NHP/PMB Burbank Medical etc. v. Premiere Medical etc. CA2/7 ( 2020 )

Filed 12/14/20 NHP/PMB Burbank Medical etc. v. Premiere Medical etc. CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
NHP/PMB BURBANK MEDICAL B299841
PLAZA I, LLC,
(Los Angeles County
Plaintiff and Appellant, Super. Ct. No. BC604193)
v.
PREMIERE MEDICAL CENTER
OF BURBANK, INC. et al.,
Defendants and Respondents.
APPEAL from a postjudgment order of the Superior Court
of Los Angeles County, Curtis A. Kin, Judge. Affirmed as
modified.
Mann & Zarpas and Lloyd S. Mann for Plaintiff and
Appellant.
Roger H. Stetson; Freund Legal, Jonathan D. Freund,
Craig A. Huber; Quinn Emanuel Urquhart & Sullivan,
Christopher Tayback; Eversheds Sutherland (US) and Ian S.
Shelton for Defendants and Respondents Premiere Medical
Center of Burbank, Inc. and Michael D. Marsh.
NHP/PMB Burbank Medical Plaza I LLC (NHP) appeals a
postjudgment order awarding its former tenants, Premiere
Medical Center of Burbank, Inc. and Dr. Michael D. Marsh
(collectively Premiere), $988,539 in attorney fees as the
prevailing party in this commercial unlawful detainer action
after the initial judgment in favor of NHP was reversed on
appeal. NHP primarily contends Premiere failed to demonstrate
the fees were incurred in the unlawful detainer action and not in
the parties’ related actions. It also argues an award of nearly
$1 million in attorney fees for this unlawful detainer action was
patently unreasonable and sums were included for nonexistent or
duplicative work. We agree the fee award included one improper
item, strike the amount awarded for it, and affirm the
postjudgment order as modified.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Unlawful Detainer Trial
a. The lease and Premiere’s failure to pay rent
Premiere leased office space in Burbank Medical Plaza,
located across the street from Providence St. Joseph Hospital in
Burbank. The initial lease agreement, signed by Dr. Marsh on
behalf of Premiere Medical Center, identified suite 300 as the
subject of the lease. Subsequent lease amendments added
suites 355 and 325 to the lease. Each suite contained separate
1
rental obligations and lease expiration dates.
1
Our factual summary borrows from our prior opinion in
this action. (See NHP/PMB Burbank Medical Plaza I, LLC v.
Premiere Medical Center of Burbank, Inc. (as mod. Dec. 19, 2018,
B284625) [nonpub. opn.].)
2
In August 2014 Premiere elected not to exercise its option
to extend the term of the lease to suite 325, although it continued
to do business in that suite with NHP’s consent as a holdover
(month-to-month) tenant after the lease term expired on
August 31, 2014. By October 2015 Premiere had stopped paying
the holdover (monthly) rent due for suite 325 and, according to
NHP, soon thereafter stopped paying rent on all three suites.
On October 6, 2015 Premiere moved its equipment and
employees out of suite 325 and informed NHP it was
surrendering the space. On October 9, 2015 NHP’s agent signed
a return-of-premises form confirming suite 325 had been
returned to NHP in accordance with paragraph 5.7.2 of the lease,
which required the tenant to return the premises in as good
condition as it had received them, subject only to ordinary wear
and tear. After its approval of Premiere’s return of suite 325,
NHP stopped charging Premiere rent for that suite.
b. NHP’s three-day notices to quit or pay rent
On November 24, 2015 NHP served on Premiere four
separate three-day notices to quit or pay rent pursuant to Code of
2
Civil Procedure section 1161. Instead of identifying the rental
amounts due by suite number, each notice defined “the premises”
as “suites 300, 325 and 355” collectively and sought an aggregate
3
amount of rent for all three suites.
2
Statutory references are to this code unless otherwise
stated.
3
The four notices to quit differed from each other only in the
category of rent sought for the suites: (1) base rent under the
lease; (2) base rent as a holdover tenant; (3) operating expenses,
included as rent under the lease; and (4) late charges. Each
notice stated it was issued pursuant to section 1161.1 and
3
c. NHP’s unlawful detainer complaint and the court’s
entry of judgment for NHP
On December 14, 2015 NHP filed the instant unlawful
detainer action seeking possession of all three suites and the
rental amounts and late charges identified in each of the notices
to quit. In response Premiere argued, among other things, NHP’s
notices to quit were defective: More than half the rent identified
in the notices included rental amounts for suite 325, which
Premiere had already surrendered. While those rents may be
recoverable in a breach of lease action, Premiere asserted, they
were not properly included in the notices to quit or recoverable in
unlawful detainer. In light of the defects in the notices, Premiere
argued, NHP could not prevail in unlawful detainer.
NHP argued the notices to quit were valid because
Premiere had never fully surrendered suite 325: Due to the
configuration of the suites, Premiere had continued to use
suite 325 to access suite 300, making the notices to quit, which
included unpaid rent for that suite, legally proper.
Following an eight-day court trial that spanned a four-
month period from November 2016 through February 2017, the
court found in favor of NHP and awarded it possession of all
three suites and incidental damages in the amount of
4
$1,141,074.60. In its written statement of decision the court
represented the landlord’s “good faith and reasonable estimate” of
the amounts due and owing.
