Opinion
1:19-cv-00140-DAD-EPG
05-24-2022
BMO HARRIS BANK, N.A., Plaintiff, v. BILLAN-PAHAL CORPORATION, et al., Defendant.
ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND CLOSING THIS CASE (DOC. NO. 53)
This matter is before the court on plaintiff's unopposed motion filed on March 25, 2021 seeking summary judgment in its favor as to its claims asserted in counts I and IV of its complaint against defendant Bhanjo Pahal. (Doc. No. 53.) Pursuant to General Order No. 617 addressing the public health emergency posed by the COVID-19 pandemic, plaintiff's motion was taken under submission on the papers. (Doc. No. 58.) However, after defendant failed to timely file an opposition or statement of non-opposition to the pending motion pursuant to Local Rule 230(c), the court set the motion for a hearing on April 12, 2022, at which counsel for both plaintiff and defendant appeared. (See Doc. Nos. 60, 61.) After that hearing, on April 21, 2022, counsel for defendant Bhanjo Pahal filed a statement of non-opposition to the pending motion for summary judgment and confirmed that defendant had been advised that the motion sought entry of judgment against her in an amount in excess of $1,305,140.09. (Doc. No. 62.) For the reasons explained below, the court will grant plaintiff's motion for summary judgment.
The undersigned apologizes for the excessive delay in the issuance of this order. This court's overwhelming caseload has been well publicized and the long-standing lack of judicial resources in this district long-ago reached crisis proportion. While that situation was partially addressed by the U.S. Senate's confirmation of a district judge for one of this court's vacancies on December 17, 2021, another vacancy on this court with only six authorized district judge positions was created on April 17, 2022. For over twenty-two months the undersigned was left presiding over approximately 1, 300 civil cases and criminal matters involving 735 defendants. That situation resulted in the court not being able to issue orders in submitted civil matters within an acceptable period of time and continues even now as the undersigned works through the predictable backlog. This has been frustrating to the court, which fully realizes how incredibly frustrating it is to the parties and their counsel.
BACKGROUND
A. Procedural Background
On March 26, 2019, plaintiff filed the operative first amended complaint (“FAC”) in this action, with an amended exhibit thereto filed on October 2, 2019. (Doc. Nos. 5, 18.) The FAC asserts various breach of contract claims against Billan-Pahal Corporation and three individuals, Gurdeep Billan, Ranjodh Billan, and Bhajno Pahal. (Doc. No. 5 at 1.) On November 8, 2019, plaintiff filed a notice of voluntary dismissal without prejudice as to named defendants Billan-Pahal Corporation, Gurdeep Billan, and Ranjodh Billan after each of those defendants filed for bankruptcy in the United States Bankruptcy Court for the Eastern District of California. (Doc. Nos. 13 at 1; 14 at 1; 15 at 1; 19.) On November 13, 2019, defendants Billan-Pahal Corporation, Gurdeep Billan, and Ranjodh Billan were terminated as defendants in this action without prejudice in light of the filing of the notice of dismissal. (Doc. No. 23 at 1.) Accordingly, defendant Bhanjo Pahal is the only remaining defendant in this action and plaintiff's two claims for breach of contract asserted against defendant Bhanjo Pahal are the only remaining claims. (See Doc. No. 5 at 19, 21.)
On March 25, 2021, plaintiff filed the pending motion, seeking summary judgment in its favor and against defendant Bhanjo Pahal “in the amount of $1,305,140.09 as of January 22, 2022, plus interest accruing on the principal amount at the rate of $392.65 per diem from January 22, 2021, plus attorneys' fees and expenses.” (Doc. No. 53.) As noted above, counsel on behalf of defendant Bhanjo Pahal filed a statement of non-opposition to the pending motion for summary judgment on April 21, 2022. (Doc. No. 62.)
The relevant facts that follow are derived primarily from plaintiff's statement of undisputed facts (Doc. No. 54 (“UF”)). In her statement of non-opposition to the pending motion, defendant did not admit or dispute any of the facts plaintiff proffered. (See Doc. No. 62.) Due to defendant's non-opposition to the pending motion, the facts in this section are treated as undisputed for purposes of resolution of the pending motion. See Fed.R.Civ.P. 56(e).
