Kipp Young vs Robert Hunter et al

Case Number

19CV01945

Case Type

Hearing Date / Time

Fri, 12/19/2025 - 10:00

Nature of Proceedings

Motion: Attorney Fees

Tentative Ruling

For all the reasons stated herein, plaintiff Kip Young’s motion for attorney fees is granted in part. The court awards attorney fees in favor of plaintiff Kip Young and against defendants Continental Store Equipment Co. and Robert Hunter in the amount of $127,755.

Background:

On April 11, 2019, plaintiff Kip Young (Young) initiated this action by filing a complaint against defendants Continental Store Equipment Co. (CSE) and Robert Hunter (Hunter) alleging two causes of action for (1) breach of contract and (2) common counts.

The complaint alleges that defendants CSE and Hunter failed to return a good faith deposit in the amount of $81,750 that was provided by plaintiff on condition that defendants cause a Real Estate Purchase Agreement (RPA) relating to a pending sale of residential property (the Property) be assigned to plaintiff. (Complaint, ¶¶ BC-2, BC-4.) Defendants failed to assign the RPA to plaintiff Young. (Complaint, ¶ BC-4.) Defendants then purchased the Property and unjustly retained plaintiff’s deposit. (Ibid.)

On September 20, 2019, defendants CSE and Hunter filed a cross-complaint against Young alleging four causes of action for (1) breach of contract, (2) intentional interference with contractual relationship, (3) fraud in the inducement, and (4) breach of non-disclosure agreement.  

The cross-complaint alleges that the deposit was non-refundable if Young did not close escrow by July 10, 2018, and Young did not close escrow by that time. (Cross-Complaint, ¶¶ 9a, 9b.) CSE nonetheless offered to refund the deposit if Young certified that he had not made improper disclosures under the non-disclosure agreement (NDA) executed on March 8, 2018. (Id., ¶ 15.) Young refused because he had entered into an oral agreement to purchase the Property directly from the seller if CSE was unable to close escrow, thereby causing a higher cost of transaction to CSE and a higher return to the seller. (Id., ¶ 16.) Defendants CSE and Hunter sought to recover reasonable attorney fees from plaintiff Young. (Cross-Complaint, p. 8, ll. 15-16.)

On June 4, 2025, after a six-day bench trial held on November 20, 21, 25, 26, 27, 2024, and January 13, 2025, judgment was entered in favor of plaintiff Young and against defendants CSE and Hunter on Young’s causes of action for breach of contract and common counts in the amount of $136,931.25 inclusive of interest. (Judgment, entered June 4, 2025, p. 9, ll. 7-15 & p. 10, ll. 8-16 (Judgment).)

Judgment was also entered in favor of plaintiff Young and against defendants on defendants’ causes of action in the cross-action for breach of contract, intentional interference with existing contract, and violation of the NDA. (Judgment, p. 9, ll. 16-22.)

The Judgment provides that plaintiff Young is the prevailing party, has achieved a “complete victory” on the complaint and in his defense on the cross-complaint, and is entitled to recover reasonable attorney fees on the cross-complaint. (Judgment, p. 9, ll. 24 - p. 10, ll. 7.)

On June 26, 2025, notice of entry of judgment was filed by plaintiff Young and served on defendants.

On July 11, 2025, plaintiff Young filed this motion for attorney fees.

On November 3, 2025, the court approved the parties’ stipulation continuing the hearing on plaintiff’s motion for attorney fees to December 19, 2025, permitting plaintiff to file a supplement to the motion for attorney fees on or before November 26, and permitting defendant to file an opposition within 10 days of service of the supplement.

On November 26, 2025, plaintiff Young filed a declaration in support of his motion for attorney fees.

Defendants CSE and Hunter did not file an opposition to plaintiff Young’s motion for attorney fees.

Analysis:

“Except as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.” (Code Civ. Proc., § 1032, subd. (b).) This right extends to costs incurred in a cross-action. (Code Civ. Proc., § 1032, subd. (a)(1).) Attorney fees are allowable as costs under Code of Civil Procedure section 1032 when authorized by contract, statute or law. (Code Civ. Proc., § 1033.5, subd. (a)(10.)

“In any action on a contract, where the contract specifically provides that attorney 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 fees in addition to other costs ….” (Civ. Code, § 1717, subd. (a).)

“The burden is on the party seeking attorney’s fees to prove that the fees it seeks are reasonable.” (Gonzalez v. Santa Clara County Dept. of Social Services (2017) 9 Cal.App.5th 162, 169.) The burden of proof in civil actions is generally a preponderance of the evidence standard on the moving party. (Buss v. Superior Court (1997) 16 Cal.4th 35, 53.) “Except as otherwise provided by law, a party has the burden of proof as to each fact the existence or nonexistence of which is essential to the claim for relief or defense that he is asserting.” (Evid. Code, § 500.)

