Bouquet Plaza SDS v. Kimmel CA2/2 ( 2022 )

Filed 2/1/22 Bouquet Plaza SDS v. Kimmel CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
BOUQUET PLAZA SDS, LLC, B306042
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. PC057558)
v.
DINA KIMMEL,
Defendant and Respondent.
APPEAL from an order of the Superior Court of
Los Angeles County. Huey P. Cotton, Judge. Affirmed.
Goodkin Law Group, Daniel L. Goodkin and Elisabeth A.
Turner for Plaintiff and Appellant.
Finnegan & Diba, Kasey Diba and Matthew Sichi for
Defendant and Respondent.
______________________________
Plaintiff and appellant Bouquet Plaza SDS, LLC (Bouquet
Plaza) brought this action against defendant and respondent
Dina Kimmel (Kimmel) and others for breach of a lease and
related guarantees.1 Following the parties’ settlement and entry
of judgment, Bouquet Plaza moved for attorney fees in the
amount of $83,631.95. The trial court’s initial tentative ruling
proposed awarding Bouquet Plaza $25,000. After taking the
matter under submission, the trial court reduced the award to
$15,000. Bouquet Plaza appeals, contending that the trial court
abused its discretion in awarding it the reduced amount of
attorney fees.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Factual Background
On October 22, 2013, Bouquet Plaza, as landlord, entered
into a lease with We Rock the Spectrum, LLC, doing business as
We Rock the Spectrum Kids Gym, as tenant. On May 23, 2016,
the lease was amended and assigned, adding three additional
tenants. Bouquet Plaza would only agree to the assignment on
the condition that Kimmel (and others) enter into a personal
guarantee of the lease. Therefore, on May 23, 2016, Kimmel
signed the personal guarantee, agreeing to guarantee the
tenants’ prompt payment of all sums payable under the lease.
As is relevant to the issues on appeal, the guarantee
provides, in relevant part: “LESSEE/GUARANTOR [Kimmel]
shall reimburse LESSOR [Bouquet Plaza], upon demand, for any
reasonable costs or expenses incurred by LESSOR in connection
1
By the time of judgment, all defendants other than Kimmel
had filed for bankruptcy.
2
with any breach or default of LESSEE under this LEASE,
whether or not suit is commenced or judgment entered. Such
costs shall include, but not be limited to, legal, accounting and
appraisal fees and costs incurred for the negotiation of a
settlement, enforcement of rights or otherwise.”
When the tenants breached the lease, Bouquet Plaza filed
an action against Kimmel and the other tenants on February 1,
2017. The complaint alleges two causes of action: breach of
lease, and breach of guarantees.
Litigation Proceedings, including Kimmel’s Offer to Settle and
Judgment
Shortly after filing its complaint, Bouquet Plaza filed an
application for a writ of attachment against Kimmel, asking that
$361,632.63 be secured by the attachment. Bouquet Plaza later
reduced its request to $146,753.30. On July 26, 2017, the trial
court granted Bouquet Plaza’s application as requested. The writ
was never enforced.
On or about June 3, 2019, Bouquet Plaza moved for
summary judgment. While that motion was pending, Kimmel
served on Bouquet Plaza an offer to settle the matter, exclusive of
attorney fees, pursuant to Code of Civil Procedure section 998.2
Bouquet Plaza accepted the offer, and judgment was entered in
favor of Bouquet Plaza and against Kimmel in the amount of
$89,000.
Bouquet Plaza’s motion for attorney fees
On November 7, 2019, Bouquet Plaza filed a motion for
attorney fees, seeking $83,631.95. According to Bouquet Plaza,
2
All further statutory references are to the Code of Civil
Procedure unless otherwise specified.
3
this matter “should have been a simple breach of Guarantee by
. . . Kimmel.” But she protracted this litigation with evasive
litigation tactics. Despite Bouquet Plaza’s efforts to resolve this
matter when the dispute arose, Kimmel failed to make any
reasonable offer to settle until she served her section 998 offer in
July 2019. Kimmel also was allegedly evasive regarding her
finances; she repeatedly provided misleading and incomplete
documentation in response to discovery requests, forcing Bouquet
Plaza to expend additional time and resources to obtain the
information it sought.
Bouquet Plaza further argued that Kimmel filed a
meritless opposition to its application for a writ of attachment,
forcing Bouquet Plaza to incur additional legal fees.