In October 2012, defendant Bhanjo Pahal along with the now dismissed co-defendants and non-party General Electric Capital Corporation (“GECC”) entered into the first of several loan agreements, whereby GECC agreed to finance the purchase of equipment for use in defendant's business. (UF ¶ 1.) Over the course of the next year, defendant Pahal entered into four additional loan agreements with GECC, with defendant Bhanjo Pahal's total repayment obligations under these five agreements ranging in amounts from $72,347.40 to $192,058.20. (UF ¶¶ 1-5.) In October 2015, defendant Bhanjo Pahal entered into a total of six loan agreements with non-party Transportation Truck and Trailer Solutions, LLC (“TTTS”), whereby TTTS agreed to finance defendant's purchase of equipment for use in defendant's business. (UF ¶¶ 6-11.) The amount of defendant's loan obligations under each of these six agreements was $42,213.60. (UF ¶¶ 611.) Defendant Bhanjo Pahal's total loan obligations under these eleven agreements (collectively, the “Pahal Loan Agreements”) totaled $861,097.80. (See UF ¶¶ 1-11.)
In November 2014, defendant Bhanjo Pahal served as a guarantor on six loan agreements between non-party GE Capital Commercial Inc. (“GECCI”) and Billan-Pahal Corporation, whereby GECCI agreed to finance Billan-Pahal Corporation's purchase of equipment for use in its business. (UF ¶¶ 12-17, 23.) Similarly, in October 2015, defendant Bhanjo Pahal served as a guarantor on four loan agreements between TTTS and Gurdeep Billan, whereby TTTS agreed to finance Bhanjo Billan's purchase of equipment for use in Billan's business. (UF ¶¶ 18-21.) Under these agreements, defendant Bhanjo Pahal guaranteed Billan-Pahal Corporation's and Billan's “full and timely performance of all their present and future liabilities to, among others, GECC, GECCI, TTTS, and their respective successors and assigns.” (UF ¶ 22.) The loan obligations on these ten agreements (collectively, the “Pahal Guaranties”) ranged from $87,242.40 to $197,445.60, with a total guaranty obligation of $1,860,636. (See UF ¶¶ 12-21.)
In December 2015, GECC, GECCI, and TTTS transferred and assigned to plaintiff all their rights under the accounts associated with defendant Bhanjo Pahal, Billan-Pahal Corporation, and Gurdeep Billan. (UF ¶ 23.) In February 2016, plaintiff, defendant Bhanjo Pahal, Billan-Pahal Corporation, and Gurdeep Billan entered into twenty-one modification agreements modifying the terms of the loan agreements underlying the Pahal Loan Agreements and Pahal Guaranties (collectively, the “Agreements”). (UF ¶ 24.)
The terms of the Agreements specify that failure to make a payment when due is considered an event of default. (UF ¶ 25.) In the event of default, plaintiff may accelerate amounts due and may take possession of the property underlying the agreements and sell them in a commercially reasonable manner to pay down the balance remaining on the accounts. (UF ¶¶ 28, 35.) In addition, in the event of default under the Agreements, defendant is obligated to pay: late charges and other fees; interest at the contract rate on any amounts due; plaintiff's expenses associated with the retaking and resale of the property underlying the agreements; heightened “default” interest on unpaid amounts at a rate of eighteen percent (18%) per year or the maximum rate permitted by law; and plaintiff's attorneys' fees and costs associated with enforcing its rights under the agreements. (UF ¶¶ 32-34, 36, 38.)
