PLCM Group, Inc. v
Drexler (2000) 22 Cal.4th 1084, 1095)
The California Supreme Court, in the case PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 95
Cal.Rptr.2d 198; 997 P.2d 511, granted review to address the question of whether an entity represented
by in-house counsel may recover attorneys’ fees under Civil Code section 1717. The court answered the
question in the affirmative. In doing so, the court also addressed the factors affecting an award of
attorneys’ fees under Civil Code section 1717. The court stated as follows:
Civil Code section 1717 provides that A [rJeasonable attorney’s fees shall be fixed by
the court. As discussed, this requirement reflects the legislative purpose to establish
uniform treatment of fee recoveries in actions on contracts containing attorney’s fees
provisions. (Santisas v. Goodin, supra, 17 Cal.4th at p. 616, 71 Cal.Rptr.2d 830, 951P.2d
399). Consistent with that purpose, the trial court has broad authority to determine the
amount of a reasonable fee. (/nternational Industries, Inc. v. Olen, supra, 21 Cal.3d at
p. 224, 145 Cal.Rptr. 691, 577 P.2d 1031). [E]quitable considerations [under Civil Code
section 1717] must prevail over . . . the technical rules of contractual construction.
Beverly Hills Properties v. Marcolino (1990) 270 Cal. Rtpr. 605, 221 Cal.App.3d Supp.
7, 12 [T)he award of attorney’s fees under section 1717, as its purposes indicate, is
governed by equitable principles]; Montgomery v. Bio-Med Specialties, Inc. (1986) 183
Cal.App.3d 1292, 1297, 228 Cal. Rptr. 709 [trial court has wide latitude in determining
the amount of award of attorney’s fees under Civil Code section 1717]; Vella v. Hudgins
(1984) 151 Cal.App.3d 515, 522, 198 Cal. Rptr. 725. [The amount to awarded in
attorney’s fees is left to the sound discretion of the trial court.]). As we have explained:
The experienced trial judge is the best judge of the value of professional services rendered
in his court, and while his judgment is of course subject to review, it will not be disturbed
unless the appellate court is convinced that it is clearly wrong, meaning that it abused its
discretion. (Serrano v. Priest (1977) 20 Cal.3d25, 49, 141 Cal. Rptr. 315, 569 P.2d 1303;
Fed-Mart Corp. v. Pell Enterprises, Inc. (1980) 111 Cal.App.3d 215, 228, 168 Cal. Rptr.
525 [an appellate court will interfere with a determination of reasonable attorney’s fees
only where there has been a manifest abuse of discretion].)
As the Court of Appeal herein observed, the fee setting inquiry in California ordinarily
~3-
MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT OF MOTION FOR ATTORNEY’S FEES Case No.: 17CV308469begins with the lodestar, i.e., the number of hours reasonably expended multiplied by the
reasonable hourly rate. California courts have consistently held that a computation of
time spent on a case and the reasonable value of that time is fundamental to a
determination of an appropriate attorneys’ fee award. (Margolin v, Regional Planning
Com. (1982) 134 Cal.App.3d 999, 1004-1005, 185 Cal. Rptr. 145.) The reasonable hourly
rate is that prevailing in the community for similar work. (Jd. at p. 1004, 185 Cal. Rptr.
145; Shaffer v. Superior Court (1995) 33 Cal.App.4th 993, 1002, 39 Cal. Rptr.2d 506.)
The lodestar figure may then be adjusted, based on consideration of factors specific to the
case, in order to fix the fee at the fair market value for the legal services provided.
(Serrano v. Priest, supra, 20 Cal.3d at p. 49, 141 Cal. Rptr. 315, 569 P.2d 1303.) Such
an approach anchors the trial court’s analysis to an objective determination of the value
of attorney’s services, ensuring that the amount awarded is not arbitrary. (/d. at p. 48, fn.
23, 141 Cal. Rptr. 315, 569 P.2d 1303.)
Thus, applying the lodestar approach to the determination of an award under Civil Code
section 1717, the Court of Appeal in Sternwest Corp. v. Ash (1986) 183 Cal.App.3d 74,
77, 227 Cal. Rptr. 804 explained: Section 1717 provides for the payment of a reasonable
fee. After the trial court has performed the calculations [of the lodestar], it shall consider
whether the total award so calculated under all of the circumstances of the case is more
than a reasonable amount and, if so, shall reduce the section 1717 awards so that it is a
reasonable figure.
