Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County., Los Angeles County Super. Ct. No. BC303547. Paul Gutman, Judge. Reversed and remanded.
Abelson Herron, Vincent H. Herron and Cameron W. Fox for Plaintiff and Appellant.
No appearance for Defendants and Respondents.
COOPER, P. J.
This appeal involves appellant’s effort to collect pre-judgment attorney fees and costs following confirmation of an arbitration award. The superior court initially denied his motion “without prejudice,” stating it wanted more evidence. When appellant did refile with additional detail about the fees charged, defendants argued the new filing was a “motion for reconsideration” and was untimely pursuant to Code of Civil Procedure section 1008. The superior court denied the motion, ruling that appellant failed to prove he was not seeking fees and costs already sought in the arbitration or outside the period between the arbitrations and the judgment. Concluding there was an abuse of discretion in awarding no fees, we shall reverse and remand to allow the trial court to decide which fees and costs were properly sought.
Fees and costs were awarded by the arbitrator and then for the period after the confirmation of the arbitration. Those awards are not at issue in this appeal, which challenges only the denial of appellant’s motion for attorney fees incurred between the arbitration and the judgment confirming the arbitration.
Unless otherwise indicated, all statutory references are to the Code of Civil Procedure.
Procedural History
Appellant, Jeffrey P. Straus, successfully won a construction defect arbitration that was confirmed in the superior court, with judgment entered in his favor. The arbitrator awarded a total of $1,468,217 (sic) to claimant Straus. In addition to $875,637 on the complaint, the arbitrator awarded $92,580 in costs (the amount sought) and attorney fees of $500,000 (over $60,000 less than the amount sought), but declined to award interest.
Defendants and respondents are 2004 Stradella LLC, Julal Construction, Inc., Alexander Shvartsman, Luia Sverdlova and Greg Kurzulian. They have not filed a respondents’ brief in this appeal.
On July 20, 2005, the superior court confirmed the award in the amount of $1,486, 217 (sic.) The judgment, dated August 11, 2005, also awarded interest at 10 percent per annum from July 20, 2005, and “attorney fees in the amount of $per motion and order requesting same and costs in the amount of $per cost bill to be submitted.” (Italics added; the italicized portion is handwritten by the superior court judge.)
Appellant then filed a motion for an award of prejudgment fees and costs. He sought $102,576.83 in attorney fees and $8,065.29 in costs. Respondents opposed the motion.
The superior court initially heard the motion on January 27, 2006, and “denied without prejudice to a full exposition of the fees and costs incurred, and as more fully reflected in the notes of the official court reporter.” Respondents’ counsel opposed both the amount sought, saying his fees for the same period were $20,000, and the lack of proof as to which services were rendered. The motion was denied “without prejudice” to a renewed application and also “without prejudice” to respondents’ objections. Appellant’s counsel stated he could file the new motion “in a week.”
Appellant filed his “renewed motion” on February 7, 2006. Respondents again argued that the first motion was untimely and this was a second bite at that apple and that the renewed motion was not filed at least 16 court days before the hearing.
The matter was continued at the court’s request to March 21, 2006, and also pursuant to the court’s request appellant refiled and re-served his motion. In their opposition to the refiled motion, respondents raised the following grounds: 1. The motion violates section 1008 of the Code of Civil Procedure in that it was a motion for reconsideration of the original motion. 2. Attorney fees for this period had already been awarded by the arbitrator. 3. The statements submitted by counsel are “rife with billing entries for a case unrelated to this case” and it is impossible to separate those billings.
On March 21, 2006, the court heard argument and pursuant to Le Francois v. Goel (2005) 35 Cal.4th 1094, issued an Order to Show Cause why the court should not “reconsider the application for fees” for April 18, 2006, with the parties to brief the issues presented. Appellant supplied a detailed explanation of the delay in requesting fees, the 22% discount he received on fees which were actually paid to his prior firm, the reasonableness of the fees, and the inapplicability of section 1008. Respondents emphasized that appellant initially made a “tactical decision to redact all of the billing entries” and cannot be given another opportunity, through a faulty motion for reconsideration, to provide that information to the court; they did not contest the reasonableness of the fees. After that supplemental briefing and extensive argument, the court took the matter under submission on April 18.
In their reply, respondents added a contention that Le Francois v. Goel, supra, 35 Cal.4th 1094 applies only to interim orders and the trial court’s decision denying attorney fees was a final appealable order. Moreover, respondents contended that some of the fees sought had already been awarded by the arbitrator and fees in related litigation are not recoverable. Furthermore, they added that there was some “gross overbilling.”
In a ruling dated April 24, 2006, the superior court denied appellant’s motion as violative of section 1008 and ruled that its prior order “is to stand in all respects”: “the motions were not renewal motions because they were not based on any new facts, circumstances or law. Rather, plaintiff’s second and third motions were brought by plaintiff to correct his own tactical decision to submit billing statements entirely redacted of any facts which might otherwise have served to enlighten and inform the Court of the work allegedly done and the reasonableness thereof. [¶] Moreover, as set out in defendants’ opposition filed on March 8, 2006 to plaintiff’s third attorney’s fees motion, plaintiff’s second and third motions failed to include the requisite affidavit called for by [section] 1008 [subdivisions,] (a) and (b).” In addition, the court ruled that its initial order was “proper given that there was no evidence before the Court upon which to rule otherwise. The Court’s order having been proper in the first instance, and no good cause having been shown for this Court to reconsider that order, the Court’s order to show cause is DISCHARGED.”