As of the date of plaintiff's motion, all twenty-one agreements in the Pahal Loan Agreements and Pahal Guaranties are in default, without any payments having been made since January and February 2017. (UF ¶¶ 26-27.) Prior to filing this action, plaintiff took possession of the vehicles that were the subject of the Pahal Loan Agreements and Pahal Guaranties and sold each vehicle “in a commercially reasonable manner[] and credited the net proceeds of each sale to the amounts due and owing under the Agreements, ” but each of the twenty-one agreements still reflected an outstanding balance owed to plaintiff. (UF ¶ 29.) On May 31, 2018, “[p]ursuant to the terms of the Agreements, Plaintiff elected to accelerate the entire amounts due, ” which totaled $785,332.60 in principal and $134,617.81 in unpaid late charges, fees, interest at the contract rate, and costs of collection. (UF ¶¶ 30-35.) From May 31, 2018 through February 5, 2021, the amount of accrued and unpaid default interest due under the agreements was $385,189.65. (UF ¶ 37.) After applying the proceeds of the sale or other disposition of the vehicles underlying the Agreements, the amount due and owing on the agreements as of February 5, 2021, excluding attorneys' fees and expenses, was approximately $1,305,140.09. (UF ¶ 40.)
Plaintiff has made demand upon defendant Bhanjo Pahal to pay the amounts due under the Agreements, and on December 28, 2018, plaintiff, through counsel, made its final demand on defendant that she pay the amounts due under the agreements. (UF ¶¶ 41-42.) Nonetheless, defendant Bhanjo Pahal has “failed and refused to pay the amount due and owing.” (UF ¶ 43.)
LEGAL STANDARD
Summary judgment is appropriate when the moving party “shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a).
In summary judgment practice, the moving party “initially bears the burden of proving the absence of a genuine issue of material fact.” In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). The moving party may accomplish this by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials” or by showing that such materials “do not establish the absence or presence of a genuine dispute, or that the adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1)(A), (B). “A trial court can only consider admissible evidence in ruling on a motion for summary judgment.” Orr v. Bank of Am., NT & SA, 285 F.3d 764, 773 (9th Cir. 2002).
If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). However, “[a] district court may not grant an unopposed motion for summary judgment solely because the opposing party has failed to file an opposition.” Canal Ins. Co. v. YMV Transp., Inc., 867 F.Supp.2d 1099, 1103-04 (W.D. Wash. 2011); see also Henry v. Gill Indus., Inc., 983 F.2d 943, 950 (9th Cir. 1993) (“A local rule that requires the entry of summary judgment simply because no papers opposing the motion are filed or served, and without regard to whether genuine issues of material fact exist, would be inconsistent with Rule 56, hence impermissible under Rule 83.”); White by White v. Pierce County, 797 F.2d 812, 815 (9th Cir. 1986) (“Even in the absence of opposing affidavits, summary judgment is inappropriate where the movant's papers are insufficient on their face.”).
DISCUSSION
As described above, plaintiff moves for summary judgment as to the two remaining claims in the FAC: (1) breach of contract against defendant Bhanjo Pahal for breach of the Pahal Loan Agreements and (2) breach of contract against defendant Bhanjo Pahal for breach of the Pahal Guaranties. (Doc. No. 5 at 19, 21.)
As a preliminary matter, the court notes that the parties' rights and obligations under all of the Pahal Loan Agreements are governed by the substantive laws of Texas as provided for in the agreement. (Doc. Nos. 55-1 at 5, 15, 24, 33, 42, 51; 55-2 at 5, 14, 23, 32, 41.) Of the ten Pahal Guaranties, four are governed by the substantive laws of Texas (Doc. No. 55-4 at 5, 14, 23, 32), and six are governed by the substantive laws of Utah. (Doc. No. 55-3 at 5, 14, 23, 32, 41, 50.)
A. Loan Agreements and Guaranties Governed by Texas Law
Under Texas law, “[t]he essential elements in a suit for breach of contract are: (1) the existence of a valid contract; (2) the plaintiff performed or tendered performance; (3) the defendant breached the contract; and (4) the plaintiff was damaged as a result of the breach.” Bank of Tex. v. VR Elec., Inc., 276 S.W.3d 671, 677 (Tex. App. 2008); see also Smith Int'l, Inc. v. Egle Grp., LLC, 490 F.3d 380, 387 (5th Cir. 2007).