It is well established that the determination of what constitutes reasonable attorney’s
fees is committed to the discretion of the trial court. . . [Citations.] The value of legal
services performed in a case is a matter in which the trial court has its own expertise.
[Citation.] The trial court may make its own determination of the value of the services
contrary to, or without the necessity for expert testimony. [Citations.] The trial court
makes it determination after consideration of a number of factors, including the nature of
the litigation, its difficulty, the amount involved, the skill required in its handling, the skill
employed, the attention given, the success or failure, and other circumstances in the case.
(Melnyk v. Robledo (1976) 64 Cal.App.3d 618, 623-624, 134 Cal. Rptr. 603.) Although
the terms of the contract may be considered, they do not compel any particular award.
(Vella v. Hudgins, supra, 151 Cal.App.3d p. 520, 198 Cal. Rptr. 725; All-West Design,
Inc. v Boozer (1986) 183 Cal.App.3d 1212, 1227, 228 Cal. Rptr. 736 [trial court was not
bound by contingency agreement in awarding fees under Civil Code section 1717];
Beverly Hills Properties v. Marcolino, supra, 270 Cal. Rtpr. 605, 221 Cal.App.3d at p.
Supp. 12 [affirming an award of reasonable attorney’s fees for pro bono legal services].)
(PLCM Group, supra, at pages 1094-1096).
The determination of a reasonable fee is not based upon what was actually billed or paid but is
based upon market rate. (Margolin v. Regional Planning Com., supra, at page 1004).
This Court’s first task is to determine the reasonable number of hours expended upon relevant
issues, including the time spend in applying for and obtaining the fee. (Ketchum v. Moses, supra, 24
Cal.4th at 1131-1132, 1133) By and large, the court should defer to the winning lawyer’s professional
judgment as to how much time he was required to spend on the case; after all, he won, and might not
have, had he been more of a slacker. (Moreno v. City of Sacramento (9" Cir. 2008) 534 F.3d 1106, 1112
[private attorney general case]).
-4-
MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT OF MOTION FOR ATTORNEY’S FEES Case No.: 17CV308469wn
In this case, counsel for Plaintiff, Michael G. Ackerman, has filed a declaration attaching all of
his itemized bills showing the number of hours spent and the specific tasks performed. Given the amount
at stake (over $200,000 claimed on the complaint), and Defendant’s contention that Plaintiff suffered
little or no damages, the amount of time spent was extremely conservative.
The first bill was for the month of March of 2017. This was immediately prior to the complaint
being filed. Thus, these services which were performed pre-litigation included an interview of the client,
investigation of the facts and drafting of the complaint. Pre-litigation attorney fees are compensable
when the services contribute to the ultimate success of the litigation. (Hogar v. Community Development
Commission of the City of Escondido (2007) 157 Cal.App.4th 1358, 1370-1371)
Based upon the above-cited cases and authorities, Plaintiff should be awarded $ 64,125.00 as
reasonable attorneys fees and all further fees incurred on this motion.
DATED: April /2_, 2019 LAW OFFICES OF
MICHAEL-G; ACKERMAN
ICHAEL G, ACKERMAN, ESQ.
Attorneys for Plaintiff, PHILIP RESTIVO
ae
MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT OF MOTION FOR ATTORNEY’S FEES Case No.: 17CV3084690 Oo YN DH BF YW NY
BXRRRRBRRESSCRWVIABDRESEREAS
PROOF OF SERVICE
The undersigned declares:
I am a citizen of the United States and a resident of Santa Clara County, State of California. I
am over the age of eighteen (18) years and not a party to the within above-entitled action. My
business address is 2391 The Alameda, Suite 100, Santa Clara, CA 95050.
On April 19, 2019, I served a copy of the following document(s) described as:
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION
FOR ATTORNEY’S FEES
on the interested parties in this action by placing true copies thereof in a sealed envelope addressed
to the person(s) listed below:
William R. Cumming, Esq Nancy M. Battel, Esq.
