Penn Air Control Inc v. Bilbro Construction Company, Inc. et al

Filing 340

ORDER Granting In Part and Denying In Part 289 Motion for Attorney Fees. Signed by Judge William Q. Hayes on 09/18/2019. (mme)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10
11
12
13
14
15

UNITED STATES OF AMERICA for the
Use and Benefit of PENN AIR
CONTROL INC., a California
corporation,

Case No.: 16-cv-003-WQH-NLS
ORDER

v.

18

BILBRO CONSTRUCTION COMPANY,
INC., a California corporation; and
INTERNATIONAL FIDELITY
INSURANCE COMPANY, a New Jersey
corporation,

19

Defendants.

16
17

20

And Related Counterclaims.

21
22
23
24
25
26
27
28

HAYES, Judge:
The matters before the Court are 1) Alpha Mechanical, Inc.’s (“Alpha”) Motion for
Attorneys’ Fees, Costs and Pre-Judgment Interest (ECF No. 289); 2) Shadpour Consulting
Engineer, Inc.’s (“SCE”) Motion for Attorneys’ Fees and Costs (ECF No. 292); and 3)
Alpha’s Motion to Re-Tax Costs (ECF No. 315).
///
///
1
16-cv-003-WQH-NLS

1

I.

BACKGROUND
The background to this action is described in detail in the Court’s Order on Bilbro

2
3

Construction Company, Inc.’s (“Bilbro”) Motion for New Trial. (ECF No. 335).

4

II.

5
6

ALPHA’S MOTION FOR ATTORNEYS’ FEES, COSTS AND PREJUDGMENT INTEREST
A. Contentions

7

Alpha contends that it is the prevailing party in this litigation and entitled to

8

attorneys’ fees and costs pursuant to Article XXXV of the Subcontract between Alpha and

9

Bilbro. Alpha requests an award of “(1) at least $720,182 in attorneys’ fees actually and

10

reasonably incurred in having to defend itself and to prosecute its claims in this litigation;

11

(2) $70,325 in costs incurred by Alpha in having to retain experts in this litigation; and (3)

12

$107,051.45 in pre-judgment interest on the amounts withheld by Bilbro starting from

13

April 2015.” (ECF No. 289-1 at 6-7). Alpha’s attorneys’ fee request includes $49,709.50

14

in work performed prior to being served with Bilbro’s Counterclaim, which Alpha asserts

15

is “related to the enforcement of the Subcontract and preparation of a complaint by Alpha

16

against Bilbro.” Id. at 8-9. Alpha asserts that its billing rates are “well within those

17

customarily charged by experienced litigation counsel within the Southern California legal

18

community” and that it “took reasonable measures to staff the case, using one associate

19

and one paralegal at a time with no overlap, where possible, to minimize cost . . . .” Id. at

20

14. Alpha states that it is only requesting fees already billed and paid by Alpha to its law

21

firm, Solomon, Ward, Seidenwurm and Smith, LLP (“SWSS”). (Angert Decl., ECF No.

22

289-2 ¶ 22).

23

Bilbro contends that Alpha is not entitled to recover attorneys’ fees for time spent

24

prosecuting claims against litigants other than Bilbro or for Alpha’s claim for “additional

25

work” it performed implementing Sparling’s noise mitigation suggestions. (ECF No. 311

26

at 6-7). Bilbro also contends that Alpha’s fees should be reduced by 40% because Alpha

27

overstaffed the matter and charges rates not commensurate with the San Diego legal

28

community. Bilbro contends that Alpha is not entitled to expert fees because the experts
2
16-cv-003-WQH-NLS

1

were not ordered by the Court. Finally, Bilbro contends that pre-judgment interest is only

2

appropriate on the $323,352.00 that Bilbro withheld from Alpha at a simple interest rate

3

because the award for additional work was uncertain. Id. at 8, 19.

4

B. Legal Standard

5

Under Federal Rule of Civil Procedure 54(d)(2)(B)(ii), a motion for attorneys’ fees

6

must “specify the judgment and the statute, rule, or other grounds entitling the movant to

7

the award.” State law governs the interpretation and application of a provision in a contract

8

that permits an award of attorney’s fees. Resolution Trust Corp. v. Midwest Fed. Sav. Bank

9

of Minot, 36 F.3d 785, 800 (9th Cir. 1993).