“The elements needed to form a valid and binding contract in Texas are well-established: (1) offer, (2) acceptance in strict compliance with the offer's terms, (3) a meeting of the minds, (4) consent by both parties, (5) execution and delivery, and (6) consideration.” DoskocilMfg. Co., Inc. v. Sang Nguyen, No. 2:16-cv-00382, 2017 WL 2806322, at *3 (Tex. App. June 29, 2017); see also Ferrant v. Lewis Brisbois Bisgaard & Smith, L.L.P., No. 5:19-cv-01552, 2021 WL 2963748, at *3 (Tex. App. July 14, 2021). Plaintiff argues that the Agreements are valid because defendant “executed the [Pahal] Loan Agreements, and monies were advanced per those agreements.” (Doc. No. 56 at 4.) In support of its motion for summary judgment, plaintiff have attached defendant's responses to plaintiff's special interrogatories, in which defendant stated that plaintiff “knew that [defendant] only reads, writes and speaks Punjabi but failed to provide an agreement to [defendant] that she could read and did not provide an interpreter.” (Doc. No. 54-1 at 5-6.) However, plaintiff contends that it is immaterial whether defendant did not understand what she was signing. (Doc. No. 56 at 3-4.) According to plaintiff, under the law of Texas, “an inability to understand English does not preclude a meeting of the minds . . . . a contract signatory's inability to understand English is not a defense to contract formation.” Doskocil Mfg. Co., 2017 WL 2806322, at *5; see also In re Ledet, No. 4:04-cv-00411, 2004 WL 2945699, at *6 (Tex. App. Dec. 22, 2004) (“Whether a party is illiterate or incapable of understanding English is not a defense to a contract.”).
Citation to these unpublished Texas Court of Appeals opinions is appropriate pursuant to Tex.R.App.P. 47.7(b).
The uncontroverted evidence presented by plaintiff on summary judgment establishes that: defendant Bhanjo Pahal signed the Agreements; plaintiff or its predecessors-in-interest advanced funds to defendant (and the signatories of the Pahal Guaranties) pursuant to the Agreements; and defendant Bhanjo Pahal made payments toward the loan balances pursuant to at least some of the Agreements. (See, e.g., Doc. Nos. 55-1 at 39-46; 55-4 at 39-39.) Thus, based on the undisputed evidence before it on summary judgment, the court concludes that the Agreements constitute valid contracts and that plaintiff tendered performance under the Agreements.
As to the third element of a breach of contract claim under Texas law, “[a] breach occurs when a party fails to perform a duty required by the contract.” Smith Int'l, 490 F.3d at 387 (internal quotation omitted). “[Determining whether a party has breached a contract is a question of law for a trial court, rather than a question of fact for a jury, when the facts of the parties' conduct are undisputed or conclusively established.” Kilgore Exploration, Inc. v. Apache Corporation, No. 1:13-cv-00347, 2015 WL 505275, at *7 (Tex. App. Feb. 5, 2015). Here, it is undisputed that defendant Bhanjo Pahal failed to make payments due under the Agreements beginning in January and February 2017 and that defendant has remained in default under the Agreements since that time. (UF ¶ 27.) Accordingly, the court finds that in light of the undisputed evidence plaintiff has established on summary judgment that defendant Bhanjo Pahal breached the Agreements. See, e.g., Kilgore, 2015 WL 505275, at *7-8 (finding that a party's breach is “conclusively proved” when “it is undisputed that [the party] did not tender payment under the” relevant contract).
Finally, “[a]n essential element of a breach of contract action is the existence of a causal connection between the alleged breach and the damages sought.” Castillo v. Beneficial Fin. I. Inc., No. 3:13-cv-04554-M, 2017 WL 2374441, at *6 (N.D. Tex. May 15, 2017), report and recommendation adopted, 2017 WL 2377952 (N.D. Tex. May 31, 2017). Plaintiff asserts that it has incurred damages due to defendant's default and continues to accrue interest on the balance owed under the Agreements. (Doc. No. 56 at 4-5.) Indeed, it is undisputed here on summary judgment that plaintiff has been damaged by defendant Bhanjo Pahal's failure to make the payments due and that the parties agreed that, under the Agreements, defendant would be obligated to pay heightened interest on accelerated debt as well as other fees in the event of default. (See UF ¶¶ 31, 36.)