4
The court’s award was comprised of $373,592.68 in rental
amounts (inclusive of operating expenses and late charges) due
and owing, as identified in NHP’s notices to quit, plus
$624,207.97 in holdover damages, $53,121.16 in prejudgment
interest and $90,152.79 in attorney fees and costs.
4
concluded, “[T]he three-day notices, and the charges related to
Suite 325 on those notices, were proper by virtue of the fact that
[Premiere], as of the date the Notices were served, as of the date
the unlawful detainer was filed, and, in fact, up to and including
when this action was tried, still had ‘constructive possession’ over
Suite 325, and, were in essence, interfering with the Plaintiff’s
possession of Suite 325 thus making three-day notices and an
unlawful detainer action, related to Suite 325, both proper and
necessary.” (NHP/PMB Burbank Medical Plaza I, LLC v.
Premiere Medical Center of Burbank, Inc. (as mod. Dec. 19, 2018,
B284625) [nonpub. opn.], at p. 10.)
2. Postjudgment Proceedings
a. Premiere’s motion to vacate the judgment
On July 11, 2017 Premiere moved pursuant to section 473
or the court’s inherent authority to vacate the judgment based on
intrinsic fraud. Premiere argued public records it had only
recently obtained proved Stephen King, the president of NHP’s
managing agent, had testified falsely at trial that Premiere had
interfered with NHP’s ability to rent suite 325. The court denied
Premiere’s motion, finding Premiere had not been diligent in
filing its motion and, in any event, King had testified truthfully
to the best of his knowledge. The court concluded Premiere had
not carried its burden to demonstrate intrinsic fraud.
b. Premiere’s notice of appeal, its petition for writ of
supersedeas and reversal of judgment on appeal
Premiere filed a timely notice of appeal directed to both the
judgment and the postjudgment order denying its motion to
vacate.
On August 4, 2017 Premiere petitioned for a writ of
supersedeas to stay execution of the judgment pending appeal.
5
Following briefing, on September 21, 2017 we ordered the part of
the judgment awarding NHP possession of the premises stayed
pending disposition of the appeal on condition that Premiere
5
make timely rental payments for suites 325 and 300.
On November 20, 2018 we reversed the unlawful detainer
judgment, concluding the notices to quit were defective because
they did not provide reasonable estimates of the amounts due on
the occupied suites (suites 300 and 355). We rejected the trial
court’s ruling Premiere had remained in constructive possession
of suite 325 despite its surrender of the premises, holding the
court’s finding that Premiere had interfered with NHP’s
repossession of suite 325 in a manner tantamount to a holding
over was not supported by substantial evidence. (NHP/PMB
Burbank Medical Plaza I, LLC v. Premiere Medical Center of
Burbank, Inc., supra, B284625 at pp. 20-23.) We did not reach
Premiere’s alternative contention the trial court had erred in
6
denying its motion to vacate the judgment. (Id. at p. 26, fn. 15.)
5
The parties agreed Premiere no longer occupied suite 355.
6
NHP’s petition for review in the Supreme Court was
denied. (NHP/PMB Burbank Medical Plaza I, LLC v. Premiere
Medical Center of Burbank, Inc. (Jan. 30, 2019, S253265).)
6
3. Related Cases Between the Parties
In addition to the instant unlawful detainer action, the
parties have sued and countersued each other in three separate
actions: In November 2015 Premiere sued NHP alleging
13 causes of action arising from its tenancy (Super. Ct. L.A.
County, Case No. EC064632) (the “Providence” action); in August
2016 NHP sued Mark Anten, Premiere’s personal guarantor
under the lease (Super. Ct. L.A. County, Case No. EC065534);
and in March 2017 NHP sued Premiere for all damages related to
breach of lease not covered by the unlawful detainer action
(Super. Ct. L.A. County, Case No. EC066331). The superior court
determined all four cases were related. According to NHP, the
related actions were stayed pending resolution of the appeal of
the unlawful detainer judgment.
Following our decision on appeal and issuance of the
remittitur on January 21, 2019, Premiere filed peremptory
challenges and motions for recusal (§§ 170.6, 170.1,
subd. (a)(6)(A)(i)) directed to Judge Ralph C. Hofer, the presiding
judge in all four cases. On February 15, 2019, after the
successful peremptory challenge in the unlawful detainer action,
Judge Hofer recused himself from the other related cases, finding
it would be in the interest of justice for the same bench officer to
hear all four matters. All four cases were reassigned to Judge
Curtis A. Kin.
4. Premiere’s Motion for Attorney Fees Pursuant to Lease
On March 11, 2019 Premiere moved pursuant to
section 12.3 of the lease agreement to recover $988,539 in
attorney fees as the prevailing party in the unlawful detainer
7
7
action. Specifically, Premiere sought $486,662 in attorney fees
incurred by its counsel Freund Legal; $478,945 in fees incurred
by Quinn Emanuel Urquhart & Sullivan (Quinn Emanuel), which
represented Premiere as cocounsel with Freund Legal in the
postjudgment and appellate proceedings; and $22,932 in
attorney fees incurred by Eversheds Sutherland, which
represented Premiere after Ian Shelton, formerly of Quinn
Emanuel, joined Eversheds Sutherland and continued to oversee
the unlawful detainer action for Premiere following our
remittitur.
c. Premiere’s moving papers
Jonathan D. Freund, the named partner of Freund Legal
and the firm’s billing partner, stated in his declaration
supporting Premiere’s motion that his hourly rate for Premiere
was $700, which was “on the lower end of my hourly rate for
clients; but given the longstanding relationship with Dr. Marsh, I
have agreed to this rate.” Freund worked on the case with firm
partner Craig A. Huber, whose hourly billing rate was $625, and
the firm’s associate, Jugpreet S. Mann, whose hourly rate was
$225. According to Freund, Premiere had made it clear the
unlawful detainer defense was “essentially a bet-the-business-
7
Section 12.3 of the lease provides in part, “In any
proceeding . . . involving the prosecution or defense of an
unlawful detainer action and/or breach of this Lease, the
prevailing party shall be entitled to recover in addition to all
other items of recovery permitted by law, actual attorney’s fees
and all litigation-related costs (including expert witness fees)
incurred; however, no attorneys’ fees shall be recoverable with
respect to any other claim, tort or otherwise, in any proceeding
involving this Lease.”
