The opinion
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> The following constitutes the order of the Court.
Signed: November 30, 2022
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4 LES Re YO OA
5 Charles Novack =—=~=~CS*~<“~S*~S*~S
6 U.S. Bankruptcy Judge
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UNITED STATES BANKRUPTCY COURT
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NORTHERN DISTRICT OF CALIFORNIA
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10 In re: Case No. 19-41729 CN
Chapter 11
11 SONJA NICOLLE COLBERT,
MEMORANDUM DECISION AND
12 Debtor. ORDER RE: PREVAILING PARTY
DETERMINATION FOR
13 AWARDING ATTORNEYS’ FEES
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16 On October 7, 2022, this court conducted a hearing on the competing requests by
17| Chapter 11 debtor Sonja Nicolle Colbert and creditor Cleveland Mitchell for attorney’s
1g | fees arising from the multi-day evidentiary hearing that resolved Colbert’s objection to
19 | Mitchell’s amended proof of claim. All appearances were noted on the record. The
49 | following constitutes this court’s findings of fact and conclusions of law under Federal
91 | Rule of Bankruptcy Procedure 7052(a).
2 The results of this contested matter are a matter of record. To summarize, Colbert
| owns a multi-unit residential apartment building at 1864 11 Avenue in Oakland,
California, and Mitchell resided in a unit in the building for over three years. After he
45 | vacated his unit, Mitchell commenced litigation in Alameda County Superior Court against
96 | Colbert regarding his apartment’s habitability and Colbert’s allegedly retaliatory conduct.
Colbert’s Chapter 11 bankruptcy filing stayed the Superior Court litigation, and Mitchell’s
4g | timely filed proof of claim is based on his Superior Court complaint. The proof of
1 claim/complaint asserts causes of action for tortious and contractual breach of the implied
2 warranty of habitability, violations of California Civil Code §§ 1942.4 and 1924.5(a)
3 and (c)1, breach of contract, statutory breach of quiet enjoyment, private nuisance,
4 premises liability under California Civil Code § 1714, negligence, violation of the City of
5 Oakland’s Just Cause and Tenant Protection Ordinances, Unfair Business Practices under
6 California Business and Professions Code §§ 17500 et. seq., and common law retaliatory
7 eviction. The complaint’s prayer for relief requested damages and attorney’s fees under
8 several of the above statutes, including Cal. Civ. Code §§ 1942.4 and 1942.5.2
9 The evidentiary hearing produced mixed results. After Mitchell completed his case
10 in chief, Colbert successfully moved under Federal Rule of Bankruptcy Procedure 7052(c)
11 for judgment in her favor on the habitability, Cal. Civ. Code § 1942.4, breach of contract,
12 nuisance, premises liability and negligence causes of action and parts of the Unfair
13 Business Practices’ and Just Cause Ordinance’s claims. After Colbert presented her
14 defenses to the remaining causes of action, the court took the matter under submission and
15 issued a memorandum decision in which it found that Colbert had unlawfully retaliated
16 against Mitchell (under Cal. Civ. Code § 1942(c)) when she served an eviction notice for
17 unpaid rent that an unlawful detainer jury had only days before determined was not owed.
18 The court awarded $15,000 in damages as compensation for Colbert’s violation of Cal.
19 Civ. Code section 1942.5(c). This court held that Colbert was not liable, however, on
20 Mitchell’s remaining causes of action, including his claim that Colbert had also retaliated
21 against him under Cal. Civ. Code § 1942.5(a).3 In summary, Colbert prevailed on all but
22 one of the causes of actions tried by this court.
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24 1 Any references to California Civil Code §§ 1942.4 and 1942.5 are to the versions
of these statutes in effect on November 6, 2017 — the date Mitchell commenced litigation
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in Alameda County Superior Court.
26 2 The complaint also requested attorney’s fees under California Civ. P. Code §
1021.5, Oakland’s Tenant Protection Ordinance, and Oakland’s Just Cause Ordinance.
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3 The court respectfully refers the parties to its June 16, 2022, memorandum
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decision.