Based on the undisputed evidence presented on summary judgment, plaintiff is entitled to summary judgment in its favor on its breach of contract claims brought against defendant as to the parties' agreements governed by Texas law.
B. Guaranties Governed by Utah Law
“Under Utah Law, the elements of a claim for breach of contract are: (1) a valid contract; (2) performance by the plaintiff hereunder; (3) breach of the contract by the defendant; and (4) damages to the plaintiff.” BMO Harris BankN.A. v. Starport Transp., Inc., No. 6:18-cv-03388-MDH, 2019 WL 3976319, at *3 (W.D. Mo. June 11, 2019) (citing Simmons Media Grp. v. Waykar, LLC, 335 P.3d 885, 890 (Utah Ct. App. 2014)).
Due to the similarities between the elements of a breach of contract claim under Utah and Texas law, the court finds that for the same reasons that plaintiff is entitled to summary judgment on its breach of contract claim as to the agreements governed by Texas law, plaintiff is likewise entitled to summary judgment as to the agreements governed by Utah law. See also BMO Harris Bank N.A. v. ICS 1 Ltd., No. 2:17-cv-00760-GCS-KAJ, 2018 WL 4680583, at *2 (S.D. Ohio Sept. 28, 2018) (granting the plaintiff bank's motion for summary judgment on its breach of contract claim under Utah state law where defendant defaulted on loan payments); BMO Harris BankN.A. v. J-Lin Trucking, Inc., No. 4:17-cv-00045-JTM-JEM, 2019 WL 1332174, at *3 (N.D. Ind. Mar. 25, 2019) (nothing that “[t]here is no relevant difference in the law of . . . Texas, and Utah as it relates to . . . breach of contract claim[s]”).
Accordingly, the court will grant plaintiff's motion for summary judgment. Having determined that plaintiff is entitled to judgment in its favor, the court now turns to the amount of damages and the amount of attorneys' fees to be awarded.
C. Damages and Attorneys' Fees
At the April 12, 2022 hearing on the pending motion, the court expressed its concern over an apparent inconsistency in the amount of damages plaintiff seeks. In its motion, plaintiff seeks damages in the amount of $1,305,140.09 as of January 22, 2021, plus interest on the principal amount at a rate of $392.65 per diem from that date forward. (Doc. No. 53 at 1-2.) However, in plaintiff's statement of undisputed facts, it asserts that the amount due and owing under the Agreements is $1,305,140.09, calculated as of February 5, 2021. (UF ¶ 40.) Given that plaintiff argues that it is entitled to interest on a per diem basis-including on the days between January 22, 2021 and February 5, 2021-the identical damages figure for both dates appears to indicate that at least one of the amounts provided to the court is in error. At the hearing, plaintiff's counsel stated that this inconsistency was likely due to a scrivener's error. Accordingly, the court directed plaintiff to file supplemental briefing regarding damages and attorneys' fees sought in this case, which plaintiff did on April 29, 2022 (Doc. No. 64) and May 12, 2022. (Doc. No. 68.)
1. Damages
Plaintiff seeks damages totaling $1,486,544.36 in this case, broken down as follows: (1) $785,332.60 in principal on the twenty-one Agreements; (2) $134,617.81 in “unpaid late charges, other fees, interest at the contract rate, and costs of collection”; and (3) $556,593.95 in the heightened eighteen percent (18%) default interest as provided for in the Agreements. (Doc. No. 68 at ¶¶ 34, 38-40, 43.) Plaintiff has provided detailed information listing the dates of default for each of the Agreements and the daily amount of default interest that has accrued on each of the Agreements. (See, e.g., id. at ¶ 40.) According to plaintiff's sworn declaration, these amounts are accurate as of May 13, 2022. (Id. at ¶ 43.)