“Under the lodestar method, attorney’s fees are calculated by first multiplying the number of hours reasonably expended on the litigation by a reasonable hourly rate of compensation.” (Syers Properties III, Inc. v. Rankin (2014) 226 Cal.App.4th 691, 697.) “[T]he lodestar is the basic fee for comparable legal services in the community; it may be adjusted by the court based on factors including, as relevant herein, (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 (2001) 24 Cal.4th 1122, 1132 (Ketchum).) “The purpose of such adjustment is to fix a fee at the fair market value for the particular action. In effect, the court determines, retrospectively, whether the litigation involved a contingent risk or required extraordinary legal skill justifying augmentation of the unadorned lodestar in order to approximate the fair market rate for such services.” (Ibid.)

Pursuant to the declaration of Frank P. Cuykendall, plaintiff Young is requesting attorney fees in the amount of 354.4 hours at the rate of $450 per hour totaling $159,480. (Cuykendall Decl., ¶¶ 2-8.) Counsel for plaintiff described the work performed as including case evaluation, legal research, pleadings, written discovery, deposition of defendant, communications with opposing counsel and the court, client communication and strategy meetings, court appearances, trial preparation, trial, and post-trial filings. (Id., ¶ 5.)

The rate of $450 per hour is consistent with the rates for comparable services in the community by similarly experienced counsel. The court finds this rate reasonable.

The court has already determined that plaintiff Young is entitled to attorney fees on the cross-complaint. Fees not related to the cross-complaint in this litigation are not recoverable under the judgment. (Judgment, p. 9, ll. 24-28.)

The complaint in this action was filed on April 11, 2019, and the cross-complaint was filed on September 20, 2019. The attorney time submitted in support of plaintiff’s motion for attorney fees begins on June 26, 2018, prior to the filing of the cross-complaint and prior to this litigation. (Cuykendall Decl., Ex. A.) Some of the time described in the supporting declaration appears to concern the underlying real estate transaction rather than litigation on the cross-action. (Ibid.)

The court will permit recovery for attorney time beginning with the entry dated September 24, 2019, where it appears that Young’s counsel began work to defend against the cross-complaint. The court notes that once the cross-complaint was filed, it became impractical to apportion time spent between the issues in the complaint and cross-complaint. “Attorney’s fees need not be apportioned when incurred for representation on an issue common to both a cause of action in which fees are proper and one in which they are not allowed.” (Reynolds Metals Co. v. Alperson (1979) 25 Cal.3d 124, 129-130.) “Apportionment is not required when the claims for relief are so intertwined that it would be impracticable, if not impossible, to separate the attorney’s time into compensable and noncompensable units.” (Bell v. Vista Unified School Dist. (2000) 82 Cal.App.4th 672, 687.)

For the period of September 24, 2019, through April 19, 2023, Young carried his burden to demonstrate that the time entries totaling 85.4 attorney hours in pretrial work were reasonably spent on the cross-complaint.

The next time for November 1 to November 19, 2024, for 55 hours describes the time spent as follows: “Prepare for Trial including review of file, discovery, pleadings, deposition of Hunter, extensive review of past legal research, update legal research including the California Supreme Court’s decision in Freedman v. The Rector (1951) 37 Cal.2d 16, 37- retention of plaintiff’s deposit constituted an invalid forfeiture), Kuish v Smith Jr., 181 Cal.App.4th 1419 (2010) [holding that when a seller seeks damages from a defaulting buyer, if the property has increased in value before trial and the seller resells the property at a price equal to or higher than the value of the contract, there are no longer any loss of- bargain damages and that a ‘nonrefundable’ deposit term cannot constitute separate and additional consideration in support of subsequent agreements to extend the escrow closing date; including preparation of trial documents including witness list, exhibit lists, trial brief meetings with client.” (Cuykendall Decl., Ex. A.) The court will grant recovery of this attorney time.

For the days of November 20, 21, 25, 26, 27, 2024, and January 13, 2025, there is a time entry for 125 hours. This time entry is described as follows: “Additional preparation between and before each day of trial and participation at trial for the six days of trial.” (Cuykendall Decl., Ex. A.) The court will grant recovery of this attorney time.

The court will also grant recovery of the 18.5 hours for the review of audio trial transcripts, preparation of the proposed statement of decision and the review of the statement of decision filed by the court. (Cuykendall Decl., Ex. A.)

For all the reasons stated above, the court will grant plaintiff Young’s motion for attorney fees as to: (1) 85.4 hours in pretrial work from September 24, 2019 through April 19, 2023; (2) 55 hours for the entry for November 1 to November 19, 2024; (3) 125 hours for the entry for November 20, 21, 25, 26, 27, 2024, and January 13, 2025; and (4) 18.5 hours for the review of audio trial transcripts, preparation of the proposed statement of decision and the review of the statement of decision filed by the court. These amounts total to 283.9 hours at $450 per hour, totaling $127,755.