Alberto v. Imamura

Opinion

FILED

2020 t!AR -q : (2: I q 2 3UPERIOR COUR 3 0 M 4

7 BRYAN J, ALBERTO, ) Civil Case No. CV0564-17 8 ) ) Plaintiff, ) 9 v. ) 10 ) DECISION AND ORDER ) ) 12 ) Defendant. ) 13 _______________________________) 15 This matter came before the Honorable Alberto C. Lamorena, III on December 23, 2019 16 for hearing on Plaintiff Bryan J. Alberto's ("Plaintiff') Petition for Attorney's Fees and Costs 17

18 ("Petition"). Attorney John Richard Bordallo Bell represents Plaintiff. Attorney William Gavras

19 represents Defendant Erika Imamura ("Defendant"). Having duly considered the parties' briefs, 20 oral arguments, and the applicable law, the Court now issues the following Decision and Order 21 and GRANTS IN PART and DENIES IN PART Plaintiff's Petition. 22 BACKGROUND 23

24 In September 2015, Defendant landlord and Plaintiff tenant entered into a lease

25 agreement for a condo at PIA Marine for a period of approximately one year. Findings of Fact 26 and Conclusions of Law ("FFCL") at 2 (Aug. 2, 2019). Plaintiff provided Defendant a security 27 deposit in the amount of $2,450.00. !d. After a conversation between Defendant and Plaintiff in 28 Decision and Order CV0564-17, Alberto v. Imamura

July 2016, Defendant believed Plaintiff would be renewing the lease, but did not seek an

2 extension in writing per the terms of the lease agreement. !d. Plaintiff notified Defendant of his

3 intent not to renew the lease in August 2016. !d. After discussions about a Letter of Release for 4 Navy Housing, Defendant asserted Plaintiff was required to give Defendant written notice of his 5 intent to terminate the tenancy. !d. at 2-3. No such notice was required. 6

7 Plaintiff vacated the premises on September 30, 2016. !d. at 3. After a walkthrough of

8 the condo, Defendant communicated that the condition of the condo was satisfactory and 9 executed the Letter of Release. !d. at 4. The next day, Defendant gave Plaintiff a check in the 10 amount of $2,150.00. !d. After giving him the check, however, Defendant notified Plaintiff that 11 she would be cancelling the check. !d. Defendant then claimed Plaintiff was only entitled to 12

13 $353.00 of his security deposit due to damage to the condo. !d. at 5.

14 Plaintiff disputed the withholding of the security deposit. !d. In December 2016, Plaintiff 15 and his attorney sent a demand letter to Landlord pursuant to the Deceptive Trade Practices - 16 Consumer Protection Act ("DTPCPA") under 5 G.C.A. § 32110. !d. After Defendant failed to 17 respond, Plaintiff filed suit. Following a bench trial, the Court issued its FFCL, entering 18

19 judgment in favor of Plaintiff against Defendant in the amount of $2, 150.00, attorney's fees, and

20 court costs. !d. at 14. 21 Following judgment, Plaintiff filed its Petition, seeking reimbursement of attorney's fees 22 in the amount of $42,704.18. Defendant filed an opposition, arguing reasonable attorney's fees 23

24 comes to approximately $12,992.00. Defendant's Opposition to Plaintiff's Petition for

25 Attorney's Fees ("Opposition") at 7. Plaintiff filed a response, asserting Defendant's arguments 26 for lowering the attorney's fee award are unfounded and unsupported by facts. Plaintiff's Reply 27 to Defendant's Opposition to Plaintiff's Petition for Attorney's Fees and Costs ("Reply") at 1 28

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(Oct. 9, 2019). The Court held a hearing on the matter, at which point the Court took the matter

2 under advisement. Min. Entry (Dec. 23, 2019). After the Court took this matter under

3 advisement, Plaintiff filed an objection to allegations brought up at the hearing regarding the 4 rate charged for a law clerk used by Plaintiff. Objection to New Allegations Made During Oral 5 Argument on Plaintiff's Petition for Attorney's Fees and Costs ("Plaintiff's Objection") at 1-2 6

7 (Dec. 26, 2019).