1 Sections 1942.4(b)(2) authorizes this court to award reasonable attorney’s fees and
2 costs to the prevailing party and 1942.5(g) similarly allows this court to award reasonable
3 attorney’s fees to the prevailing party in retaliatory eviction actions.4 Mitchell prevailed
4 on a single retaliation claim under § 1942(c). Colbert prevailed on the habitability claims
5 under § 1942.4, the retaliatory claims alleged under § 1942.5(a), and the residual retaliatory
6 claims under § 1942(c).5 As a result, both parties argue that they prevailed under sections
7 of the California Civil Code that award fees to the prevailing party, and they both seek to
8 recover their reasonable fees. Colbert seeks $52,097.92 in fees, while Mitchell requests
9 $1,465 in costs and $187,500 in fees (after application of a 1.5 lodestar multiplier). This
10 court must answer two questions: 1) who, if anyone, is the prevailing party, and 2) what
11 fees should be awarded to that party?6 See Graciano v. Robinson Ford Sales, Inc., 50 Cal.
12 Rptr. 3d 273, 284 (Cal. Ct. App. 2006).
13 Determining the Prevailing Party
14 There is no general right to attorney’s fees in bankruptcy cases, adversary
15 proceedings or contested matters. LVNV Funding, Inc. v. Andrade-Garcia (In re Andrade-
16 Garcia), 635 B.R. 509, 513 (B.A.P. 9th Cir. 2022). A prevailing party in a bankruptcy
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18 4 Section 1942.4(b)(2) states that “[t]he prevailing party shall be entitled to recovery
of reasonable attorney’s fees and costs of the suit in an amount fixed by the court.” Section
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1942.5(g) states that “[i]n any action brought for damages for retaliatory eviction, the court
shall award reasonable attorney’s fees to the prevailing party if either party requests
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attorney’s fees upon the initiation of the action.” Mitchell’s prayer for relief requested
attorney’s fees. Further, since Mitchell’s retaliation claims involved several eviction
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notices and at least one unlawful detainer action, his § 1942.5 claims can be described as
retaliatory eviction claims. See Morrison v. Vineyard Creek L.P., 123 Cal. Rptr. 3d 414
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(Cal. Ct. App. 2011); but see Rich v. Schwab, 75 Cal. Rptr. 2d 170 (Cal. Ct. App. 1998).
Section 1942.5 was amended after Mitchell commenced his Superior Court action, and its
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“prevailing party” provision is now subsection (i).
24 5 Mitchell prevailed on a single argument under § 1942.5(c), which concerned
Colbert’s service of her November 2016 eviction notice. His retaliation claims under this
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subsection, however, covered the gauntlet of Colbert’s subsequent notices and conduct
during 2016 and 2017. The court found that Colbert’s subsequent conduct was not
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retaliatory.
27 6 Colbert appealed this court’s memorandum decision on October 2022. Her appeal
does not deprive this court of jurisdiction to hear these fee applications. See Hill &
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Sandford, LLP v. Mirzai (In re Mirzai), 236 B.R. 8, 10 (B.A.P. 9th Cir. 1999).
1 proceeding may recover attorney’s fees, however, “in accordance with applicable state law
2 if state law governs the substantive issues raised in the proceedings.” Id. California law
3 controlled the outcome of this contested matter, and the parties assert that they are entitled
4 to fees under Cal. Civ. Code §§ 1942.4 (Colbert) and 1942.5 (Mitchell and Colbert).
5 Sections 1942.4 and 1942.5 do not define the term “prevailing party.” Colbert asks
6 this court to apply the definition provided by California Code of Civil Procedure § 1032,
7 which describes a prevailing party as
8 [T]he party with a net monetary recovery, a defendant in whose
favor a dismissal is entered, a defendant where neither plaintiff
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nor defendant obtains any relief, and a defendant as against
10 those plaintiffs who do not recover any relief against that
defendant. If any party recovers other than monetary relief and
11 in situations other than as specified, the “prevailing party” shall
be as determined by the court, and under those circumstances,
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the court, in its discretion, may allow costs or not and, if
13 allowed, may apportion costs between the parties on the same
or adverse sides pursuant to rules adopted under Section 1034.
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15 Cal. Civ. P. § 1032(a)(4).
16 While Mitchell is the only party who recovered money damages, Colbert asserts she
17 obtained a net gain of $185,000. This perceived net monetary gain, however, does not
18 anoint her as the prevailing party. Section 1032’s prevailing party definition does not apply
19 to other statutes that have “prevailing party” language, including Civil Code §§ 1942.4 and
20 1942.5. See, e.g., Galan v. Wolfriver Holding Corp., 96 Cal. Rptr. 2d 112, 119 (Cal. Ct.