8
case in that, were Premiere to lose, it would be unable to continue
as an ongoing business enterprise. If Premiere were evicted, it
would have no space from which [to] perform medical services,
and the liabilities from an adverse judgment would prove fatal to
the business. Consequently, I staffed the case with myself and
my most seasoned colleague, Mr. Huber, as well as a younger
associate to handle the less important issues. And given the
importance of the matter to Premiere, I was involved in all of the
pleadings and submissions. Mr. Huber was also primarily in
charge of handling the day-to-day aspects of the case and
attended most of the court hearings; but he too had his hands on
all of the filings, correspondence, conducted much of the legal
research, and prepared the case for trial. There was no
duplication of effort on the handling of this case, but there was
more than one attorney involved in each task. Again, the
magnitude of the consequences from an adverse judgment were
too great to not have all hands on deck.”
Freund stated, “Because of the Firm’s longstanding
relationship with Premiere, we did not always submit monthly
billing statements to Premiere. Instead, we used general billing
practices directed to the particular matters on which we were
working. Each attorney working on this case kept track of [his]
time spent on categories of specific tasks on a daily basis and
formed the basis for billings to the client.” Based on this
information, Freund prepared (and included within his
declaration) three “true and accurate” summaries of work
performed and the time expended by Freund, Huber and
9
8
Jugpreet Mann “in this case from inception through this
motion.” Each summary was organized by category of legal
work—prelitigation, litigation, settlement efforts, discovery, trial
preparation, trial and posttrial/appeal—and each category
contained brief descriptions of work performed under that
category. For example, in Freund’s billing summary under the
category “trial preparation,” the description read, “Trial
preparation and support, including witnesses (Anten, Marsh,
Kim, King) and exhibit preparations and witness examinations;
prepare opening statement.” In the separate column for total
time spent, Freund identified 30 hours. The summaries did not
include any dates.
Freund stated he had spent a total of 282 hours (at
$700/hour) on the unlawful detainer case for a total of $197,400;
Huber spent 427 hours (at $625/hour) for a total of $266,875; and
Jugpreet Mann spent 99.5 hours (at $225/hour) for a total of
$22,387.50. Freund stated each summary “only includes work on
this case, not the other matters between my clients and the
Plaintiff, or any other matters.”
In his declaration supporting the fee motion, Shelton stated
his former firm, Quinn Emanuel, associated in as cocounsel with
Freund Legal in the unlawful detainer action in spring 2017 after
the superior court had issued its statement of decision. Shelton
and his former colleague, Quinn Emanuel partner John D’Amato,
worked on all postjudgment proceedings, including those
involving Premiere’s motion for stay of execution of judgment, the
8
Because Jugpreet Mann (Premiere’s counsel) and Lloyd
Mann (NHP’s counsel) share the same surname, we sometimes
refer to them by their first and last names for clarity.
10
motion to vacate the judgment, the petition for writ of
supersedeas, the appeal, the petition for rehearing following the
appellate decision (resulting in a modification of the appellate
opinion without a change in judgment) and NHP’s petition for
review in the Supreme Court. Later, after Shelton left Quinn
Emanuel in January 2019 for Eversheds Sutherland in Austin,
Texas, he continued to oversee the litigation on behalf of
Premiere. Shelton stated D’Amato’s hourly rate was $700 and
D’Amato spent a total of 196.8 hours (for a total of $137,760);
Shelton’s hourly billing rate was $650 while at Quinn Emanuel,
and he spent a total of 524.9 hours (for a total of $341,185); after
he joined Eversheds Sutherland, his hourly billing rate decreased
to $490, the prevailing market rate in the Austin region; and he
spent a total of 46.8 hours from January 2019 to March 2019 in
connection with the motion for attorney fees and costs.
Shelton averred Quinn Emanuel’s “regular billing
statements and/or time entry tracking and case management
software identif[ied] the services provided by each Quinn
Emanuel attorney on a day-by-day basis, in tenth of an hour
increments”; those time entries were provided to support the
motion. Shelton also declared his and D’Amato’s hourly billing
rates were consistent with prevailing market rates for attorneys
of similar skill and expertise in Los Angeles, and his lower hourly
billing rate at Eversheds Sutherland reflected the prevailing
market rate of comparable firms in Austin, Texas. Shelton also
provided a summary of the 46.8 hours of time he spent in
connection with the attorney fee motion.
Premiere also submitted excerpts from National Law
Journal surveys of hourly billing rates of various firms published
in 2014 and 2015 to support its assertion the hourly billing rates
11
of all counsel were well within the 2015 market rates for
comparable firms.