10

Section 1717 of the California Civil Code provides:

11

In any action on a contract, where the contract specifically provides that
attorney’s fees and costs, which are incurred to enforce that contract, shall be
awarded either to one of the parties or to the prevailing party, then the party
who is determined to be the party prevailing on the contract, whether he or
she is the party specified in the contract or not, shall be entitled to reasonable
attorney’s fees in addition to other costs.

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

Cal. Civ. Code § 1717(a). “Section 1717 is calculated to provide mutuality of remedy and
eliminate one-sided attorney fees clauses which would otherwise be used to force
settlements of unmeritorious claims.” Lafarge Conseils Et Etudes, S.A. v. Kaiser Cement
& Gypsum Corp., 791 F.2d 1334, 1339 n.15 (9th Cir. 1986) (citing Berge v. Int’l Harvester
Co., 190 Cal. Rptr. 815, 825 (Ct. App. 1983)).
Under California law, the trial court has discretion to determine what constitutes
reasonable attorneys’ fees. PLCM Grp. v. Drexler, 997 P.2d 511, 519 (Cal. 2000). “[T]he
fee setting inquiry in California ordinarily begins with the ‘lodestar,’ i.e., the number of
hours reasonably expended multiplied by the reasonable hourly rate.” Ctr. for Biological
Diversity v. Cty. of San Bernardino, 115 Cal. Rptr. 3d 762, 772-73 (Ct. App. 2010)
(quotation omitted). “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.” Id. (quotation omitted). “Generally, the reasonable

3
16-cv-003-WQH-NLS

1

hourly rate used for the lodestar calculation is that prevailing in the community for similar

2

work.” Id. at 772. After determining the reasonable hourly rate for comparable legal

3

services in the community, courts may adjust that amount based on the following factors:

4

“(1) the novelty and difficulty of the questions involved, (2) the skill displayed in

5

presenting them, (3) the extent to which the nature of the litigation precluded other

6

employment by the attorneys, (4) the contingent nature of the fee award.” Ketchum v.

7

Moses, 17 P.3d 735, 741 (Cal. 2001). “[T]he purpose of such adjustment is to fix a fee at

8

the fair market value for the particular action.” Id.

9

C. Discussion

10

The jury in this matter found in favor of Alpha and against Bilbro on the parties’

11

competing breach of contract claims. (ECF No. 266). The jury awarded Alpha more than a

12

million dollars in damages for breach of contract. Id. Alpha was the prevailing party in this

13

litigation.

14

Article XXXV of the Subcontract between Bilbro and Alpha provides:

15

ATTORNEY FEES: Contractor shall have the right to collect from
Subcontractor reasonable attorney fees and other costs of enforcing any
provision or obligation arising under this agreement. Subcontractor expressly
agrees to payment of such reasonable attorney fees and costs.

16
17
18
19

(Exh. C, ECF No. 313-5 at 23). Article XXXV is an attorney’s fee provision, and under
the mutuality provisions of section 1717(a) of the California Civil Code, Alpha is entitled

20

to reasonable attorneys’ fees and costs. See U.S. for Use & Benefit of Reed v. Callahan,

21

884 F.2d 1180, 1185 (9th Cir. 1989) (“In this case, the fact that the subcontract expressly

22

limits the availability of fees to the contractor is of no effect.”). Bilbro does not contest the

23

award of attorneys’ fees to Alpha for its successful defense against Bilbro’s breach of

24
25

contract claim. Bilbro also does not contest the award to the extent Alpha recovered for
monies due under the original contract. Bilbro asserts that Alpha failed to establish that it

26

was entitled to damages for the “additional work” it performed on the project and asserts

27

that it would be inequitable to award Alpha attorneys’ fees for the prosecution of this claim.