9 In determining whether to award attorney's fees to a party, courts commonly apply what 10 is referred to as the "American Rule." Fleming v. Quigley, 2003 Guam 4

13 However, exceptions to this rule exist "where attorney's fees are: (1) authorized by statute, (2)

14 authorized by contract, or (3) allowed in judicially-established circumstances." !d. Here, the 15 award of attorney's fees is authorized by the DTPCA under 5 G.C.A. § 32110. The Court has 16 also previously determined that Plaintiff is the prevailing party in this action and is therefore 17 entitled to recover reasonable attorney's fees per statute. FFCL at 14. 18

19 A. Lodestar Method and Factors

20 Reasonable attorney's fees are determined using the lodestar method, that is, the number 21 of hours reasonably spent litigating a case multiplied by a reasonable hourly rate. Hensley v. 22 Eckhart, 461 U.S. 424, 433 (1983). The lodestar may then be adjusted upwards or downwards 23

24 based on the factors outline in Kerr v. Screen Extras Guild, Inc., to the extent these factors have

25 not been subsumed into the lodestar. 526 F.2d 67, 69-70 (9th Cir. 1975) (abrogated on other

26 grounds by City of Burlington v. Dague, 505 U.S. 557 (1992)). These factors include: 27 (1) the time and labor required, 28 (2) the novelty and difficulty of the questions involved,

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(3) the skill requisite to perform the legal service properly, (4) the preclusion of other employment by the attorney due to acceptance of the 2 case, (5) the customary fee, 3 (6) whether the fee is fixed or contingent, (7) time limitations imposed by the client or the circumstances, 4 (8) the amount involved and the results obtained, 5 (9) the experience, reputation, and ability of the attorneys, (10) the "undesirability" of the case, 6 (11) the nature and length of the professional relationship with the client, and 7 (12) awards in similar cases.

8 !d. (citing Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974)); Tutor-

9 Saliba Corp. v. City of Hailey, 452 F.3d 1055, 1065 (9th Cir. 2006). The party applying for fees 10 bears the burden of documenting and proving that he or she is entitled to recover the fees 11 requested. Hensley, 461 U.S. at 437. Neither party offered evidence or arguments on the 12

13 following factors: (3) the skill requisite to perform the legal service properly; (4) the preclusion

14 of other employment by the attorney due to acceptance of the case; (5) the customary fee; (6) 15 whether the fee is fixed or contingent; (7) time limitations imposed by the client or the 16 circumstances; ( 10) the "undesirability" of the case; and ( 11) the nature and length of the 17 professional relationship with the client. As such, the Court focuses its analysis on the 18

19 remaining factors.

20 1. The Time and Labor Required and A wards in Similar Cases 21 Plaintiff asserts it "devoted a total of 507.10 billable hours of professional time and 22 effort rendered to this case." Pet. at 2. Plaintiff argues "the charges are reasonable for it took 23

24 almost 3 years to litigate this matter." !d. at 5. The labor required in this case included serving

25 Defendant, drafting the Complaint, engaging in discovery, pre-trial briefing, a one day trial, and

26 post-trial briefing. The Court is skeptical that this case required 507.10 hours of work and effort. 27 The Court finds two cases from outside jurisdictions instructive on the present issues: Kaeding 28

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v. Auleciems, 886 N.W.2d 658 (Minn. Ct. App. 2016) and Lee v. Stanziale, 128 A.3d 579 (Conn.

2 App. Ct. 2015).

3 In Kaeding, the tenant disputed the forfeiture of his security deposit and pet deposit. 886 4 N.W.2d at 662. The labor required in Kaeding included the work involved in the case at hand, as 5 well as defending against a counter-claim, summary judgment motions, and defending against a 6

7 last-minute counter-claim added the day of trial. !d. Plaintiff's counsel in Kaeding spent "49.4

8 hours billed at $250 per hour," for a total of $12,350.00, which the trial and appellate courts 9 found was a reasonable rate, number of hours, and award "for a contested matter with multiple 10 motions and a one-day trial." !d. at 663. II In Lee, the tenant disputed the forfeiture of his security deposit, as well as claims that the 12

13 tenant owed damages not covered by the security deposit. 128 A.3d at 528. The labor required

14 in Lee included handling the transfer of the case from small claims to the civil docket, 15 discovery, pre-trial memoranda, pre-trial motions and requests, a five day trial over eight 16 months (which included almost one hundred exhibits and testimony from a variety of 17 witnesses), and post-trial briefing. !d. at 529. Plaintiff's counsel in Lee spent "sixty-three hours 18

19 on the matter over the course of more than twenty-five months" at a rate of $250.00 per hour. !d.