In his declaration supporting Premiere’s attorney fee
motion, Dr. Marsh stated the unlawful detainer case “posed an
existential threat to my business and seriously threatened my
livelihood. Premiere [Medical] and I were both named
defendants. If the $1.14 million monetary portion of the
judgment had been enforced, it would have been financially
devastating to me and my family.” Marsh continued, “At the
time judgment was entered on May 19, 2017, there was no other
suitable medical office space in the Burbank area that was
available for Premiere to lease. If the judgment of possession had
been enforced, Premiere would have been evicted from the only
medical office space available to Premiere at the time, and
Premiere’s business—which I spent my life building—would have
been destroyed. It was not until October 1, 2018, during the
appeal, that Premiere was able to locate alternative office space
in Toluca Lake.” “Given these enormously high stakes,” Marsh
explained, he retained the “very best” (and not inexpensive)
attorneys to safeguard his practice and his livelihood.
d. NHP’s opposition papers
In its opposing papers NPH argued nearly $1 million in
attorney fees for a routine unlawful detainer action was patently
unreasonable and purposely inflated to approximate the amount
of damages it anticipated Premiere would be found liable for in
the related actions. Most of NHP’s opposition was directed to
Freund Legal’s fees: NHP emphasized that neither Freund nor
Huber was experienced in unlawful detainer so as to justify their
premium rates. In addition, NHP asserted Freund’s “billing
summaries,” provided in “block form” and in what appeared to be
12
“five hour increments” with no corresponding dates, were
insufficient to demonstrate the work performed related to the
limited unlawful detainer trial and not to any of the related
actions between the parties. NHP also observed much of the
evidence produced and obtained in discovery, and for which
Premiere sought and obtained attorney fees, had been excluded
at trial as irrelevant to the limited issue in the unlawful detainer
action.
In addition to these general contentions, NHP also
advanced a number of specific objections: (1) the billing
summaries reflected duplicative billing; (2) Freund Legal
identified hours spent on “phantom” discovery that was never
filed; (3) to the extent the discovery billings referred to ex parte
applications involving discovery disputes, they were duplicative
of other entries in the “litigation” category; (4) Freund Legal
identified hours spent on “prelitigation” matters before the
unlawful detainer action was even filed, suggesting those hours
were unrelated to the unlawful detainer action; (5) 77 hours
(12 hours by Freund; 35 hours by Huber and 30 hours by Mann)
drafting the “nominal” written discovery in this action was
unreasonable; and (6) 38 hours spent by Freund Legal and Quinn
Emanuel on a “meritless” motion to vacate and an additional
30 hours spent on the 10-page reply in support of that motion
were excessive and unreasonable. NHP also claimed Freund
lacked personal knowledge of the work of his junior colleagues.
e. Premiere’s reply
In reply Huber attested he and Freund collaborated
throughout the case and Freund, as the billing partner, was
informed of all work he and Jugpreet Mann performed on behalf
of Premiere. Like Freund, Huber averred that none of the
13
work/hours summaries submitted in support of the motion
reflected duplicative billing, but rather represented a reasonable
division of labor among attorneys in a case where their client’s
professional livelihood was at stake. Huber also explained many
of the discovery-related motions NHP challenged in its opposition
papers took the form of ex parte applications in this unlawful
detainer action. He attached copies of a draft motion to compel
King’s deposition and two ex parte applications to continue trial
based on NHP’s repeated failures to respond to discovery
requests and produce King for his deposition. Huber also
asserted that all entries in the summaries reflected work
performed in the unlawful detainer action and not in any other
action.
f. The trial court’s ruling
The trial court granted Premiere’s request for attorney fees
in full. The court stated it had “reviewed and considered the
declarations of counsel concerning the need for and descriptions
of the work they did and the court’s view of what was a
reasonable number of hours that should have been spent.
[Citation.] In this regard, the Court notes that . . . this was a
hard-fought, heavily litigated dispute over commercial properties
involving, among other things, a novel theory of possession in the
unlawful detainer context and witnesses with apparent
credibility issues. That skillful plaintiff’s counsel managed to
persuade the trial court to make findings for which the reviewing
court found no substantial evidence underscores the necessity for
defendants to have expended the number of hours they did at
trial with multiple experienced attorneys. As a corollary,
defendants’ success in convincing the Court of Appeal to reverse
the trier of fact under the very deferential substantial evidence
14
standard also suggests the reasonableness of the hours spent by
highly skilled defense counsel to obtain the relatively uncommon
post-trial result that they did.” The court expressly found the
hourly rates of all attorneys reasonable and consistent with the
prevailing rates for similar counsel in the relevant legal market.
The court also rejected all of NHP’s specific objections
relating to alleged duplicative or unnecessary work, finding the
work performed and hours spent reasonable in light of the
“existential threat” the action posed to Premiere’s business. The
court credited counsel’s assertions the work identified was
performed in the instant action and not in connection with the
related lawsuits between the parties. Although the court
described Freund Legal’s work/hours summaries as “lack[ing] a
certain level of detail concerning when and how much time was
spent on any particular litigation activity,” it found the
summaries, along with the accompanying declarations, legally
adequate to support the motion and NHP’s objections to them
9
unpersuasive.
NHP filed a timely notice of appeal from the court’s
postjudgment order.
9
The court rejected Dr. Marsh’s request for $171,246 in
restitution for lost investment Dr. Marsh claimed to have
suffered after he was forced to borrow against his life insurance
policies to collateralize the appeal bond. It also awarded
Premiere $7,513.73 in litigation-related expenses, $8,095.05 in
trial court costs and $30,425 in appellate costs and prejudgment
interest. Neither the restitution order nor any of the cost awards
is at issue in this appeal.