21 App. 2000); Heather Farms Homeowners Assn. v. Robinson, 26 Cal. Rptr. 2d 758, 760
22 (Cal. Ct. App. 1994). Instead, where a statute authorizes a prevailing party to recover its
23 fees but fails to define that term, a court must address this question on a “practical level”
24 and consider, inter alia, which of the parties realized its litigation objectives, whether by
25 judgment, settlement, or otherwise. See Zuehlsdorf v. Simi Valley Unified School Dist., 55
26 Cal. Rptr. 3d 467, 472 (Cal. Ct. App. 2007); OTO, L.L.C. v. Kho, 447 P.3d 680, 697 (Cal.
27 2019). This standard is not easily applied in litigation involving multiple causes of action.
28 Mitchell asserts that he achieved his litigation objectives once this court awarded him
1 $15,000 in damages; Colbert contends that she, on balance, met her litigation objectives
2 because she prevailed on all but one of Mitchell’s causes of action and was found liable for
3 only a small amount of damages. Neither argument is persuasive. Colbert’s argument
4 ignores the fact that §§ 1942.4 and 1942.5’s prevailing party language requires this court
5 to determine who prevailed on those statutory claims for relief and not on the merits of any
6 other cause of action. See Sharif v. Mehusa, Inc., 193 Cal. Rptr. 3d 644 (Cal. Ct. App.
7 2015). Mitchell’s argument requires additional scrutiny because Colbert successfully
8 defended against Mitchell’s § 1942.5(a) claims and the remainder of his § 1942.5(c)
9 claims, leaving this court to ponder whether anyone prevailed under § 1942.5.
10 Where a court issues a “split decision,” it can find that each party “prevailed” on
11 one or more causes of action and offset the fees. In Sharif v. Mehusa, Inc., 193 Cal. Rptr.
12 3d 644 (Cal. Ct. App. 2015), the plaintiff prevailed on her statutory equal pay claim while
13 her former employer prevailed on the plaintiff’s statutory failure to pay wages cause of
14 action. Both claims were subject to fee shifting provisions, and the parties sought to
15 recover the attorney’s fees they incurred litigating those specific claims. The court rejected
16 plaintiff’s argument that she was the overall prevailing party and determined that both
17 parties were entitled to recover the fees they incurred litigating the claims that they
18 prevailed on. The court held that
19 [I]f plaintiff had brought her wage and Equal Pay Act claims
in separate actions, defendant would have been entitled to
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recover its attorney fees in the action asserting the wage claim
21 and plaintiff would have been entitled to recover her attorney
fees in the action asserting the Equal Pay Act claim. There is
22 no legal or logical reason why defendant should be precluded
from recovering its attorney fees on plaintiff's wage claim
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simply because plaintiff combined her wage and Equal Pay Act
24 claims in a single action. By providing that the prevailing party
under one statute is entitled to fees, and that a different
25 prevailing party under another statute is entitled to fees, the
Legislature expressed an intent that there can be two different
26 prevailing parties under separate statutes in the same action.
Thus, a net monetary award to a party does not determine the
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prevailing party when there are two fee-shifting statutes
28 involved in one action.
1 Id. at 650. The court agrees with this analysis, and Colbert is entitled to the fees that she
2 incurred in litigating Mitchell’s § 1942.4 claim.
3 The parties’ dueling § 1942.5 victories require this court to further refine this
4 analysis. Section 1942.5 broadly prohibits a landlord from retaliating against a tenant who
5 has exercised their legal rights under California law. Mitchell asserted at trial that Colbert’s
6 unlawful retaliation took several forms; this court rejected his arguments under § 1942.5(a)
7 but found that Colbert violated § 1942.5(c) when she served her November 18, 2016
8 eviction notice.7 Accordingly, the court must address whether there can be two prevailing
9 parties when only one fee shifting statute is at play.
10 The Sharif court’s holding equally applies to this scenario. Violations of any one of
11 § 1942.5’s subsections represent an independent cause of action, and the parties are entitled
12 to request their fees and costs under the lodestar analysis.
13 Awarding Fees to the Prevailing Party
14 This court may award prevailing party fees under the lodestar method. PLCM
15 Group, Inc. v. Drexler, 997 P.2d 511 (Cal. 2000). A court first calculates a lodestar amount
16 based on the reasonable hours spent, multiplied by the hourly prevailing rate for private
17 attorneys in the community conducting noncontingent litigation of the same type. "[A]n
18 attorney fee award should ordinarily include compensation for all the hours reasonably
19 spent, including those relating solely to the fee." Ketchum v. Moses, 17 P.3d 735, 742 (Cal.