And, while this litigation was pending, Bouquet Plaza
learned that Kimmel fraudulently transferred certain real
property, which would have provided a source of funds for
Kimmel to comply with her obligations under the guarantee.
In light of the foregoing, Bouquet Plaza’s fee request was
reasonable, and its attorneys’ fees were reasonable “for the
Los Angeles legal market for individuals of their skill, experience
and background.”
In support of its motion, Bouquet Plaza submitted a
declaration from its attorney. As is relevant to the issues raised
in this appeal, attached to his declaration was Exhibit K, which
contained “invoices for attorneys’ fees for work performed by our
firm . . . in connection with this case between February 2017 and
October 2019. These invoices have been redacted, at my direction
and under my supervision to protect attorney-client privileged
information and to exclude fees related to this matter.” The
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declaration went on to describe, in brief paragraphs, the work
performed each month.
He summarized that the work performed by Bouquet
Plaza’s law firm included “preparation of the claim, meeting with
witnesses and opposing parties, preparing for and attending
depositions in particular of [Kimmel], researching and preparing
the Application for Writ of Attachment, responding to [Kimmel’s]
opposition to such application and attending the hearing,
extensive efforts to obtain discovery responses, researching and
drafting the Motion for Summary Judgment and preparing
exhibits, and extensive communications with opposing counsel in
multiple efforts to resolve the dispute.”
Kimmel’s opposition
Kimmel opposed Bouquet Plaza’s motion. She argued that
Bouquet Plaza’s counsel “used this straight forward action as a
fee churning exercise. The issues in this action are not complex.
There was a lease that called for rent. The tenants failed to pay
rent. The lease was guaranteed by Kimmel, but for a limited
time which was a point of contention. Tenants were unable to
make good on their rent obligations, and [Bouquet Plaza] was to
mitigate and relet premises. However, [Bouquet Plaza] refused
to allow Kimmel to assist with mitigation and granted new
tenants improvements and rent abatement for an excessive
amount of time knowing that [Bouquet Plaza would] seek to
recover monies from named defendants, and did not mitigate, all
of which were further points of contention. Notwithstanding,
Kimmel conducted discovery, and she was forthright with her
personal financial status, in hopes of resolution. Yet, [Bouquet
Plaza] knowingly incurred attorney fees under these
circumstances, which were unreasonable.” She also argued that
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the fee request was disproportionate to the recovery Bouquet
Plaza obtained. And, Kimmel asserted that Bouquet Plaza’s fee
request was excessive. Finally, she contended that the fees
requested were vague since they were presented in a block billing
format. She asked that the trial court reduce the attorney fee
award to a reasonable amount.
In a supplemental opposition, Kimmel asked that the trial
court limit Bouquet Plaza’s attorney fees to $4,830, pursuant to
Los Angeles Superior Court, Local Rules, rule 3.214(a).3
Hearing on Bouquet Plaza’s motion for attorney fees
At the hearing on Bouquet Plaza’s motion for attorney fees,
the trial court’s tentative ruling proposed awarding Bouquet
Plaza $25,000. It “noted that as a preliminary matter, [Bouquet
Plaza’s] fee request included amounts billed for paralegal and
legal secretary time, which the Court believed were not
customary, and not proper.”
It also indicated that “the award was based on the
perceived lack of complexity of the case and the fact that the case,
in the Court’s view, did not warrant such attorney’s fees to be
incurred on what it called a ‘straightforward’ breach of
commercial lease agreement and a guaranty, against [Kimmel],
the only non-bankrupt defendant named in the action.”
Regarding the evidence in support of Bouquet Plaza’s
motion, the trial court “noted its concern that the Motion for Fees
contained only brief, block summaries of the work performed each
month, and was not supported with any itemized invoices.”
3
Los Angeles Superior Court, Local Rules, rule 3.214(a) sets
a schedule for the amount of attorney fees recoverable by a
prevailing party on a contract.
6
Bouquet Plaza’s counsel responded that Exhibit K did contain
invoices. The trial court replied that the invoices submitted in
Exhibit K “were redacted so as to not allow the Court, to
ascertain exactly what the services pertained to, and who was
performing them for what purpose. The Court did indicate that
the billing appeared vague and was heavily redacted, making it
difficult for the Court to get a good picture regarding the work
that was done [pursuing] . . . Kimmel and pursuing the other
(more culpable) Defendants.”