15
DISCUSSION
1. Governing Law and Standard of Review
California follows what is commonly referred to as the
American rule, requiring each party to a lawsuit to bear its own
attorney fees unless recovery of attorney fees is expressly
authorized by statute or contract. (Mountain Air Enterprises,
LLC v. Sundowner Towers, LLC (2017) 3 Cal.5th 744, 751;
Tract 19051 Homeowners Assn. v. Kemp (2015) 60 Cal.4th 1135,
1142; see § 1021 [“[e]xcept 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”].)
A party seeking attorney fees pursuant to a fee shifting
provision in a contract must demonstrate the fees incurred were
reasonable. (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084,
1095 (PLCM Group); see Civ. Code, § 1717.) That reasonableness
determination begins with “the lodestar,” “the number of hours
reasonably expended multiplied by the reasonable hourly rate.”
(PLCM Group, at pp. 1094-1095.) “‘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, at p. 1096.) “‘“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.”’” (Morris v.
Hyundai Motor America (2019) 41 Cal.App.5th 24, 38.) “‘The
evidence should allow the court to consider whether the case was
overstaffed, how much time the attorneys spent on particular
16
claims, and whether the hours were reasonably expended.’”
(Concepcion v. Amscan Holdings, Inc. (2014) 223 Cal.App.4th
1309, 1320 (Concepcion); see Ketchum v. Moses (2001) 24 Cal.4th
1122, 1132 [trial court must “carefully review attorney
documentation of hours expended; ‘padding’ in the form of
inefficient or duplicative efforts is not subject to compensation”].)
When, as here, a contract/lease expressly authorizes the
prevailing party in a lawsuit to recover attorney fees and the only
dispute is the amount awarded, we review the court’s decision for
abuse of discretion. (See PLCM Group, supra, 22 Cal.4th at
p. 1095 [trial court has “‘wide latitude in determining the amount
of an award of attorney’s fees’”; “an appellate court will interfere
with a determination of reasonable attorney fees ‘only where
there has been a manifest abuse of discretion’”]; Mikhaeilpoor v.
BMW of North America, LLC (2020) 48 Cal.App.5th 240, 246
[“‘“[t]he only proper basis of reversal of the amount of an attorney
fees award is if the amount awarded is so large or small that it
shocks the conscience and suggests that passion or prejudice
influenced the determination”’”].)
2. Adequacy of the Documentation for the Fees Requested
NHP contends Freund’s declaration and accompanying
“three-page” summary of hours and work performed by all three
attorneys, presented in “block form” of “five hours increments,”
were too brief and too general to justify the nearly $500,000 in
attorney fees incurred by Freund Legal on behalf of Premiere.
The trial court rejected that argument, correctly observing that
detailed time or billing records are not required under California
law. (See Syers Properties III, Inc. v. Rankin (2014)
226 Cal.App.4th 691, 698-699 (Syers) [“[i]t is well established
that ‘California courts do not require detailed time records, and
17
trial courts have discretion to award fees based on declarations of
counsel describing the work they have done and the court’s own
view of the number of hours reasonably spent’”]; Concepcion,
supra, 223 Cal.App.4th at p. 1324 [same]; see also Mardirossian
& Associates, Inc. v. Ersoff (2007) 153 Cal.App.4th 257, 269 [“‘[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’”].)
Contrary to NHP’s contention, listing by broad category the
time expended by each attorney, as done in the declarations and
summaries Premiere submitted, has been upheld and even
recommended, as “‘an especially helpful compromise between
reporting hours in the aggregate (which is easy to review, but
lacks informative detail) and generating a complete line-by-line
billing report (which offers great detail, but tends to obscure the
forest for the trees).’” (Syers, supra, 226 Cal.App.4th at p. 700.)
NHP asserts the work/time summaries approved in Syers
were acceptable in that case because the judge ruling on the
attorney fee motion had presided over the trial and was
sufficiently familiar with the case to determine whether the
hours documented were reasonable. (See Syers, supra,
226 Cal.App.4th at p. 700 [“the trial judge presided over the
entire matter and was well able to evaluate whether the time
expended by counsel in this case, given its complexity and other
factors, was reasonable”].) Here, in contrast, the trial judge was
new to the case and lacked any particular insight into the time
counsel expended and whether it was reasonable. In these
circumstances, NHP asserts, something more than the “block
billing” summaries submitted by Premiere was required to enable
the court to exercise its informed discretion.
18
While the deference afforded to the trial court’s
determination on attorney fee matters is undoubtedly rooted in
the insight a trial judge gains in presiding over the case
(see PLCM Group, supra, 22 Cal.4th at p. 1095 [“‘[t]he
“experienced trial judge is the best judge of the value of
professional services rendered in his court”’”]; Mikhaeilpoor v.
BMW of North America, LLC, supra, 48 Cal.App.5th at p. 246
[same]), there was nothing inherently improper about the
breakdown by categories of work and accompanying attorney
declarations Premiere provided to support its motion.
(Syers, supra, 226 Cal.App.4th at p. 699; see Heritage Pacific
Financial, LLC v. Monroy (2013) 215 Cal.App.4th 972, 1010
[“[t]rial courts retain discretion to penalize block billing when the
practice prevents them from discerning which tasks are
compensable and which are not[;] [t]he trial court identified no
such problem here”].) In fact, more detailed time records were
unlikely to have provided the court with any greater insight.