20 2001). Once this base amount is determined, a court may employ several factors to adjust
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22 7 Colbert commenced an unlawful detainer proceeding against Mitchell in
September 2016 for his alleged failure to pay rent. The parties tried this case before a jury,
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which determined that Mitchell had not defaulted on his rent. The Superior Court entered
a judgment in Mitchell’s favor on November 16, 2016. Undaunted, Colbert served another
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eviction notice on November 18, 2016 alleging, inter alia, that Mitchell was in default on
the same rent at issue in the first unlawful detainer proceeding. This court determined that
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service of the notice constituted unlawful retaliation under § 1942.5(c), which provides in
pertinent part that “[n]otwithstanding subdivision (a), it is unlawful for a lessor to increase
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rent, decrease services, cause a lessee to quit involuntarily, bring an action to recover
possession, or threaten to do any of those actions for the purpose of retaliating against the
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lessee because he or she has . . . lawfully and peaceably exercised any rights under the
law.” Mitchell’s successful defense of the first unlawful detainer action constituted such
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lawful and peaceful exercise of his legal rights as a tenant.
1 it, including the “nature of the litigation, its difficulty, the amount involved, the skill
2 required in its handling, the skill employed, the attention given, the success or failure, and
3 other circumstances in the case.” PLCM Group, Inc., 997 P.2d at 519. The party seeking
4 fees bears the burden of "'establishing entitlement to an award and documenting the
5 appropriate hours expended and hourly rates.'" Christian Research Inst. v. Alnor, 81 Cal.
6 Rptr. 3d 866, 870 (Cal. Ct. App. 2008) (quoting ComputerXpress, Inc. v. Jackson, 113 Cal.
7 Rptr. 2d 625, 649 (Cal. Ct. App. 2001)).
8 Colbert’s Attorney’s Fees
9 Colbert was represented by Mark Voisenat, an experienced and able bankruptcy
10 attorney and general civil litigator who has demonstrated to this court that he is well versed
11 in handling state law matters that frequently arise in Chapter 11 cases, including
12 landlord/tenant issues. Voisenat’s time records state that he billed 122.58 hours on this
13 contested matter at $425/hour. Mitchell does not object to this hourly rate, and the court
14 finds that it is reasonable and within the realm of the hourly prevailing rate for private
15 attorneys in the Oakland, California legal community who handle similar litigation on a
16 non-contingency basis. The more nettlesome question is how many hours Voisenat
17 reasonably expended litigating the §§ 1942.4 and 1942.5 claims. Voisenat block billed his
18 time, which makes it difficult for this court to determine how much time was spent on any
19 one cause of action. See Bell v. Vista Unified School Dist., 98 Cal. Rptr. 2d 263, 274 (Cal.
20 Ct. App. 2000). Block billing is not objectionable on its face but it does “increase the risk
21 the trial court, in a reasonable exercise of its discretion, will discount a fee request.”
22 Jaramillo v. County of Orange, 133 Cal. Rptr. 3d 751, 765 (Cal. Ct. App. 2011); see also
23 Hoffman v. Superior Ready Mix Concrete, L.P., 241 Cal. Rptr. 3d 476, 484 (Cal. Ct. App.
24 2018). Block billing woes notwithstanding, this court must also ask whether Mitchell’s
25 claims were factually or legally conjoined.
26 When a cause of action for which attorney fees are provided
statute is joined with other causes of action for which attorney
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fees are not permitted, the prevailing party may recover only
28 on the statutory cause of action. However, the joinder of
causes of action should not dilute the right to attorney’s fees.
1
Such fees need not be apportioned when incurred for
2 representation of an issue common to both a cause of action for
which fees are permitted and one for which they are not. All
3 expenses incurred on the common issues qualify for an award.
When the liability issues are so interrelated that it would be
4 impossible to separate them into claims for which attorney fees
are properly awarded and claim for which they are not, then
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allocation is not required.
6
Graciano v. Robinson Ford Sales, Inc., 50 Cal. Rptr. 3d 273, 287 (Cal. Ct. App. 2006)
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(cleaned up) (quoting Akins v. Enterprise Rent-A-Car Co., of San Francisco, 94 Cal. Rptr.
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2d 448, 452 (Cal. Ct. App. 2000). The “interrelated issue” may be legal or factual. Atkins,
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94 Cal. Rptr. 2d at 452.
