United States District Court, S.D. California
UNITED STATES OF AMERICA for the Use and Benefit of PENN AIR CONTROL INC., a California corporation,
BILBRO CONSTRUCTION COMPANY, INC., a California corporation; and INTERNATIONAL FIDELITY INSURANCE COMPANY, a New Jersey corporation, Defendants. And Related Counterclaims. Name Years’ Experience Billing Rate Hours Amount Billed
William Q. Hayes, United States District Court
matters before the Court are 1) Alpha Mechanical,
Inc.’s (“Alpha”) Motion fo Attorneys’
Fees, Costs and Pre-Judgment Interest (ECF No. 289); 2)
Shadpour Consultin 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).
background to this action is described in detail in the
Court’s Order on Bilbro Construction Company,
Inc.’s (“Bilbro”) Motion for New Trial.
(ECF No. 335).
ALPHA’S MOTION FOR ATTORNEYS’ FEES, COSTS AND
contends that it is the prevailing party in this litigation
and entitled to attorneys’ fees and costs pursuant to
Article XXXV of the Subcontract between Alpha and Bilbro.
Alpha requests an award of “(1) at least $720, 182 in
attorneys’ fees actually and reasonably incurred in
having to defend itself and to prosecute its claims in this
litigation; (2) $70, 325 in costs incurred by Alpha in having
to retain experts in this litigation; and (3) $107, 051.45 in
pre-judgment interest on the amounts withheld by Bilbro
starting from April 2015.” (ECF No. 289-1 at 6-7).
Alpha’s attorneys’ fee request includes $49,
709.50 in work performed prior to being served with
Bilbro’s Counterclaim, which Alpha asserts is
“related to the enforcement of the Subcontract and
preparation of a complaint by Alpha against Bilbro.”
Id. at 8-9. Alpha asserts that its billing rates are
“well within those customarily charged by experienced
litigation counsel within the Southern California legal
community” and that it “took reasonable measures
to staff the case, using one associate and one paralegal at a
time with no overlap, where possible, to minimize cost . . .
.” Id. at 14. Alpha states that it is only
requesting fees already billed and paid by Alpha to its law
firm, Solomon, Ward, Seidenwurm and Smith, LLP
(“SWSS”). (Angert Decl., ECF No. 289-2 ¶
contends that Alpha is not entitled to recover
attorneys’ fees for time spent prosecuting claims
against litigants other than Bilbro or for Alpha’s
claim for “additional work” it performed
implementing Sparling’s noise mitigation suggestions.
(ECF No. 311 at 6-7). Bilbro also contends that Alpha’s
fees should be reduced by 40% because Alpha overstaffed the
matter and charges rates not commensurate with the San Diego
legal community. Bilbro contends that Alpha is not entitled
to expert fees because the experts were not ordered by the
Court. Finally, Bilbro contends that pre-judgment interest is
only appropriate on the $323, 352.00 that Bilbro withheld
from Alpha at a simple interest rate because the award for
additional work was uncertain. Id. at 8, 19.
Federal Rule of Civil Procedure 54(d)(2)(B)(ii), a motion for
attorneys’ fees must “specify the judgment and
the statute, rule, or other grounds entitling the movant to
the award.” State law governs the interpretation and
application of a provision in a contract that permits an
award of attorney’s fees. Resolution Trust Corp. v.
Midwest Fed. Sav. Bank of Minot, 36 F.3d 785, 800 (9th
1717 of the California Civil Code provides:
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.
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)).
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 hourly rate used for the
lodestar calculation is that prevailing in the community for
similar work.” Id. at 772. After determining
the reasonable hourly rate for comparable legal services in
the community, courts may adjust that amount based on the
following factors: “(1) the novelty and difficulty of
the questions involved, (2) the skill displayed in presenting
them, (3) the extent to which the nature of the litigation
precluded other employment by the attorneys, (4) the
contingent nature of the fee award.” Ketchum v.
Moses, 17 P.3d 735, 741 (Cal. 2001). “[T]he
purpose of such adjustment is to fix a fee at the fair market
value for the particular action.” Id.
jury in this matter found in favor of Alpha and against
Bilbro on the parties’ competing breach of contract
claims. (ECF No. 266). The jury awarded Alpha more than a
million dollars in damages for breach of contract.
Id. Alpha was the prevailing party in this
XXXV of the Subcontract between Bilbro and Alpha provides:
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 ...