(See generally PLCM Group, at p. 1098 [“‘“[w]e do not want ‘a
[trial] court, in setting an attorney’s fee, [to] become enmeshed in
a meticulous analysis of every detailed facet of the professional
representation’”’”]; Reynolds v. Ford Motor Co. (2020)
47 Cal.App.5th 1105, 1117 [same].) Even though he did not
preside over trial, the experienced trial judge was well-equipped
to consider and evaluate Premiere’s fee request based on the
evidence—counsel’s declarations and descriptions of work—
provided. No abuse of discretion occurred.
3. Use of an Unmodified Lodestar Figure
NHP asserts the only significant issue in this unlawful
detainer action was Premiere’s continued possession of suite 325.
“[T]he notion that this single novel issue” generated nearly
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$1 million in attorney fees, NHP argues, is “absurd.” According
to NHP, we need only consider the large disparity between the
$90,000 in fees NHP initially claimed as the prevailing party in
the action and the nearly $375,000 in fees allegedly incurred by
Freund Legal during prejudgment proceedings to understand the
excessive nature of the fee request and award. NHP also
observes that, while Premiere’s counsel were highly experienced
commercial litigators, none offered any expertise in unlawful
detainer to warrant the high rates ($700 per hour, and $625 per
hour) Freund Legal charged. Moreover, Premiere could have
avoided such an exorbitant “legal spend” simply by satisfying
NHP’s demand for $373,000 in unpaid rent, thereby avoiding
eviction, and disputing the amount in the related breach of
contract/tort lawsuits.
The trial court considered and rejected each of these
arguments, describing the action as a “hard-fought,” atypical
unlawful detainer action that ultimately resulted in reversal of a
$1,141,074 judgment. The court credited Dr. Marsh’s
explanation the action presented a life-or-death threat to his
business and Freund’s, Shelton’s and Huber’s declarations that
counsel’s work was warranted for a number of reasons, including,
as Huber observed, NHP’s repeated failures to respond to written
discovery and deposition notices to produce the person most
knowledgeable (PMK) at NHP. The court also rejected the notion
the fees incurred shocked the conscience simply because they
were disproportionate to the fees NHP had initially recovered.
While it may be helpful to consider such a disparity in
determining whether fees are reasonable (see, e.g., Kevin Q. v.
Lauren W. (2011) 195 Cal.App.4th 633, 645 [trial court did not
abuse discretion in considering “the disparity between the fees
20
charged by Kevin’s counsel and those charged by Opri” in
determining whether fees requested were reasonable]), the court
found the comparison unpersuasive, given that the stakes in the
proceeding were far greater for Premiere than for NHP. That
determination was well within the court’s discretion.
(Cf. Concepcion, supra, 223 Cal.App.4th at p. 1321 [“the attorney
fee award need not bear any specific relationship to the dollar
amount of the recovery”]; Taylor v. Nabors Drilling USA, LP
(2014) 222 Cal.App.4th 1228, 1251 [same].)
Turning to the appeal and post-appellate proceedings, NHP
challenges Premiere’s justification for continuing its aggressive
defense, emphasizing Premiere had abandoned the premises
while the matter was pending on appeal, undermining any notion
that the unlawful detainer action continued to pose a significant
threat. As Dr. Marsh explained, however, the more than
$1 million judgment entered against Premiere remained
regardless of Premiere’s abandonment of the premises during the
appeal. That alone, the trial court reasonably found, justified
Premiere’s vigorous postjudgment efforts.
The court determined the hourly rates of all counsel were
consistent with prevailing rates for similar counsel in the
relevant legal market. NHP disagrees, but other than noting its
counsel’s lower hourly rate has not demonstrated the court’s
application of an unmodified lodestar based on the evidence
Premiere presented was an abuse of its broad discretion.
4. Fees for Prelitigation Work
NHP argues Freund Legal billed 25 hours on “prelitigation”
matters beginning, according to Freund’s declaration, in
September 2015. Because NHP did not serve the notices to quit
or pay rent until November 2015, it posits that much of the
21
prelitigation work Freund and Huber performed must have
related to preparing Premiere’s own action against NHP, also
filed in November 2015, and not defending the unlawful detainer
action. In response, Huber attested the prelitigation work was
necessitated by NHP’s “harassing” conduct “months before” NHP
served its notices to quit or pay rent. Both Huber and Freund
declared under penalty of perjury, and the court found, that none
of the items described in the parties’ summaries related to fees
and costs incurred in cases other than the unlawful detainer
action. NHP’s speculation falls far short of demonstrating an
abuse of discretion.
NHP similarly argues Premiere must have billed for
discovery that occurred in connection with the Providence action
and not the case at bar. To support its position, NHP observes its
counsel, Lloyd Mann, declared he had spent only 9.3 hours on
discovery in this unlawful detainer matter, compared to
Premiere’s 77 hours. According to NHP, that significant
difference can only be explained if the discovery related to issues
other than possession—matters that were deemed irrelevant and
excluded at trial after the court granted NHP’s motion in limine.
NHP also characterizes the discovery by Premiere as minimal,
existing mostly, albeit not exclusively, of form discovery requests
10
and a single deposition.
At the threshold, NHP did not identify the excluded
evidence or connect any of the fees awarded to it, nor would the
10
Premiere described the written discovery it propounded as
one set of form interrogatories, one set of special interrogatories,
one set of requests for admission, two sets of requests for
production of documents, and a notice of deposition of the PMK at
NHP with accompanying document request.