Cumming & Associates, APLC Law Offices of Nancy Battel
3080 Bristol Street, Suite 630 1101 Westwood Drive, Suite B
Costa Mesa, CA 92626 San Jose, CA 95125
Facsimile: (714) 202-3162 Telephone (408) 723-2946
Facsimile (408) 266-7238
(Attorneys for Defendants, James Brown, Worldwide
Ground Transportation Solutions, Inc.) (Attorney for Worldwide Ground
Transportation Solutions, Inc., and James
Brown)
( ) (By U.S. Mail) I am readily familiar with my employer’s business practice for collection and
processing of correspondence for mailing with the United States Postal Service. I am aware that on
motion of the party served, service is presumed invalid if postal cancellation date or postage meter is
more than one day after dated of deposit for mailing in affidavit. I caused to be deposited such
envelope(s) with postage thereon fully paid to be placed in the United States Mail at Santa Clara,
California.
( ) @y Personal Service) | caused to be delivered by hand on the interested parties in this action
by having true and correct copies placed thereof in an envelope addressed to the office of the
addressee(s) as above indicated.
( ) (@y Facsimile) I caused to be served by facsimile a true and correct copy pursuant to C.C.P.
§1013(), calling for agreement and written confirmation of that agreement on court
-6-
MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT OF MOTION FOR ATTORNEY’S FEES Case No.: 17CV308469eo
Nu nA uw
order, to the number(s) listed above or on an attached sheet. Said transmission was reported
complete and without error.
(By E-Mail) I caused a true copy of the foregoing document to be served on William R.
Cumming, Esq., with Cumming & Associates, APLC via email at
cumming@cummingandassociateslaw.com, and Nancy M. Battel at nancy@battelaw.com. This e-
mails were complete and no reports of error were received on April 19, 2019.
( ) (By Federal Express Overnight Mail) | caused to be served a true and correct copy enclosed
in a sealed package, for Federal Express Overnight collection and for overnight delivery. I had said
envelope marked for collection and overnight delivery to the addressed and to the office of the
addressee(s) as above indicated. In the ordinary course of business and including said overnight
envelopes, will be deposited with Federal Express at Santa Clara, California.
I declare under penalty of perjury under the laws of the State of California that the foregoing is
true and correct and that this declaration was executed in the City of Santa Clara, State of California,
on April 19, 2019.
STEPHANIE S. HSU
-7-
MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT OF MOTION FOR ATTORNEY’S FEES Case No.: 17CV308469
Preview
So 0 em IN DH BF WN = Michael G. Ackerman, Esq. (SBN 64997) LAW OFFICES OF MICHAEL G. ACKERMAN 2391 The Alameda, Suite 100 Santa Clara, CA 95050 Telephone: (408) 261-5800 Facsimile: (408) 261-5900 Email: mga@mgackermanlaw.com Attorneys for Plaintiff, PHILIP RESTIVO SUPERIOR COURT FOR THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA PHILIP RESTIVO, Case No.: 17CV308469 Plaintiff, MEMORANDUM OF POINTS AND vs. AUTHORITIES IN SUPPORT OF MOTION FOR ATTORNEY’S FEES WORLDWIDE GROUND TRANSPORTATION SOLUTIONS, INC.; JAMES BROWN, an individual; and DOES 1 through 5, inclusive. Date: May 10, 2019 Time: 9:00a.m. Dept: 7 Judge: Hon. Christopher G. Rudy Defendants. SES INTRODUCTION: This motion follows a jury trial on a claim for breach of contract brought by the Plaintiff, Phil Restivo. Phil Restivo prevailed on the claim for breach of contract having received an award of $60,000.00. This motion is brought for an award of attorneys' fees based upon Phil Restivo being the "prevailing party" pursuant to a contractual provision in the “Offer and Agreement To Buy”. The agreement specifically provides for an award of attorneys' fees to the prevailing party in an arbitration of a dispute “arising out of this Agreement.” (Paragraph 16) Similar language has been held by California Appellate Courts to encompass not only an arbitration but also a judicial proceeding brought to enforce the terms of the contract. The claim for breach of contract brought by Plaintiff arises directly out of the Addendum to Offer & Agreement to Buy, executed contemporaneously with ~1- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ATTORNEY’S FEES Case No.: 17CV308469NORCO ON NON ND ee a is BNRRBRREKRESEe WIR AEBHKRAS the Offer and Agreement to Buy. Plaintiff alleged that Defendant Worldwide Ground Transportation Solutions, Inc. breached the Addendum to Offer and Agreement to Buy as well as the Mediated Settlement Agreement by failing to provide discount limousine services as promised. Plaintiff is entitled to recover all of his attorney’s fees from the inception of the