28
4
16-cv-003-WQH-NLS

1

(ECF No. 311 at 10). The Court does not find merit in Bilbro’s contention. Alpha was the

2

prevailing party at trial on the breach of contract claim for additional work under the

3

Subcontract and is entitled to attorneys’ fees. See Milman v. Shukhat, 27 Cal. Rptr. 4th 526,

4

529-30 (Ct. App. 1994) (explaining that as long as an action “involves a contract,” and one

5

of the parties would be entitled to recover attorneys’ fees under the contract, attorneys’ fees

6

are recoverable even if the court determines no contract existed). Alpha is entitled to

7

attorneys’ fees for its defense against Bilbro’s breach of contract claim and for its breach

8

of contract claim against Bilbro, because Alpha’s claim against Bilbro arose under the

9

Subcontract.
i. Attorneys’ Fees and Costs

10
11

As support for their requested attorneys’ fees, Alpha’s lead attorney, Mark Angert,

12

submitted a declaration listing the number of hours worked by individual timekeepers and

13

the amount billed for those hours. (Angert Decl., ECF No. 289-2 ¶ 24). Over the nearly

14

four-year duration of this litigation, Alpha has been primarily represented by attorneys

15

Mark Angert, Richard McCarthy, and Andrew C. Myers, with paralegal support. Alpha

16

requests the following fees:
Years’ Experience Billing Rate Hours

17

Name

18

Richard E. McCarthy

36

2015 - $425
2016 - $440
2017 - $450
2018 - $465
2019 - $475

2
0
84.5
64.3
0

$850
$0
$38,025
$29,899.5
$0

Mark Angert

14

2015 - $310
2016 - $330
2017 - $350
2018 - $375
2019 - $395

195.8
646.3
308.5
280.6
207.4

$60,698
$213,279
$107,975
$105,225
$81,923

Edward J. O’Connor

9

2016 - $285 8
2017 - $300 18

$2,280
$5,400

Peter J. Caltagirone

9

2015 - $255 6.7

$1,708.5

19
20
21
22
23
24
25
26
27

Amount Billed

28
5
16-cv-003-WQH-NLS

1

Mikaela L. Weber

6

2016 -$255 8.6

$2,193

2

Paul M. Huston

5

2016 - $250 14.3
2017 - $265 37.3

$3,575
$9,884.5

Andrew C. Myers

8

2018 - $295 5.3
2019 - $305 103

$1,563.5
$31,415

Ray M. Bernal (paralegal)

9

2015 - $125
2016 - $145
2017 - $150
2018 - $155

$275
$1,943
$6,615
$589

Justin Jenness (paralegal)

6

2016 - $105 2.1
2018 - $140 8.4
2019 - $145 96.4

3
4
5
6
7
8
9
10

2.2
13.4
44.1
3.8

$220.5
$1,176
$13,978

11
12

(Angert Decl., ECF No. 289-2 ¶ 24).

13

Alpha’s billing records reflect rates of $425-475 for Richard E. McCarty, a partner

14

with more than 30 years’ experience; $310-395 for Mark Angert, a partner more than 10

15

years’ experience; $285-$300 for Edward J. O’Connor, an associate with 9 years’

16

experience; $295-$305 for Andrew C. Myers, an associate with 8 years’ experience; $255

17

for Peter J. Caltagirone, an associate with 9 years’ experience, and Mikaela L. Weber, an

18

associate with 6 years’ experience; and $250-$265 for Paul M. Huston, an associate with

19

5 years’ experience. (Exh. 2, ECF No. 289-5). Alpha’s billing records reflect rates of $125-

20

$155 for Ray M. Bernal, a paralegal with 9 years’ experience; and $105-$145 for Justin

21

Jenness, a paralegal with 6 years’ experience. Id.

22

1. Hours Reasonably Expended

23

Alpha is entitled to “an award of fees for all time reasonably expended in pursuit of

24

the ultimate result achieved in the same matter that an attorney traditionally is compensated

25

by a fee-paying client for all time reasonably expended on a matter.” Hensley v. Eckerhart,

26

461 U.S. 424, 431 (1983) (quotation omitted). Alpha contends the attorneys’ hours are

27

reasonable because the issues in this case were complex; Alpha asserts that “it took three

28

and a half years of getting the case to where it could be simplified to just [the breach of
6
16-cv-003-WQH-NLS

1

contract] claim, including two private mediations, two settlement conferences and

2

continuing settlement negotiations thereafter.” (ECF No. 289-1 at 18). In addition, Alpha

3

contends that their attorneys “put in significant time noted as a ‘NC’ or ‘No Charge,’” and

4

“does not include $21,015 in write offs and deductions for services rendered but discounted

5

to avoid any work that may appear duplicative.” Id. at 20.

6

Bilbro contends that Alpha’s staffing of nine attorneys on this matter was

7

unreasonable. However, billing records show that two attorneys, Peter J. Caltagirone and

8

Mikaela L. Weber only billed during a single year. Three more attorneys, Andrew C.