22
court’s ruling excluding evidence obtained in the unlawful
detainer action necessarily compel reversal of those fees.
(See Wysinger v. Automobile Club of Southern California (2007)
157 Cal.App.4th 413, 431 [“‘[t]o reduce the attorneys’ fees of a
successful party [simply] because he did not prevail on all his
arguments, makes it the attorney, and not the defendant, who
pays the costs of enforcing’ the plaintiff’s rights”].) In any event,
Freund and Huber both declared that all work (including
discovery) identified in the summaries was performed in the
unlawful detainer action and not in any of the related cases.
Faced with conflicting declarations as to what discovery was
necessary in this action, the trial court credited Huber and
Freund over Mann. That determination was neither arbitrary
nor irrational in a case in which the trial court found Premiere
had properly engaged in an aggressive defense based on what
was at stake for it in the litigation.
5. Fees for “Phantom” Motions or Duplicative Work
In Premiere’s motion for attorney fees, Freund stated he
spent five hours on “pleadings relating to discovery, including the
preparation of motion to compel King deposition and produce
documents; revise and edit motion and reply papers,” and Huber
spent 17 hours on “pleadings relating to discovery,” including
“preparation of motion to compel King deposition and produce
documents; attend hearing re same; review responses.” Yet, as
NHP observed in its opposition papers, no motion to compel
King’s deposition was ever filed. Accordingly, there was no
response by NHP to be reviewed, no reply to be filed and no
hearing to attend relating to that motion. To the extent those
entries referred to the ex parte applications to continue the trial,
which were supported by claims of NHP’s failures to respond to
23
discovery and produce King for deposition, NHP argued, those
fees were already identified and recovered in the “litigation”
category as motions to continue the trial. Accordingly, NHP
asserted, fees for a reply and hearing in connection with a motion
to compel were duplicative.
On appeal, NHP argues the trial court missed the point and
abused its discretion when it concluded 22 hours of work
($14,125) attributed to discovery, including compelling King’s
deposition, were “reasonable and justified under the
circumstances even if discovery motions were never filed.” Either
there were no reply papers and no attendance at hearings
concerning the unfiled motion to compel, thus those entries were
false; or the entries referred to the ex parte applications and were
duplicative of other entries for which fees were awarded
Responding to NHP’s argument in the trial court, Huber
explained, “The work on discovery issues related to the landlord’s
wholesale refusal to provide timely and complete discovery
responses, to produce documents, and to proffer a prepared PMK
witness, as well as Premiere’s efforts to address the landlord’s
shortcomings related to the same. These discovery issues were
addressed in the two ex parte applications and the draft motion
to compel. Those same pleadings and hearings also addressed
non-discovery issues. The billings [summaries] submitted by
Mr. Freund accurately parse the discovery components of my
firm’s work from the non-discovery components.”
NHP’s argument is persuasive. Huber’s response—that the
ex parte applications encompassed both discovery and non-
discovery issues and the fees associated with each subject were
parsed to reflect the appropriate category—failed to identify
which aspects of the ex parte applications were billed as
24
discovery and which were not. (Cf. Jennings v. Palomar
Pomerado Health Systems, Inc. (2003) 114 Cal.App.4th 1108,
1120, fn. 12 [expert’s opinion “supported only by a statement
telling the jury (in essence), ‘Trust me, I’m an expert and it
makes sense to me’” was wholly conclusory; court abused its
discretion in admitting the expert testimony].) This material
omission was fatal to this item of Premiere’s request. It was
Premiere’s burden to demonstrate fees for the challenged
22 hours were incurred, and Huber’s conclusory explanation for
these seemingly duplicative entries, without more, fell far short.
Premiere failed to carry that burden, and the court abused its
discretion in ruling otherwise. (See Cassim v. Allstate Ins. Co.
(2004) 33 Cal.4th 780, 805, 813 [court abused its discretion by
awarding an amount of attorney fees not supported by
substantial evidence]; see generally Ayala v. Antelope Valley
Newspapers, Inc. (2014) 59 Cal.4th 522, 530 [court abuses
discretion when it makes finding not supported by substantial
evidence].)
6. Additional Prelitigation Fees
NHP contends the court awarded fees for certain
prelitigation work Premiere had expressly disclaimed. In the
prelitigation category of Premiere’s fee summary, Freund
identified 10 hours for “[f]act investigation and general
conferences and correspondence with clients; confer with
M. Marsh and Mark Anten and other Premiere employees and
personnel; review documents regarding property and space at
issue; consult various healthcare specialists.” In his supporting
declaration Freund explained Premiere was not seeking fees
incurred for consultation with healthcare experts despite
including that entry in the prelitigation summary: “The leased
25
property was also full of expensive and delicate medical
equipment and a blood lab that could easily be contaminated if
not handled properly. While no experts were presented at trial,
my firm repeatedly consulted healthcare experts to assist in
formulating responses to the hyper-aggressive tactics of the
landlord plaintiff. The fees for consulting these healthcare
professionals are not being sought by Premiere.”
NHP contends the only reasonable interpretation from the
court’s order awarding the full amount of fees for this category is
that fees were awarded for consultation with health care experts
notwithstanding Freund’s disclaimer. However, when read in
conjunction with Freund’s declaration, it is just as reasonable to
conclude Freund had excluded from the hours being claimed time
spent consulting healthcare experts. There is nothing inherently
improbable about the other listed activities requiring 10 hours of
time. Accordingly, indulging every inference in favor of the
court’s order, as we must, there is no basis to find the court
awarded fees for matters Freund had expressly disclaimed.