dispute, as well as the fees incurred in bringing this motion. Plaintiff's fee claim is determined based upon a lodestar analysis which is a determination of the reasonable number of hours spent in the matter multiplied by a reasonable hourly rate. Plaintiff requests that this court award a total of $64,125.00 as and for reasonable attorney’s fees incurred to date plus any additional fees incurred in preparing a reply brief and appearing at the motion. II. ARGUMENT: A. Plaintiff Is The Prevailing Party In This Matter And Is Entitled To Attorney’s Fees As A Cost Under C.C.P. Section 1033.5. Recovery of litigation costs is governed by Code of Civil Procedure Section 1032. Subdivision (a)(4) defines the "prevailing party" as the party with a net monetary recovery and/or a defendant against whom the plaintiffs do not recover any relief. Phil Restivo is the prevailing party with respect to the complaint since he received a verdict in his favor and won a judgment for $60,000.00. Subdivision (b) provides that a prevailing party is entitled to recover costs as a matter of right. Code of Civil Procedure Section 1033.5 defines allowable costs to include attorneys' fees when authorized by contract. (Subdivision (a)(10)) The Offer and Agreement to Buy, the Addendum to the Offer and Agreement to Buy and the Mediated Settlement Agreement were marked and admitted in Evidence as Exhibits 1, 2, and 8. The testimony was undisputed that both Plaintiff and James Brown signed each of these agreements. Paragraph 16 of the Offer and Agreement to Buy provides as follows: “Complete Agreement, Mediation, Arbitration, Attorney’s Fees: This is the entire Agreement of the parties and there are no oral agreements, understandings or representations relied upon by the parties. Any modifications must be in writing and signed by all parties. Any party that fails to participate in the mediation of a dispute(s) arising out of this Agreement prior to initiating any court action or arbitration shall waive their right to attorney’s fees and costs. In the event that mediation fails to resolve a dispute(s), the parties will arbitrate in accordance with the rules of the American Arbitration Association. The prevailing party in such arbitration shall be entitled to recover all costs, including reasonable attorney’s fees. The venue shall be Santa Clara County, California.” ae MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ATTORNEY’S FEES Case No.: 17CV308469NOE Cn NN NY NY NY NY NN NY Be Be we Be we ewe ewe Be eB CO Se SO NS The party initiating the lawsuit (i.e. the Plaintiff in this action) proved that he proceeded to mediation before filing suit (Exhibit 8), and in fact sued on the agreement made at the mediation. Following entry of judgment, a party is required to bring a motion for attorney fees within the time limits for filing an appeal, absent a stipulation extending the time. (Ca. Rules of Court, Rules 8.104 and 3.1702(a)) The time for serving a notice of appeal is sixty (60) days. The notice of entry of judgment was served on April 9, 2019, so Plaintiff and has until June 10, 2019, within which to file this motion. B. Reasonable Attorney Fees In Actions Based Upon A Contract Are Governed By The Touchstone Or Lodestar Analysis California courts determine attorney fee awards based upon the touchstone or lodestar analysis or method. (Serrano v Priest (Serrano III) (1977) 20 Cal. 3d 25, 48, footnote 3; PLCM Group, Inc. v Drexler (2000) 22 Cal.4th 1084, 1095) The California Supreme Court, in the case PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 95 Cal.Rptr.2d 198; 997 P.2d 511, granted review to address the question of whether an entity represented by in-house counsel may recover attorneys’ fees under Civil Code section 1717. The court answered the question in the affirmative. In doing so, the court also addressed the factors affecting an award of attorneys’ fees under Civil Code section 1717. The court stated as follows: Civil Code section 1717 provides that A [rJeasonable attorney’s fees shall be fixed by the court. As discussed, this requirement reflects the legislative purpose to establish uniform treatment of fee recoveries in actions on contracts containing attorney’s fees provisions. (Santisas v. Goodin, supra, 17 Cal.4th at p. 616, 71 Cal.Rptr.2d 830, 951P.2d 399). Consistent with that purpose, the trial court has broad authority to determine the amount of a reasonable fee. (/nternational Industries, Inc. v. Olen, supra, 21 Cal.3d at p. 224, 145 Cal.Rptr. 691, 577 P.2d 1031). [E]quitable considerations [under Civil Code section 1717] must prevail over . . . the technical rules of contractual construction. Beverly Hills Properties v. Marcolino (1990) 270 Cal. Rtpr. 605, 221 Cal.App.3d Supp. 7, 12 [T)he