9

Myers, Paul M. Huston, and Edward J. O’Connor, only billed during two different years.

10

This litigation has lasted more than three years. Only Mark Angert represented Alpha at

11

the inception of this matter in 2015 through trial in 2019. The billing records do not show

12

that Alpha staffed an excessive number of attorneys on this matter at any one point in time.

13

In over three years’ of billing records, Bilbro only identifies a few entries it claims

14

are duplicative or excessive and lacking in detail. (ECF No. 311 at 17-19). Alpha’s

15

attorneys were “not required to record in great detail how each minute of time was

16

expended.” Fischer v. SJB-P.D. Inc., 214 F.3d 1115, 1121 (9th Cir. 2000) (citing Hensley,

17

461 U.S. at 433). Alpha met its burden by “listing his hours and identify[ing] the general

18

subject matter of his time expenditures.” Fischer, 214 F.3d at 1121 (quotation omitted).

19

Accordingly, the hours expended by SWSS attorneys were reasonable.

20

The billing records show that the time the SWSS attorneys billed prior to October

21

2015, as well as the time spent billing on items related to Alpha’s indemnity and negligence

22

claims, was spent “in pursuit of the ultimate result” achieved in this case (id.; ECF No.

23

289-5 at 2-13): Alpha’s prevailing at trial on Bilbro’s claim against Alpha for breach of

24

contract as well as Alpha’s claim against Bilbro. See Reynolds Metals Co. v. Alperson, 599

25

P. 2d 83, 85 (Cal. 1979) (“Attorney’s fees need not be apportioned when incurred for

26

representation on an issue common to both a cause of action in which fees are proper and

27

on in which they are not allowed.”). Accordingly, Alpha is entitled to fees for the hours its

28
7
16-cv-003-WQH-NLS

1

attorneys worked, including the hours worked in 2015 before a claim was filed against

2

Alpha.

3

2. Reasonable Rate

4

In determining a reasonable rate for attorneys’ fees, “the burden is on the fee

5

applicant to produce satisfactory evidence—in addition to the attorney’s own affidavits—

6

that the requested rates are in line with those prevailing in the community for similar

7

services by lawyers of reasonably comparable skill, experience, and reputation.” Blum v.

8

Stenson, 465 U.S. 886, 892 n. 11 (1984). SWSS’s Chief Operating Officer, Mathiew M.

9

Vafi, submitted a declaration that states that “SWSS’ average partner and associate billing

10

rates are below or in line with the average billing rates for litigation partners and associates

11

in the Southern California market.” (Vafi Decl., ECF No. 289-8 ¶ 5). Vafi based this

12

conclusion on the “Law Firm Compensation Billing Rate and Benefits Survey,” which Vafi

13

states is “prohibited from public disclosure” and was not filed with the Court. Id. Angert

14

states in his supplemental declaration that “Mr. Lepiscopo told me he was charging Bilbro

15

over $500 per hour and upwards of $600 per hour.” (Angert Supp. Decl., ECF No. 317-1

16

¶ 3). Other than the declarations of Angert and Vafi, Alpha has not submitted any evidence

17

to show the attorneys’ rates were in line with others in the community.

18

To support their claim that SWSS’s rates are equal to or lower than comparable

19

attorneys’ in the local market, Alpha cites an ALM Legal Intelligence Survey that found

20

“the average partner billing rate at the country’s 350 largest law firms is $604 per hour

21

while the average associate billing rate is $370 and, among firms with their largest office

22

in Los Angeles, the average partner billing rate is $655 per hour while the average associate

23

rate is $401 per hour.” (ECF No. 289-1 at 16 (citing In re Am. Apparel S’holder Litig., CV

24

10-06352 MMM, 2014 U.S. Dist. LEXIS 184548 (C.D. Cal. Jul. 28, 2014)). SWSS is not

25

among the 350 largest law firms. It is “a mid-sized firm of about 35 lawyers.” (Angert

26

Decl., ECF No. 289-2 ¶ 34). Los Angeles is not located in the Southern District and is not

27

“the forum in which the district court sits” for purposes of determining a comparable local

28

billing rate. Gonzales v. City of Maywood, 729 F.3d 1196, 1205-06 (9th Cir. 2013). The
8
16-cv-003-WQH-NLS

1

Court finds that Alpha has not satisfied its burden of establishing that the requested rates

2

of its counsel are in line with the prevailing rates for similar work by comparable attorneys

3

in the Southern District of California.