NHP further contends Freund’s 10 hours for prelitigation
work/investigation, client correspondence, and reviewing
property documents were duplicative of his litigation entry for
“[d]evelopment of case analysis, including review pleadings,
supporting documents, further consultation with clients, [and]
formulat[ion] of case strategy.” The court rejected this assertion,
and so must we. An unsupported assertion that time billed is
duplicative, without more, is insufficient to demonstrate the
billing was unreasonable, let alone that the court’s order
awarding the fees requested was an abuse of its broad discretion.
(See Premiere Medical Management Systems, Inc. v. California
Ins. Guarantee Assn. (2008) 163 Cal.App.4th 550, 564 [“[g]eneral
26
arguments that fees claimed are excessive, duplicative, or
unrelated do not suffice”].)
7. Fees Relating to Settlement
NHP contends the court unreasonably awarded Premiere
$25,812.50 in attorney fees for 47.5 hours purportedly spent on
settlement and mediation work relating to “a single settlement
11
conference that lasted less than six hours.” In support of this
contention, Lloyd Mann stated in his declaration that there were
no serious settlement discussions between the parties other than
the mediation that would justify the hours spent.
Although, as NHP observes, the court’s written ruling did
not expressly address this argument, we presume the court
impliedly rejected it. (See Ketchum v. Moses, supra, 24 Cal.4th at
p. 1140 [“‘“[a]ll intendments and presumptions are indulged to
support [the judgment] on matters as to which the record is
silent, and error must be affirmatively shown”’”]; Bui v. Nguyen
(2014) 230 Cal.App.4th 1357, 1377 [in reviewing attorney fee
award, appellate court must consider both the express and
implied findings of trial court].) Accordingly, our task is simply
to determine whether that rejection was an abuse of the court’s
broad discretion. Were the 47.5 hours isolated to attendance at
the mediation, as NHP has characterized, we might agree those
11
According to the evidence submitted in support of
Premiere’s motion, Freund spent 15 hours on “[s]ettlement
discussions, draft and review mediation brief and attend
mediation”; Huber spent 20 hours on “[s]ettlement discussions
throughout the case with email, telephone and written
communications, draft mediation brief and attend mediation.”
Mann spent 12.5 hours for “[s]ettlement discussions and
mediation.”
27
hours were excessive. But Premiere identified much more,
including correspondence, drafting of a mediation brief and
preparation for a mediation to resolve the case. The trial court
impliedly found the total time spent by three attorneys working
on the case reasonable in light of the high stakes for Premiere in
the litigation. That conclusion was well within the court’s
discretion.
8. Fees for the Motion To Vacate
NHP argues the court abused its discretion in awarding
$82,807 in attorney fees for “more than 100” hours Premiere
spent on a “fruitless motion to vacate” the judgment based on
King’s alleged perjury at trial, which the trial court denied and
we did not reach on appeal. However, in the trial court NHP
argued only that 68 hours spent drafting the motion and reply
brief were excessive. The argument no fees should have been
awarded for the motion has been forfeited. (Doers v. Golden Gate
Bridge etc. Dist. (1979) 23 Cal.3d 189, 184-185, fn. 1 [it is
fundamental that a reviewing court will ordinarily not consider
claims made for the first time on appeal that could have been, but
were not, presented to the trial court]; Perez v. Grajales (2008)
169 Cal.App.4th 580, 591-592 [“‘[a]ppellate courts are loath to
reverse a judgment on grounds that the opposing party did not
have an opportunity to argue and the trial court did not have an
opportunity to consider’”].)
On appeal NHP does not directly challenge the number of
hours attributed to the moving papers and reply, as it did in the
trial court. Rather, without citation to evidence or additional
argument, NHP asserts “[t]he resources spent on this meritless
issue” of King’s alleged perjury at trial, the subject of the motion
to vacate, “were not reasonable.” This unsupported contention,
28
without more, is insufficient to demonstrate the court abused its
discretion. (Raining Data Corp. v. Barrenechea (2009)
175 Cal.App.4th 1363, 1375 [“[a]n ‘assertion [that] is
unaccompanied by any citation to the record or any explanation
of which fees were unreasonable or duplicative’ is insufficient to
disturb the trial court’s discretionary award of attorney fees”];
Tuchscher Development Enterprises, Inc. v. San Diego Unified
Port Dist. (2003) 106 Cal.App.4th 1219, 1248 [same].)
Finally, NHP’s general suggestion the court abused its
discretion in awarding Premiere fees in connection with a motion
it lost in the trial court is also wrong on its merits. (See Wysinger
v. Automobile Club of Southern California, supra,
157 Cal.App.4th at p. 431; City of Sacramento v. Drew (1989)
207 Cal.App.3d 1287, 1303 [“‘Litigants in good faith may raise
alternative legal grounds for a desired outcome, and the court’s
rejection of or failure to reach certain grounds is not a sufficient
reason for reducing a fee’”].)
DISPOSITION
The postjudgment order is modified by striking $14,125
from the amount awarded and is affirmed as modified. Premiere
Medical Center of Burbank, Inc. and Dr. Marsh are to recover
their costs on appeal.
PERLUSS, P. J.
We concur:
SEGAL, J. FEUER, J.
29