award of attorney’s fees under section 1717, as its purposes indicate, is governed by equitable principles]; Montgomery v. Bio-Med Specialties, Inc. (1986) 183 Cal.App.3d 1292, 1297, 228 Cal. Rptr. 709 [trial court has wide latitude in determining the amount of award of attorney’s fees under Civil Code section 1717]; Vella v. Hudgins (1984) 151 Cal.App.3d 515, 522, 198 Cal. Rptr. 725. [The amount to awarded in attorney’s fees is left to the sound discretion of the trial court.]). As we have explained: The experienced trial judge is the best judge of the value of professional services rendered in his court, and while his judgment is of course subject to review, it will not be disturbed unless the appellate court is convinced that it is clearly wrong, meaning that it abused its discretion. (Serrano v. Priest (1977) 20 Cal.3d25, 49, 141 Cal. Rptr. 315, 569 P.2d 1303; Fed-Mart Corp. v. Pell Enterprises, Inc. (1980) 111 Cal.App.3d 215, 228, 168 Cal. Rptr. 525 [an appellate court will interfere with a determination of reasonable attorney’s fees only where there has been a manifest abuse of discretion].) As the Court of Appeal herein observed, the fee setting inquiry in California ordinarily ~3- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ATTORNEY’S FEES Case No.: 17CV308469begins with the lodestar, i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate. California courts have consistently held that a computation of time spent on a case and the reasonable value of that time is fundamental to a determination of an appropriate attorneys’ fee award. (Margolin v, Regional Planning Com. (1982) 134 Cal.App.3d 999, 1004-1005, 185 Cal. Rptr. 145.) The reasonable hourly rate is that prevailing in the community for similar work. (Jd. at p. 1004, 185 Cal. Rptr. 145; Shaffer v. Superior Court (1995) 33 Cal.App.4th 993, 1002, 39 Cal. Rptr.2d 506.) The lodestar figure may then be adjusted, based on consideration of factors specific to the case, in order to fix the fee at the fair market value for the legal services provided. (Serrano v. Priest, supra, 20 Cal.3d at p. 49, 141 Cal. Rptr. 315, 569 P.2d 1303.) Such an approach anchors the trial court’s analysis to an objective determination of the value of attorney’s services, ensuring that the amount awarded is not arbitrary. (/d. at p. 48, fn. 23, 141 Cal. Rptr. 315, 569 P.2d 1303.) Thus, applying the lodestar approach to the determination of an award under Civil Code section 1717, the Court of Appeal in Sternwest Corp. v. Ash (1986) 183 Cal.App.3d 74, 77, 227 Cal. Rptr. 804 explained: Section 1717 provides for the payment of a reasonable fee. After the trial court has performed the calculations [of the lodestar], it shall consider whether the total award so calculated under all of the circumstances of the case is more than a reasonable amount and, if so, shall reduce the section 1717 awards so that it is a reasonable figure. It is well established that the determination of what constitutes reasonable attorney’s fees is committed to the discretion of the trial court. . . [Citations.] The value of legal services performed in a case is a matter in which the trial court has its own expertise. [Citation.] The trial court may make its own determination of the value of the services contrary to, or without the necessity for expert testimony. [Citations.] The trial court makes it determination after consideration of a number of factors, including the nature of the litigation, its difficulty, the amount involved, the skill required in its handling, the skill employed, the attention given, the success or failure, and other circumstances in the case. (Melnyk v. Robledo (1976) 64 Cal.App.3d 618, 623-624, 134 Cal. Rptr. 603.) Although the terms of the contract may be considered, they do not compel any particular award. (Vella v. Hudgins, supra, 151 Cal.App.3d p. 520, 198 Cal. Rptr. 725; All-West Design, Inc. v Boozer (1986) 183 Cal.App.3d 1212, 1227, 228 Cal. Rptr. 736 [trial court was not bound by contingency agreement in awarding fees under Civil Code section 1717]; Beverly Hills Properties v. Marcolino, supra, 270 Cal. Rtpr. 605, 221 Cal.App.3d at p. Supp. 12 [affirming an award of reasonable attorney’s fees for pro bono legal services].) (PLCM Group, supra, at pages 1094-1096). The determination of a reasonable fee is not based upon what was actually billed or paid but is based upon market rate. (Margolin v. Regional Planning Com., supra, at page 1004). This Court’s first task is to determine the reasonable number of hours expended upon relevant issues, including the time spend in applying for and obtaining the fee. (Ketchum v. Moses, supra, 24 Cal.4th at 1131-1132, 1133) By and large, the court should defer to the winning lawyer’s professional judgment as