Ultimately, the trial court stated that it needed additional
time to review the invoices. Thus, it took the matter under
submission.
Trial court order
On March 26, 2020, the trial court issued its final order,
awarding Bouquet Plaza $15,000. At the outset of its ruling, the
trial court noted that Kimmel did “not dispute that [Bouquet
Plaza was] the prevailing party or that [it was] entitled [to
attorney fees] under the contract, [Civil Code] Section 1717, and
settlement agreement to its fees. Rather [Kimmel] object[ed] to
the amount of the request.” The trial court continued: “Statutory
attorney fees are ordinarily determined by the court pursuant to
the ‘lodestar’ or ‘touchstone’ method. Under this approach, a base
amount is calculated from a compilation of time reasonably spent
and reasonable hourly compensation of each attorney. The base
amount is then adjusted in light of various factors. [Citations.]
“The lodestar method vests the court with discretion to
decide which of the hours expended by the attorneys were
‘reasonably spent’ on the litigation. [Citations.] Normally, a
‘reasonable’ hourly rate is the prevailing rate charged by
attorneys of similar skill and experience in the relevant
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community. [Citation.] The court has discretion to adjust fees
downward, especially when it appears that the fee claimant has
duplicated efforts or padded fees. [Citation.]
“In this case, several factors weigh in favor of reducing the
award. First, the rates charged by the attorneys are reasonable
for attorneys litigating on behalf of landlords in breach of lease
cases in the Northwest District. . . . However, this court rarely
sees billing for paralegals and almost never sees billing for legal
assistants or secretaries. Yet [Bouquet Plaza’s] counsel has billed
for the firm’s legal assistant and paralegal . . . and also has
included in fees the rate for an individual who appears to be an
in-house process server or runner, . . .
“Second, although the billing here is itemized on an invoice,
the billing is vague and heavily redacted making it difficult for
the court to get a good picture regarding the work that was done
pursuing . . . [Kimmel] and pursuing the other (more culpable)
defendants. It is clear that a majority of the time was spent
pursuing other defendants. [Bouquet Plaza’s] attorneys appear
to have also performed some property management tasks for
which they billed attorney hours. The hours spent on certain
tasks appear excessive. For example, as [Kimmel] points out in
her brief, [she] propounded minimal and basic discovery.
[Bouquet Plaza] billed just over 11 hours for responding yet
responded with mostly objections.
“Third, the matter was not a complex case. It was a fairly
simple straight forward breach of lease matter. There was little
to no law and motion required in the case. Notably, [Kimmel] did
not breach the lease but was merely a guarantor and the only
solvent defendant. [Bouquet Plaza] argues that much of the
litigating revolved around discovery of [Kimmel’s] financial
8
situation, which has little to do with whether the lease was
breached and whether [Kimmel] signed an enforceable
guarantee.
“For these reasons, the court, in the exercise of its
discretion and based on its familiarity with what attorney fees on
a typical breach of commercial lease should cost grants the
attorney fees motion. However, the court must reduce the award.
“[Kimmel] has urged the court to calculate fees according to
Los Angeles Superior Court Rule 3.214. Under the formula,
. . . the attorney fees award is $4,830. Cases have cautioned that
a court must exercise its own discretion and avoid the use of the
local rule when a statute conflicts with a local rule. . . . In this
case, [Civil Code] section 1717 governs the fee award and
requires the court to determine a reasonable fee. After
considering the matters above, the court award[s] $15,000 as a
reasonable fee.”
Appeal
Bouquet Plaza’s timely appeal ensued.
DISCUSSION
I. Standard of review
As the parties agree, we review an order granting or
denying attorney fees, as well as the amount of a fee award, for
abuse of discretion. (Graciano v. Robinson Ford Sales, Inc. (2006)
144 Cal.App.4th 140, 148.) After all, “[t]he ‘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.” (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084,
1095.)
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“‘An abuse of discretion occurs only where it is shown that
the trial court exceeded the bounds of reason. [Citation.] It is a
deferential standard of review that requires us to uphold the trial
court’s determination, even if we disagree with it, so long as it is
reasonable. [Citation.]’” (Bloxham v. Saldinger (2014) 228
Cal.App.4th 729, 753.) “We will reverse the trial court’s
determination only if we find that ‘in light of all the evidence
viewed most favorably in support of the trial court, no judge could
have reasonably reached a similar result.’” (Bates v. Presbyterian
Intercommunity Hospital, Inc. (2012) 204 Cal.App.4th 210, 221.)