In light of this record, the court finds it appropriate to award plaintiff $1,486,544.36 in damages. See BMO Harris Bank N.A. v. BKSG Transp. LLC, No. 1:17-cv-00586-LJO-BAM, 2018 WL 4297854, at *9 (E.D. Cal. Sept. 10, 2018) (awarding damages with a default interest rate of 18% as specified by underlying agreements between parties governed by Texas and Utah law), report and recommendation adopted, 2018 WL 6822614 (E.D. Cal. Sept. 27, 2018); see also BMO Harris Bank N.A. v. Richland Express, Inc., No. 2:17-cv-00149-KGB, 2018 WL 8299883, at *2 n.6 (E.D. Ark. Sept. 28, 2018) (concluding that the 18% interest rate was valid because “Texas law does not allow contracts such as the Agreements to have an interest rate greater than 18% per year” and “Utah law gives the parties freedom to agree through contract to any rate of interest for a loan of goods.”).
2. Attorneys' Fees
Plaintiff also requests an award of $34,950.00 in attorneys' fees and costs in connection with this action. (Doc. No. 64 at ¶ 4.) BMO Harris asserts that under the Agreements, defendant is obligated to pay the attorneys' fees and costs incurred by plaintiff in the enforcement of its rights under the Agreements. (UF ¶ 38.) In support of its request for attorneys' fees, BMO has submitted a declaration by Christopher Miles, counsel for BMO Harris from Husch Blackwell LLB, describing the attorneys' fees incurred in this action. (Doc. No. 64.)
“Federal courts apply state law in determining whether to award attorneys' fees in an action on a contract.” Doan v. Singh, No. 1:13-cv-00531-LJO-SMS, 2013 WL 5718720, at *3 (E.D. Cal. Oct. 18, 2013). Ordinarily, “[a] federal court sitting in diversity applies the law of the forum state regarding an award of attorneys' fees.” Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 883 (9th Cir. 2000). Here, however, that analysis is less straightforward because the Agreements, as described above, contain choice-of-law provisions in favor of Texas and Utah law. (See, e.g., Doc. Nos. 55-1 at 15; 55-3 at 14.) However, as to the issue of attorneys' fees, this court determines that there is not a conflict between California, Texas, and Utah law. Compare Cal. Civ. Code. § 1717(a) (“In any action on 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, . . . shall be entitled to reasonable attorney's fees in addition to other costs”) with Tex. Civ. Prac. & Rem. Code § 38.001(b) (“A person may recover reasonable attorney's fees from an individual or organization . . . in addition to the amount of a valid claim and costs, if the claim is for . . . an oral or written contract.”), and Utah Code Ann. § 78B-5-826 (“A court may award costs and attorney fees to either party that prevails in a civil action based upon any promissory note, written contract, or other writing . . . when the provisions [thereof] allow at least one party to recover attorney fees.”); see also Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818 (Tex. 1997) (listing factors for determining the reasonableness of attorneys' fees under Texas law); Dixie State Bank v. Bracken, 764 P.2d 985, 989-90 (Utah 1988) (listing factors for determining the reasonableness of attorneys' fees under Utah law); PLCM Grp. v. Drezler, 22 Cal.4th 1084, 1096 (2000) (listing factors for determining the reasonableness of attorneys' fees under California law). For this reason, and in the interests of judicial efficiency, the court will apply California law in addressing plaintiff's request for an award of attorneys' fees. See Richland Express, 2018 WL 8299883, at *9 (applying law of the forum state, Arkansas, where “there is not a true conflict between Arkansas and Texas law”); BKSG Transp, 2018 WL 4297854, at *9-10 (applying California law to determine reasonableness of attorneys' fees where California, Texas, and Utah law all provide for reasonable attorneys' fees in connection with breach-of-contract claim), report and recommendation adopted, 2018 WL 6822614 (E.D. Cal. Sept. 27, 2018).