to how much time he was required to spend on the case; after all, he won, and might not have, had he been more of a slacker. (Moreno v. City of Sacramento (9" Cir. 2008) 534 F.3d 1106, 1112 [private attorney general case]). -4- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ATTORNEY’S FEES Case No.: 17CV308469wn In this case, counsel for Plaintiff, Michael G. Ackerman, has filed a declaration attaching all of his itemized bills showing the number of hours spent and the specific tasks performed. Given the amount at stake (over $200,000 claimed on the complaint), and Defendant’s contention that Plaintiff suffered little or no damages, the amount of time spent was extremely conservative. The first bill was for the month of March of 2017. This was immediately prior to the complaint being filed. Thus, these services which were performed pre-litigation included an interview of the client, investigation of the facts and drafting of the complaint. Pre-litigation attorney fees are compensable when the services contribute to the ultimate success of the litigation. (Hogar v. Community Development Commission of the City of Escondido (2007) 157 Cal.App.4th 1358, 1370-1371) Based upon the above-cited cases and authorities, Plaintiff should be awarded $ 64,125.00 as reasonable attorneys fees and all further fees incurred on this motion. DATED: April /2_, 2019 LAW OFFICES OF MICHAEL-G; ACKERMAN ICHAEL G, ACKERMAN, ESQ. Attorneys for Plaintiff, PHILIP RESTIVO ae MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ATTORNEY’S FEES Case No.: 17CV3084690 Oo YN DH BF YW NY BXRRRRBRRESSCRWVIABDRESEREAS PROOF OF SERVICE The undersigned declares: I am a citizen of the United States and a resident of Santa Clara County, State of California. I am over the age of eighteen (18) years and not a party to the within above-entitled action. My business address is 2391 The Alameda, Suite 100, Santa Clara, CA 95050. On April 19, 2019, I served a copy of the following document(s) described as: MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ATTORNEY’S FEES on the interested parties in this action by placing true copies thereof in a sealed envelope addressed to the person(s) listed below: William R. Cumming, Esq Nancy M. Battel, Esq. Cumming & Associates, APLC Law Offices of Nancy Battel 3080 Bristol Street, Suite 630 1101 Westwood Drive, Suite B Costa Mesa, CA 92626 San Jose, CA 95125 Facsimile: (714) 202-3162 Telephone (408) 723-2946 Facsimile (408) 266-7238 (Attorneys for Defendants, James Brown, Worldwide Ground Transportation Solutions, Inc.) (Attorney for Worldwide Ground Transportation Solutions, Inc., and James Brown) ( ) (By U.S. Mail) I am readily familiar with my employer’s business practice for collection and processing of correspondence for mailing with the United States Postal Service. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter is more than one day after dated of deposit for mailing in affidavit. I caused to be deposited such envelope(s) with postage thereon fully paid to be placed in the United States Mail at Santa Clara, California. ( ) @y Personal Service) | caused to be delivered by hand on the interested parties in this action by having true and correct copies placed thereof in an envelope addressed to the office of the addressee(s) as above indicated. ( ) (@y Facsimile) I caused to be served by facsimile a true and correct copy pursuant to C.C.P. §1013(), calling for agreement and written confirmation of that agreement on court -6- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ATTORNEY’S FEES Case No.: 17CV308469eo Nu nA uw order, to the number(s) listed above or on an attached sheet. Said transmission was reported complete and without error. (By E-Mail) I caused a true copy of the foregoing document to be served on William R. Cumming, Esq., with Cumming & Associates, APLC via email at cumming@cummingandassociateslaw.com, and Nancy M. Battel at nancy@battelaw.com. This e- mails were complete and no reports of error were received on April 19, 2019. ( ) (By Federal Express Overnight Mail) | caused to be served a true and correct copy enclosed in a sealed package, for Federal Express Overnight collection and for overnight delivery. I had said envelope marked for collection and overnight delivery to the addressed and to the office of the addressee(s) as above indicated. In the ordinary course of business and including said overnight envelopes, will be deposited with Federal Express at Santa Clara, California. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct and that this declaration was executed in the City of Santa Clara, State of California, on April 19, 2019. STEPHANIE S. HSU -7- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ATTORNEY’S FEES Case No.: 17CV308469