In other words, “[w]e presume the fee approved by the trial court
is reasonable.” (Karton v. Ari Design & Construction, Inc. (2021)
61 Cal.App.5th 734, 743.)
The burden is on the party seeking attorney fees to prove
that the fees it seeks are reasonable. (Gorman v. Tassajara
Development Corp. (2009) 178 Cal.App.4th 44, 98.) It is also the
appealing party’s burden to prove that the trial court abused its
discretion. (Ibid.)
II. Relevant law
The fee setting inquiry in California ordinarily begins with
the “lodestar,” namely the number of hours reasonably expended
multiplied by the reasonable hourly rate. (PLCM Group, Inc. v.
Drexler, supra, 22 Cal.4th at p. 1095.) “‘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 [Civil Code] section 1717 award so that it is
a reasonable figure.’” (PLCM Group, Inc. v. Drexler, at pp. 1095–
1096.) In determining “reasonable” compensation, trial courts
must carefully review attorney documentation of hours expended;
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“‘padding’” in the form of inefficient or duplicative efforts is not
subject to compensation. (Ketchum v. Moses (2001) 24 Cal.4th
1122, 1132.)
In adjusting the lodestar figure, 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 of the case. (Melnyk v. Robledo (1976) 64
Cal.App.3d 618, 623–624.) Our Supreme Court has never “carved
the factors used [to calculate the lodestar] into concrete or barred
consideration of other relevant and nonduplicative factors; nor
have the courts of appeal sought to do so.” (Lealao v. Beneficial
California, Inc. (2000) 82 Cal.App.4th 19, 40, fns. omitted.)
The value of legal services performed in a case is a matter
in which the trial court has its own expertise. (Melnyk v.
Robledo, supra, 64 Cal.App.3d at p. 623.)
III. The trial court did not abuse its discretion in awarding
Bouquet Plaza $15,000 in attorney fees
Applying these legal principles, we conclude that the trial
court did not abuse its discretion in awarding Bouquet Plaza
$15,000 in attorney fees. At the beginning of its analysis, the
trial court noted that it was using the lodestar method to
calculate Bouquet Plaza’s attorney fees. It then went on to set a
reasonable fee. First, it set forth the reasons why it was reducing
the fee award. Specifically, this was a straightforward breach of
lease matter. While Bouquet Plaza’s counsel’s hourly rate was
reasonable, the trial court determined that it improperly
requested certain fees. And, although Bouquet Plaza submitted
invoices in support of its fee request, the trial court found those
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invoices to be vague and too heavily redacted to support Bouquet
Plaza’s fee request. Rather, it appeared that Bouquet Plaza had
charged excessively, treating a relatively simple case as a
complex one.
Notably, in setting a reasonable amount, the trial court
expressly rejected Kimmel’s contention that Los Angeles Superior
Court, Local Rules, rule 3.214 applied, limiting Bouquet Plaza to
$4,830 in attorney fees. Instead, it held that pursuant to Civil
Code section 1717 it was required to determine a reasonable fee.
Under these circumstances, we conclude that the trial
court, using its expertise, properly set the value of legal services
provided. (Melnyk v. Robledo, supra, 64 Cal.App.3d at p. 623.)
Its determination was not arbitrary.
Urging us to reverse, Bouquet Plaza argues that the trial
court erred in arbitrarily reducing its fee award when itemized
invoices supporting the fee request were provided in Exhibit K. 4
We have carefully reviewed the invoices submitted as Exhibit K.
As the trial court aptly noted, the invoices are vague and highly
redacted, rendering it virtually impossible to assess the work
done by counsel. For example, many of the invoice entries
provide, in block format, that counsel “[r]eview[ed],” “analyze[d],”
and conducted “[r]esearch.” And counsel charged for tasks and
personnel that the trial court found inappropriate. Thus, the
trial court determined that hours spent on certain tasks appeared
excessive. The trial court’s assessment of the invoices is
4
At times, Bouquet Plaza argues that the trial court
mistakenly indicated that the motion for attorney fees was not
supported by itemized invoices. Not so. As set forth in the trial
court’s order, it specifically reviewed the invoices in Exhibit K.