4

Because Alpha has not established that its attorneys’ rates were reasonable, “[t]he

5

trial court may make its own determination of the value of the services . . . .” Drexler, 997

6

P.2d at 519; see Serrano v. Priest, 569 P.2d 1303, 1316 (Cal. 1977) (“The experienced trial

7

judge is the best judge of the value of professional services rendered in his court . . . .”).

8

Bilbro contends the Court should reduce the partners’ rates to $300 per hour and the

9

associates’ rates to $200 per hour and decline to award any paralegal fees. (ECF No. 311

10

at 7-12). (ECF No. 311 at 7-12).

11

In addition to reviewing the detailed billing records submitted by Alpha, the Court

12

is familiar with the quality of representation and amount of time devoted to this case.

13

Drexler, 997 P.2d at 519. The rates requested by Alpha are comparable to other awards in

14

this district. Based on the Court’s judgment and experience, the Court finds that the

15

requested rates are reasonable. See, e.g., Diaz v. Kubler Corp., 12cv1742-MMA-BGS,

16

2014 U.S. Dist. LEXIS 199581, at *16 (S.D. Cal. Mar. 26, 2014) (awarding $400 per hour

17

to a partner with 25 years of experience, and $250 per hour to an associate, in a simple

18

case, where the party seeking the fee award had prevailed on only one issue); De La Riva

19

Constr., Inc. v. Marcon Eng’g, Inc., 11-CV-52-MMA (DHB), 2014 U.S. Dist. LEXIS

20

26138, at * 17 (S.D. Cal. Feb. 27, 2014) (awarding $220 per hour in 2014 for an associate);

21

Nash v. Life Ins. Co. of North Am., 2011 U.S. Dist. LEXIS 67430, at *11 (S.D. Cal. Jun.

22

22, 2011) (awarding $375 per hour in 2011 for an associate where the rates were

23

uncontested). The requested rates are reasonable based on the relatively complex issues in

24

this case, the time spent litigating, and the skill displayed by Alpha’s attorneys allowing

25

them to succeed at trial. Ketchum, 17 P.3d at 741.

26

Alpha has not shown that the paralegals performed any work other than clerical

27

work. Angert states in his declaration the paralegals performed “non-legal research” and

28

“compiling evidence.” (Angert Decl., ECF No. 289-2 ¶ 21). The billing records show the
9
16-cv-003-WQH-NLS

1

paralagels performed secretarial work such as “[d]ownload[ing] documents produced by

2

Bilbro Construction, archive[ing] in repository and organiz[ing] for M. Angert review”

3

(ECF No. 289-5 at 41, Exhibit 2) and “prepar[ing] expert witness trial binders for R.

4

McCarthy” (ECF No. 289-5 at 112, Exhibit 2) As such, the paralegal fees are not

5

compensable. Missouri v. Jenkins, 491 U.S. 274, 288 (1989).

6

Alpha may not recover the $6,399 requested by Angert in his supplemental

7

declaration for preparing and filing notice of non-opposition, opposing Bilbro’s request for

8

ex parte relief to file an untimely opposition, and preparing the Reply in support of Alpha’s

9

Motion for Attorneys’ Fees. (Angert Supp. Decl., ECF No. 317-1 ¶¶ 9-12). The requested

10

fees are unreasonable. See Moreno v. City of Sacramento, 534 F.3d 1106, 1111 (9th Cir.

11

2008) (explaining that the court must avoid “a windfall to counsel”).

12

Expert Fees and Costs

13

“Fees of experts not ordered by the court” are not allowable as costs, except when

14

expressly authorized by law. Cal. Code Civ. P. § 1033.5(b)(1). Expert witness fees are not

15

recoverable under a fees and cost award pursuant to section 1717 of the California Civil

16

Code. See Ripley v. Pappadopoulos, 28 Cal. Rptr. 2d 878, 884-85 (Ct. App. 1994); Robert

17

L. Cloud & Assocs., Inc. v. Mikesell, 82 Cal. Rptr. 2d 143, 150 (Ct. App. 1999), as modified

18

(Feb. 11, 1999). In the event that “expert witness fees may be recovered under a contractual

19

provision, they must be specially pleaded and proven at trial rather than included in a

20

memorandum of costs.” Ripley, 28 Cal. Rptr. 2d at 884.