The Pahal Loan Agreements provide that
Debtor hereby agrees to indemnify, defend and hold harmless Lender and its Affiliates . . . from and against any and all losses, disputes, claims, expenses (including, without limitation, legal expenses), damages and liabilities of whatsoever kind and nature arising out of, in connection with, or relating to . . . this Agreement or any other document related hereto. If allowed by law, the legal expenses shall include the amount of any flat fee, retainer, contingent fee or the hourly charges of any attorney retained by Lender in enforcing any of Lender's rights hereunder or in the prosecution or defense of any litigation related to this Agreement or the transactions contemplated by this Agreement.(See, e.g., Doc. No. 55-2 at 41 (emphasis added).) Under the Pahal Guaranties,
If the [borrower] fails to pay the indebtedness promptly as the same becomes due, or otherwise fails to perform any obligation under any of the Agreements, each Guarantor agrees to pay on demand the entire indebtedness and all losses, costs, attorneys'fees and expenses which may be suffered by GE Capital by reason of the Company's default or the default of any Guarantor hereunder.(Doc. No. 55-4 at 38-39 (emphasis added).) Accordingly, and in light of the court's finding that plaintiff is entitled to judgment in its favor in this action, the court likewise concludes that the terms of the Agreements contractually provide for an award of attorneys' fees and costs to plaintiff.
The court notes that the attorneys' fees provision in the Pahal Loan Agreements-which is buried in a paragraph of general terms and specifically included in a provision related to indemnification-differs from contract language on which this court has previously found attorneys' fees to be warranted. See, e.g., Firstsource Solutions USA, LLC v. Tulare Reg. Med. Center, No. 1:15-cv-01136-DAD-EPG, 2019 WL 2725336, at *3 (E.D. Cal. July 1, 2019) (finding that contract provided for attorneys' fees where the underlying agreement stated in a general terms paragraph that “[i]n the event of any default of the payment provision herein, [defendant] agrees to pay, in addition to any defaulted amount, all actual legal costs, including but not limited to, attorney fees, collection costs and court costs [plaintiff] has incurred to collect the overdue amount.”). However, based on the plain language of the provision here, and taken into consideration alongside the unambiguous attorneys' fees language contained in the Pahal Guaranties, the court sees no reason to depart from the conclusion of other courts which have held that agreements with this same exact language (with the exception of party names) validly provide for attorneys' fees. See, e.g., BMO Harris Bank N.A. v. CHD Transport Inc., No. 1:17-cv-00625-DAD-BAM, 2018 WL 4242355, at *7-8 (E.D. Cal. Sept. 6, 2018), recommendation adopted, 2018 WL 6822615 (E.D. Cal. Sept. 27, 2018); Richland Express, 2018 WL 8299883, at *9; Starport Transportation, 2019 WL 3976319, at *3; see also Alki Partners, LP v. DB Fund Servs., LLC, 4 Cal.App. 5th 574, 601-02 (Cal.Ct.App. 2016) (noting that indemnity agreements generally do not allow for the recovery of attorney fees incurred in an action for breach of contract between the parties to that agreement, but that an exception exists where the indemnity provision includes express language providing for attorneys' fees incurred in enforcing the agreement); Cal. Civ. Code § 1717(a) (“Where a contract provides for attorneys' fees . . . that provision shall be construed as applying to the entire contract . . .”); C & C Properties v. Shell Pipeline Co., No. 1:14-cv-01889-DAD-JLT, 2019 WL 6341047, at *17-18 (E.D. Cal. Nov. 27, 2019) (explaining the history of the adoption of Cal. Civ. Code § 1717(a) as a response to a California Court of Appeals decision holding that an attorneys' fee provision in the contract at issue did not cover plaintiffs' specific claim) (citing Sciarrotta v. Teaford Custom Remodeling, Inc., 110 Cal.App.3d 444 (1980)). Moreover, even if the Pahal Loan Agreements did not provide for an award of attorneys' fees upon default, “there is no logical way to separate the attorney time expended litigating” the breach of the Pahal Guaranties from that spent litigating the breach of the Pahal Loan Agreements. Firstsource, 2019 WL 2725336, at *3 (declining to allocate attorney time between time spent litigating the plaintiff's claim and defending against defendant's counterclaim and finding that plaintiff may collect attorneys' fees for time expended on both fronts).