20 at 530. Following an objection by the defendant, the court awarded the plaintiff $14,750.00 in 21 attorney's fees. !d. 22 The Court is skeptical that 507.10 hours of work were necessary for this case, 23

24 considering attorneys in other cases have spent significantly less time on cases which presented

25 more issues, like Kaeding (49.4 hours) and Lee (63 hours).

26 Plaintiff cites cases two cases in support of its assertion that a large attorney's fees award 27 need not be proportional to a small verdict. Pet. at 3. Plaintiff first cites Medina v. S. Coast Car 28

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Co., Inc., a case with damages amounting to $8,600.00 which resulted in attorney's fees of

2 $128,000.00. 223 Cal. Rptr. 3d 566, 573-74 (Cal. Ct. App. 2017). The plaintiff brought that

action pursuant to the Consumer Legal Remedies Act after the plaintiff discovered issues with 4 the vehicle he purchased from the defendant. !d. at 568-69. Plaintiff then cites Marquez v. 5 Mercedes-Benz USA, LLC, a case with a judgment amounting to around $168,000.00 which 6

7 resulted in attorney's fees of around $314,000.00. 815 N.W.2d 314, 317 (Wis. 2012). This

8 action arose out of a violation of Wisconsin's "lemon law" after the plaintiff purchased a vehicle 9 from the defendant. !d. at 316. 10 The Court finds Plaintiff's cited cases are not analogous to the present case. Here, the II cause of action arose out of a failure to return a security deposit pursuant to a residential lease 12

agreement. Plaintiff's cited cases arose out of mechanical failures with vehicles. While the legal

14 issues could arguably be similar, the factual basis for these two sets of actions are indisputably 15 different, leading to potentially entirely different litigation strategies and discovery. 16 2. The Novelty and Difficulty of the Questions Involved 17 This case involved applying fairly well-settled law to the facts presented. There were not 18

19 major questions of interpretations of law which required extensive research and briefing.

20 Similarly, there is no evidence that the parties m Kaeding and Lee engaged in extensive 21 litigation regarding interpretations of law or related issues. This case required application of 22 facts, obtained through discovery, to fairly straight-forward questions of law. 23

24 3. The Amount Involved and the Results Obtained

25 Plaintiff provided Defendant with a security deposit of $2,450.00. FFCL at 2. The Court

26 found that "Tenant is entitled to the return of his security deposit, less late fees for overdue rent, 27 in the amount of two thousand one hundred fifty dollars ($2,150.00)." !d. at 13. Plaintiff 28

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pursued two causes of action: fraud and violations of the DTPCP A. Compl. at 7 & 8. Plaintiff

2 succeeded on the DTPCPA claim but failed in proving its fraud claim. FFCL at 8 & 13. Plaintiff

3 failed to recover additional damages under the DTPCP A as he failed to show that Defendant 4 "committed these violations as a regular business practice." Id. at 13. 5 In Kaeding, the amounts involved, those being the security deposit and the pet deposit, 6

7 totaled $3,500.00. 886 N.W.2d at 661. After a hearing on the issue of damages, the plaintiff-

8 tenant recovered $2,860.00 of the deposits. In Lee, the plaintiff paid a security deposit of 9 $5,000.00 to the defendant-landlord. 128 A.3d at 527. The court found the plaintiff to be the 10 prevailing party and was entitled to $4,788.01 due to an offset for damages as a result of the II plaintiff's breach of the lease agreement. Id. at 530. The amounts involved in Kaeding and Lee 12

13 were higher than those involved in the present case.

14 4. The Experience, Reputation, and Ability of the Attorneys 15 Plaintiff's counsel, John Richard Bordallo Bell, became licensed as an attorney in 2012. 16 Pet., Decl. of John Richard Bordallo Bell at 1. As such, Plaintiff's counsel entered this case as a 17 fourth-year attorney and the Court rendered judgment during his seventh year. Plaintiff's IS

19 counsel has worked on five DTPCPA cases before.Id. at 2.