21

In this case, Alpha seeks to recover $70,325.00 in expert witness fees under the

22

Subcontract, which is made reciprocal to allow recovery by Alpha by section 1717 of the

23

California Civil Code. Alpha did not prove expert witness fees at trial, and Alpha may not

24

recover expert fees under section 1717. Accordingly, the Court declines to award Alpha

25

the requested $70,325.00 in expert witness fees.

26

i.

Pre-Judgment Interest

27

Alpha requests the Court award compound pre-judgment interest from April 2015

28

on the amount awarded for work performed under the contract and the amount awarded for
10
16-cv-003-WQH-NLS

1

additional work performed. (ECF No. 289-1 at 23). Alpha contends it is entitled to recover

2

pre-judgment interest at the post-judgment interest rate set forth in 28 U.S.C. § 1961, which

3

Alpha identifies as 2.4%. Id. If the Court awards pre-judgment interest on the amount

4

awarded for work performed under the contract, Bilbro requests it award simple interest at

5

the rate of 2.4% from January 4, 2016, the date the Complaint was filed. (ECF No. 311 at

6

20). Bilbro contends that Alpha is not entitled to interest on the amount awarded for

7

additional work performed because those damages are unliquidated, were not contemplated

8

under the original contract, and none of the parties were aware of the cost of the work until

9

Alpha secured an expert’s opinion. Id.

10

The jury awarded Alpha damages for breach of contract. Therefore, the Court applies

11

California law to determine whether Alpha is entitled to pre-judgment interest. See, e.g.,

12

Northrop Corp. v. Triad Int’l Mktg. S.A., 842 F.2d 1154, 1155 (9th Cir. 1988). Section

13

3287 of the California Civil Code mandates a court award pre-judgment interest to a

14

prevailing party in a contract action where the amount of the plaintiff’s claim can be

15

determined by established market values or by computation. Section 3287 provides:

16

A person who is entitled to recover damages certain, or capable of being made
certain by calculation, and the right to recover which is vested in the person
upon a particular day, is entitled also to recover interest thereon from that day
. . . .”

17
18
19
20
21
22
23

Cal. Civ. Code § 3287(a). Damages are deemed certain or capable of being made certain
“where there is essentially no factual dispute between the parties concerning the basis of
computation of damages if any are recoverable but where their dispute centers on the issue
of liability giving rise to the damage.” Wisper Corp. v. Cal. Commerce Bank, 57 Cal. Rptr.
2d 141, 147 (1996) (quotation omitted) (alterations in original). The test for recovery of

24

pre-judgment interest is “whether the defendant actually know[s] the amount owed or from

25

reasonably available information could the defendant have computed that amount.” Id. at

26
27

148 (quotation omitted). In a contract action where the amount of damages is uncertain,
the Court has discretion to award pre-judgment interest from a date no earlier than the date

28
11
16-cv-003-WQH-NLS

1

the action was filed. Cal. Civ. Code § 3287(b). Section 3287 does not specify the amount

2

of pre-judgment interest to be awarded.

3

Here, the parties did not resolve the amount owed for additional work. The amount

4

owed for additional work was debated and uncertain. Pre-judgment interested is mandated

5

by section 3287(a) for the jury’s award for work performed under the contract but

6

discretionary for the unliquidated award for additional work performed. The Court awards

7

compound interest of 2.4% on the award for work performed under the contract, from

8

October 15, 2015, the date Bilbro filed its claim against Alpha. (ECF No. 17). The Court

9

declines to award pre-judgment interest on the award for additional work, because an award

10

of pre-judgment interest is intended to compensate the prevailing party for the time it was

11

owed an amount certain, which is not the case here.

12 III.

SCE’S MOTION FOR ATTORNEYS’ FEES

13

SCE contends it is a prevailing party in this litigation and is entitled to reasonable

14

attorneys’ fees and costs incurred in defending itself against Alpha’s indemnity claims

15

pursuant to the attorneys’ fees clause of the contract between SCE and Alpha. (ECF No.