The court filed a second ruling on June 13, 2006. In its second ruling, the court decided that the motion was not one for reconsideration and that appellant was entitled to recover fees and costs incurred in the interpleader action. Nevertheless, the court decided that appellant had failed to meet his burden of proof regarding the exact allocation of fees in order to prevent a double recovery.
This appeal follows. Appellant asks this court to remand for a hearing of the motion on its merits or, in the alternative, to remand with instructions to grant the motion.
CONTENTIONS ON APPEAL
Appellant contends: 1. The superior court erred in ruling that section 1008 prevented the refiled motion. 2. Appellant is entitled to his prejudgment fees and costs on the merits.
DISCUSSION
1. Code of Civil Procedure section 1008 does not apply.
Respondents argue that appellant did not comply with section 1008 so his motion, which respondents contend is a motion for reconsideration, must be denied. The initial denial without prejudice was an interim order where “no final determination of the rights of the parties was contemplated.” (Gibson v. Savings & Loan Commissioner (1970) 6 Cal.App.3d 269 [denial of an alternative writ of administrative mandamus and temporary stay without prejudice is not a final appealable order].)
As in Farber v. Bay View Terrace Homeowners Assn. (2006) 141 Cal.App.4th 1007, 1015, here “the trial court indicated it wanted to reconsider the fee issue when it denied the first motion without prejudice, so Code of Civil Procedure section 1008 is inapplicable. Denial of a motion without prejudice impliedly invites the moving party to renew the motion at a later date, when he can correct the deficiency that led to the denial. In this case, the first motion was denied for want of sufficient evidence. The trial court might have continued the motion to allow the [party] to submit a detailed fee bill, but instead it chose to deny the motion with, in effect, leave to renew it upon further evidence. Which route to chose is an administrative matter of calendar management--some might want to streamline a docket and continue a pending motion to allow supplemental filings, while others might prefer to decide the motion on the existing papers and reconsider that decision in a new motion. In any event, the trial court acted within its powers when, essentially on its own motion, it reconsidered fees and [in Farber v. Bay View Terrace Homeowners Assn.] made the instant fee award.” Section 1008 did not prevent the trial court from allowing the supplemental filings in the case at bench.
Our Supreme court in LeFrancois v. Goel, supra, 35 Cal.4th 1094, 1100, 1107-8, held that a court has the power to reconsider an interim order on its own initiative.
2. The trial court abused its discretion in denying all prejudgment attorney fees.
Paragraph 22 of the pertinent contract provides: “In any action, proceeding, or arbitration between 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 [with an exception not applicable to this case].” Appellant was clearly the prevailing party.
“The determination of reasonable attorney fees is committed to the sound discretion of the trial court, which is in the best position to judge the value of professional services rendered in its court. [Citation.] The court may consider the nature of the litigation, its difficulty, the amount involved in the litigation, the skill employed in handling the litigation, the attention given, the success of the attorney’s efforts, the attorney’s learning and experience, the intricacies and importance of the litigation, the labor necessary, and the time consumed. [Citation.] We will reverse only if the amount awarded is so large or small that we are convinced it is clearly wrong. [Citation.]” (Olson v. Cohen (2003) 106 Cal.App.4th 1209, 1217; PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1096.)
In setting fees, the “inquiry in California ordinarily begins 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.’ [Citation.] The reasonable hourly rate is that prevailing in the community for similar work. [Citations.] 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. [Citation.] Such an approach anchors the trial court’s analysis to an objective determination of the value of the attorney’s services, ensuring that the amount awarded is not arbitrary. [Citation.]” (PLCM Group, Inc. v. Drexler, supra, 22 Cal.4th 1084, 1094.)
Moreover, a judge has been a lawyer. “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 its 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. [Citations.]” (Melnyk v. Robledo (1976) 64 Cal.App.3d 618, 623-624; accord Marsh v. Mountain Zephyr, Inc. (1996) 43 Cal.App.4th 289, 303 [rule applies whether fees are awarded either by agreement or by statute].)
The arbitration award is dated May 11, 2005. The ruling on the petition to confirm was filed July 20, 2005, and the judgment was filed August 11, 2005. The initial motion, which was filed December 27, 2005, sought over $100,000 for attorney fees from May 1 to August 11, all allegedly not included in the fee award that was part of the arbitration award. The supporting exhibits included fees billed in May through September for services provided until August 23, 2005. The description of the services rendered was redacted throughout the document.
The amount also includes a 22% reduction in fees, which appellant negotiated with his former attorneys.
Appellant’s renewed motion, filed February 7, 2006, included the unredacted and detailed billings from his previous attorneys for services from May 2 through August 11, 2005. The billings included description of the services provided, time spent, and the billing rates of the firm’s personnel. In addition, appellant declared he had actually paid his prior firm $147,500 for May 1 through September 15, 2005, a 22% reduction in the initially billed fees for that period, which included fees in addition to those sought in the instant proceedings. The motion was refiled February 17, 2005, with the same documentation, which was also in the exhibits filed in support of the OSC.
Given the detailed evidence submitted, the trial court abused its discretion in denying the award of all attorney fees. There clearly were attorney services rendered during the applicable time period. If the trial court decides some of the fees should be excluded as either previously awarded or for services not rendered during the applicable period, those fees can be excluded. Upon reversal and remand the trial court can also decide if the fees requested are reasonable.
DISPOSITION
The order denying attorney fees is reversed and the matter is remanded for a hearing to determine the amount of attorney fees and costs. Respondents are to bear costs on appeal.
I concur: RUBIN, J.