20 B. A ward Under the Lodestar Method 21 Plaintiff cites Anderson v. AB Painting & Sandblasting Inc. for the proposition that 22 courts have rejected the argument that fees must be calculated proportionally to damages. 578 23

24 F.3d 542, 545 (7th Cir. 2009) (citing Alexander v. Gerhardt Enters., Inc., 40 F.3d 187, 194 (7th

25 Cir. 1994)). However, as explained above, Plaintiff is entitled to reasonable attorney's fees.

26 Considering the factors discussed, the Court finds an award of $42,704.18 to be unreasonable. 27

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Plaintiff assetis a number of reasons in justifying the large number of hours expended on

2 this case. Plaintiff alleges Defendant "refused early offers to settle, evaded service, refused to

3 fully comply with discovery, which caused discovery disputes, and switched attorneys just 4 before her deposition in order to have it rescheduled." Pet. at 2. Plaintiff did not offer any 5 factual support for these allegations. Plaintiff did not offer any evidence to show Defendant 6

7 refused early offers to settle, nor that there were any such offers to begin with. Plaintiff did not

8 offer any evidence that Defendant refused to fully comply with discovery. In its Reply, Plaintiff 9 explained that "Both parties ended up stipulating to extending the discovery deadline, which 10 resulted in the motion [to compel] not being filed." Reply at 3. However, Plaintiff failed to offer 11 any evidence to show the basis for the stipulated extension. The Court will not accept a self- 12

13 serving statement from Plaintiff's counsel that Defendant failed to comply with discovery.

14 Plaintiff's failure to file a motion to compel undermines Plaintiff's assertion. Similarly, Plaintiff 15 did not offer any evidence that Defendant switched attorneys for the sole purpose of 16 rescheduling her deposition. 17 Plaintiff further asserts that "The Defendant and her counsel ran up the costs of the 18

19 deposition with the counsel's long-winded objections and his client's evasive and evolving

20 answers." Pet. at 2-3. Plaintiff fails to provide any evidence that such assertions are true. If 21 Plaintiff wanted the Court to consider these arguments, it is Plaintiff's responsibility to provide 22 the required evidence. The Court will not do Plaintiff's research for him. 23

24 Plaintiff then asserts that "the Defendant refused our request to stipulate on exhibits, and

25 most of the litigation including trial occurred with the client being off-island which made things

26 extra time consuming and difficult." Pet. at 3. Once again, Plaintiff fails to provide any evidence 27 of Defendant's refusal to stipulate to exhibits. Further, Plaintiff fails to explain how his off- 28

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island residency made this litigation more difficult and time consuming. The party applying for

2 fees bears the burden of documenting and proving that he or she is entitled to recover the fees

3 requested. Hensley, 461 U.S. at 437. Plaintiff failed to provide any factual support for the 4 allegations here. 5 The Court finds $13,000.00 to be a reasonable award, considering the lodestar factors. 6

7 Plaintiff litigated a fairly straight-forward case with a one day trial and no motions. While the

8 Court is inclined to give a smaller award, the Court acknowledges some of the Plaintiff's points 9 regarding difficulties with service, discovery disputes, generally, and preparation for trial and 10 trial briefing. Claims involving smaller dollar amounts are worth advocating for just as much as II large-dollar claims. However, Plaintiff's claim of $42,704.18 is unreasonable, considering the 12

13 lodestar factors above. The Court further acknowledges Plaintiff's Objection. However, as

14 Plaintiff failed to satisfy the filing requirements under CVR 7.1, the Court declines to consider 15 the objection. See CVR7.1(a) ("The provisions of this Rule shall apply to motions ... and all 16 other proceedings except a trial on the merits .... "; see also CVR 7.1(f). 17 CONCLUSION 18

19 For the reasons stated above, Plaintiff's Petition is GRANTED IN PART and DENIED

20 IN PART. The Court DENIES Plaintiff's request for $42,704.18 in attorney's fees but 21 GRANTS Plaintiff $13,000.00 in reasonable attorney's fees. 22

23 IT IS SO ORDERED this 4th day of March, 2020. 24

26 SERVICE VIA COURT r.n;: I acknowledge that a ,;opy tA th~ 27 original hereto wac pl1cerl ir ~i e co~~ HONORABLE ALBERTO C. LAMORENA III 28 Presiding Judge, Superior Court of Guam

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