16

292-1 at 9). SCE alleges it is a prevailing party because “a plaintiff’s voluntary dismissal

17

of his action makes the defendant a prevailing party entitled to costs and fees.” Id. (citations

18

omitted). Alpha contends SCE is not entitled to attorneys’ fees or costs because it is not a

19

prevailing party. (ECF No. 296 at 6).

20

There was no prevailing party on Alpha’s claim against SCE. See Cal. Civ. Code §

21

1717(b)(1) (“The court may also determine that there is no party prevailing on the contract

22

for purposes of this section.”). “[T]ypically, a determination of no prevailing party results

23

when both parties seek relief, but neither prevails, or when the ostensibly prevailing party

24

receives only part of the relief sought.” Hsu v. Abbara, 891 P.2d 804, 812 (Cal. 1995). The

25

March 19, 2019, final judgment states, “Alpha Mechanical, Inc.’s claim for Contractual

26

Indemnity against Shadpour Consulting Engineers, Inc. is dismissed as a result of Number

27

1, above.” (ECF No. 286). “Number 1” states that Alpha is entitled to judgment against

28

Bilbro. Id. Alpha did not voluntarily dismiss the claim against SCE; the claim was mooted
12
16-cv-003-WQH-NLS

1

by Alpha prevailing against Bilbro.1 SCE did not prevail in the claim against it and is not

2

entitled to attorneys’ fees.

3

The Court also denies Alpha’s request for $15,946 in attorneys’ fees to respond to

4

SCE’s motion and Bill of Costs, as well as Alpha’s request to hold SCE jointly and

5

severally liable for the award of attorneys’ fees against Bilbro. (ECF No. 296 at 26). Alpha

6

did not prevail in its claim against SCE and is therefore not entitled to the requested fees.

7 IV.

MOTION TO RE-TAX COSTS

8

Alpha requests the Court exercise its discretion under Local Rule 54.1(f) and reverse

9

the Clerk of Court’s Order taxing costs (ECF No. 312) in favor of SCE because SCE is not

10

a prevailing party and is therefore not entitled to recover costs. (ECF No. 315-1 at 5).

11

The Clerk’s Order states:

12

According to Local Rule 54.1(f), ‘The defendant is the prevailing party upon
any termination of the case without judgment for the plaintiff except a
voluntary dismissal under Fed. R. Civ. P. 41(a).’ Alpha Mechanical, Inc.’s
claim against counter defendant Shadpour Consulting Engineers, Inc. was
dismissed. A dismissal is not a judgment for plaintiff, therefore Shadpour
Consulting Engineers, Inc. is entitled to recovery from Alpha Mechanical, Inc.

13
14
15
16
17

(ECF No. 312 at 2).
Local Rule 54.1 provides that “[t]he determination of the prevailing party shall be

18
19
20

within the discretion of the court in all cases except where such determination is
inconsistent with statute or the Fed. R. Civ. P. or the rules of the appellate courts.”
SCE is not a prevailing party. Therefore, SCE is not entitled to recover costs.

21
V.

22

IT IS HEREBY ORDERED that Alpha’s Motion for Attorneys’ Fees is GRANTED

23
24

CONCLUSION

IN PART and DENIED IN PART. Alpha is awarded 1) attorneys’ fees and 2) compound

25
26

Even if Alpha had voluntarily dismissed the claim against SCE, SCE still would not be a “prevailing
party” entitled to attorneys’ fees under section 1717 of the California Civil Code. See Cal. Civ. Code §
1717(b)(2) (“Where an action has been voluntarily dismissed or dismissed pursuant to settlement of the
case, there shall be no prevailing party for purposes of this section.”).
1

27
28

13
16-cv-003-WQH-NLS

1

pre-judgment interest of 2.4% from October 15, 2015, on the amount awarded for work

2

performed under the contract. Alpha’s request for pre-judgment interest on the award for

3

additional work performed is DENIED. Alpha’s request for expert fees is DENIED.

4
5

IT IS FURTHER ORDERED that SCE’s Motion for Attorney’s Fees is DENIED.
Alpha’s Motion to Re-Tax Costs is GRANTED.

6

IT IS FURTHER ORDERED that within three days of the date of this Order, Alpha

7

shall file with the Court, and serve on Bilbro, an amended judgment. Bilbro shall file any

8

objections to the amended judgment within three days of service of the amended judgment.

9

Dated: September 18, 2019

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
14
16-cv-003-WQH-NLS