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Voisenat seeks fees reflecting 122.58 hours of his time. Some of this time is clearly
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unrelated to the §§ 1942.4 and 1942.5 claims: $85 for 0.2 hours reviewing a letter for
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insurance coverage on an unrelated claim and $425 for one hour preparing motion in
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limine #4. This reduces Voisenat’s base lodestar amount to $51,586.50. The court also
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reasonably estimates that 20% of Voisenat’s hours relate to the one claim that Mitchell
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prevailed on, reducing his base lodestar amount to $41,269.20.8 The court cannot
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reasonably further reduce these fees. Mitchell asserted common law and statutory
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retaliation and habitability claims which shared common nucleuses of operative facts. His
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negligence, breach of contract, City of Oakland ordinance, nuisance and other claims also
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relied on these factual allegations. While Voisenat’s litigation of the § 1942.4 claim ended
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with this court’s entry of its Rule 7052(c) order, Colbert’s case in chief primarily addressed
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the retaliation claims. The court cannot untangle these claims. Colbert is therefore
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awarded $41,269.20 in fees.9
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Mitchell defensively contends that his dire financial condition is one of the “other
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circumstances in this case” that this court should consider when calculating Colbert’s fee
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8 The court may apply a negative multiplier to reflect this time. See Graciano v.
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Robinson Ford Sales, Inc., 50 Cal. Rptr. 3d at 290.
28 9 Colbert has not requested any fee enhancement or multiplier.
1 award. See Garcia v. Santana, 94 Cal. Rptr. 3d 299, 306 (Cal. Ct. App. 2009).
2 Notwithstanding Garcia’s lofty language, California’s intermediate appellate courts are
3 unsettled on this issue10, and absent direction from the California Supreme Court, this court
4 must equitably exercise its discretion when awarding fees. In this case, the court
5 respectfully declines to consider Mitchell’s finances. First, this court is also awarding
6 attorney’s fees to Mitchell due to his successful litigation of one of his § 1942(c) claims.
7 Mitchell was represented by experienced, able counsel throughout, and the risk of bearing
8 the burden of Colbert’s attorney’s fees did not prevent Mitchell from finding counsel and
9 vigorously litigating his claims. Second, just because Colbert was awarded fees does not
10 mean that she will be able to collect any of them directly from Mitchell. Mitchell is a
11 disabled senior citizen with little income and whose assets may well be exempt.
12 Mitchell’s Fees
13 Mitchell was represented by Tony Ruch of the Law Offices of Andrew Wolff, P.C.
14 Ruch is an able attorney with significant experience representing tenants in landlord/tenant
15 litigation. He billed 250 hours at $500/hour and is seeking a 1.5 multiplier. His requested
16 fees total $187,500.00 (after the multiplier), and he seeks $1,465.00 in costs. Ruch has
17 demonstrated that his hourly rate reflects the hourly rate that similarly experienced
18 attorneys doing similar work in Oakland would receive as compensation.
19 Tony Ruch also block billed his time, and the court faces the same difficulties with
20 his fees. To start, some of Ruch’s time was distinctly unrelated to Mitchell’s § 1942.5(c)
21 claim: 0.3 hours drafting expert disclosures, 0.2 hours preparing a subpoena for Mitchell’s
22 OHA file, 6 hours subpoenaing and reviewing his client’s VA file, and 5.7 hours preparing
23 his trial examination of several OHA employees. This reduces his base (pre-multiplier)
24 lodestar amount to $118,900. In addition, Mitchell prevailed on a specific allegation of
25 retaliatory conduct which had little factual overlap with his other claims. The court
26 believes that only 20% of Ruch’s pre-trial, trial, and post-trial work related to his client’s
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10 The court refers the parties to the Garcia dissent and the dicta in Walker v. Ticor
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Title Co. of California, 138 Cal. Rptr. 3d 820, 827-28 (Cal. Ct. App. 2012).
1 one successful claim, reducing his fees to $23,780.00. Given the length of this contested
2 matter and its difficulty, the court believes that a 1.5 multiplier is appropriate, bringing
3 Mitchell’s fee award to $35,670.00. The court has reviewed and awards Michell his costs.
4 Voisenat has informed this court that Colbert will propose a Chapter 11 plan that
5 will fully pay general, unsecured creditors. Accordingly, Colbert may offset her attorney’s
6 fee award against the damages, attorney’s fees, and costs that she owes to Mitchell.
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8 ***END OF ORDER***
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1 Case No. 19-41729
2 COURT SERVICE LIST
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Sonja Nicolle Colbert
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P.O. Box 31894
5 Oakland, CA 94604
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7 Andrew Wolff on behalf of Creditor Cleveland Mitchell
Law Offices of Andrew Wolff, PC
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1615 Broadway, 4th Floor
9 Oakland, CA 94612
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Other recipients are ECF participants
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