12
supported by the evidence. (Christian Research Institute v. Alnor
(2008) 165 Cal.App.4th 1315, 1318–1319 [“[s]ubstantial evidence
supports the trial court’s conclusion counsel leavened the fee
request with” overinclusive, unculled, redundant, redacted, and
padding billing entries, thereby “destroying the credibility of the
submission and . . . justifying a severe reduction”].)
Relying upon Los Angeles County Bd. of Supervisors v.
Superior Court (2016) 2 Cal.5th 282, Bouquet Plaza defends its
redaction of the invoices on the grounds that it was protecting the
attorney-client privilege. The argument is irrelevant. Regardless
of whether Bouquet Plaza properly redacted its invoices or went
too far with its redactions, based upon what was presented to the
trial court, coupled with the trial court’s familiarity with the
issues in this case, the trial court acted well within its discretion
in setting the fee award at $15,000.
Bouquet Plaza further argues that the trial court erred in
implicitly finding that “fees should be apportioned between the
defendants, or that Kimmel’s fees be reduced on account of
conduct by the other defendants.” According to Bouquet Plaza,
the plain language of the guarantee makes Kimmel liable for all
fees incurred in this litigation. Bouquet Plaza’s argument
notwithstanding, it is not clear that that was the basis for the
trial court’s reduction of the fee request. Rather, as pointed out
by Kimmel in her respondent’s brief, it seems that the trial
court’s reference to Bouquet Plaza’s pursuit of other defendants
was simply a comment on the vagueness of counsel’s bills.
Regardless, we need not determine whether Bouquet
Plaza’s argument and interpretation of the guarantee is correct.
“We will uphold the decision of the trial court if it is correct on
any ground. [Citation.]” (Schubert v. Reynolds (2002) 95
13
Cal.App.4th 100, 110.) And, for the reasons set forth above, the
trial court’s order is correct.
In addition, Bouquet Plaza contends that the trial court
improperly imposed a downward adjustment of its fee request
based on the faulty notion that it could set an appropriate fee
based upon comparable litigation. That is not what occurred
here. Rather, the trial court considered a variety of permissible
factors and properly reduced the amount of fees requested to one
that was reasonable. (Save Our Uniquely Rural Community
Environment v. County of San Bernardino (2015) 235
Cal.App.4th 1179, 1183, fn. 1, [“After making the lodestar
calculation, the court may augment or diminish that amount
based on a number of factors specific to the case”], id. at p. 1186
[“A trial court is also justified in reducing a claim if it believes the
billing is unjustly inflated”].)
In much of its opening brief, Bouquet Plaza contends that
the trial court’s order must be reversed because it does not
provide an adequate explanation in support of its ruling. We are
not convinced. The trial court reviewed the parties’ moving
papers and evidence. It entertained oral argument. It took the
matter under submission in order to review the exhibits
thoroughly. After all this, the trial court issued a five-page
minute order setting forth its reasons for granting Bouquet
Plaza’s motion, yet reducing the fee award. Its order is
sufficiently detailed. (See Ketchum v. Moses, supra, 24 Cal.4th at
pp. 1140–1141; Gorman v. Tassajara Development Corp., supra,
178 Cal.App.4th at p. 101 [“there is no general rule requiring
trial courts to explain their decisions on motions seeking attorney
fees” so long as the trial court’s rationale for its award is
apparent on the face of the record].)
14
To the extent Bouquet Plaza requests reversal based upon
statements made in the trial court’s initial tentative ruling, those
comments were not binding; by definition, they were tentative.
After entertaining oral argument and taking the matter under
submission, the trial court exercised its discretion and awarded
Bouquet Plaza attorney fees. What may or may not have been
set forth in the tentative ruling is immaterial. (Diaz v. Shultz
(1947) 81 Cal.App.2d 328, 332 [“‘[I]t is what the court did, and
not what the judge of the court stated during the course of the
trial, that determines the course of our inquiry upon this appeal,
as there is a vital distinction between what the judge of a trial
court may say and what the trial court actually does’”].)
DISPOSITION
The order is affirmed. Kimmel is entitled to costs on
appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_____________________, J.
ASHMANN-GERST
We concur:
________________________, P. J.
LUI
________________________, J.
HOFFSTADT
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