Having determined that plaintiff is entitled to attorneys' fees, the court must next address whether plaintiff's purported fees are reasonable. See Cal. Civ. Code § 1717(a). The court determines the amount of reasonable attorney's fees by applying the “lodestar” method. Ferland v. Conrad Credit Corp., 244 F.3d 1145, 1149 n.4 (9th Cir. 2001). The lodestar is calculated by multiplying the number of hours the prevailing party reasonably expended on the litigation by a reasonable hourly rate. Id. “In determining reasonable hours, counsel bears the burden of submitting detailed time records justifying the hours claimed to have been expended.” Chalmers v. City of Los Angeles, 796 F.2d 1205, 1210 (9th Cir. 1986). “Where the documentation of hours is inadequate, the district court may reduce the award accordingly.” Hensley v. Eckerhart, 461 U.S. 424, 433 (1983), superseded by the Prison Litigation Reform Act on other grounds. A district court should also exclude from the lodestar fee calculation any hours that were not “reasonably expended, ” such as hours that are excessive, redundant, or otherwise unnecessary. See id. at 434; see also J & J Sports Prods., Inc. v. Napuri, No. 4:10-cv-04171-SBA, 2013 WL 4428573, at *1 (N.D. Cal. Aug. 15, 2013). “Next, the district court must determine a reasonable hourly rate, considering the experience, skill, and reputation of the attorney requesting fees.” J & J Sports Prods., Inc., 2013 WL 4428573, at *2. “The reasonable hourly rate is the rate prevailing in the community for similar work.” Gilliam v. Levine, No. 2:18-cv-02580-PSG-MRW, 2022 WL 401462, at *4 (C.D. Cal. Jan. 25, 2022); see also Chalmers, 796 F.2d at 1210. “Generally, when determining a reasonable hourly rate, the relevant community is the forum in which the district court sits.” Gonzalez v. City of Maywood, 729 F.3d 1196, 1205 (9th Cir. 2013).
Here, plaintiff's counsel, Husch Blackwell LLP, contends that three attorneys (a partner, a senior associate, and an associate) and two senior paralegals worked on this case, billing a total of 110.8 hours. (Doc. No. 64 at ¶¶ 5-9.) Counsel provides the total number of hours billed and the billing rate for each of those individuals as follows: the partner billed 15.6 hours at an hourly rate of $395.77; the senior associate billed 73.5 hours at an hourly rate of $327.85; the associate billed 18 hours at an hourly rate of $224.00; and the two senior paralegals collectively billed 3.7 hours at an hourly rate of $175.00. (Id.) Although counsel does not provide itemized billing entries for each of those individuals, counsel lists the various tasks they performed in this case, including reviewing loan documents, preparing the complaint, preparing initial disclosures, preparing bankruptcy notices, negotiating with defense counsel, and preparing the motion for summary judgment. (Id. at 10.) Plaintiff's counsel also states that it has incurred litigation costs in the amount of $1,483.64 in connection with this action, but counsel does not provide any description as to these costs or itemize them. (Id. at ¶ 11.)
The court finds that the 110.8 total hours billed in this case are reasonable in light of the legal services performed here and the apparent efficiency with which the tasks were completed. See Freshko Produce Servs., Inc. v. ILA Prods., Inc., No. 1:19-cv-00017-DAD-BAM, 2021 WL 4033176, at *4 (E.D. Cal. Sept. 3, 2021) (finding that 92.3 hours was a reasonable amount of time for plaintiff's counsel to have spent initiating and prosecuting a Perishable Agricultural Commodities Act action and seeking an entry of default judgment).
Similarly, the court finds that the rates employed by plaintiffs' counsel in calculating the lodestar are, for the most part, reasonable. See id. (finding that hourly rates of $350 for an attorney with over 30 years of experience, $250 for an attorney with seven years of experience, $250 for an attorney with 3 years of experience, and $150 for a paralegal with over 30 years of experience were reasonable); C & C Properties, 2019 WL 6341047, at *20-21 (concluding that an hourly rate of $400 is appropriate for an attorney who had been practicing law for twelve years “without any showing that [the attorney] had substantial relevant prior experience”; an hourly rate of $500 is appropriate for an attorney who had been practicing law for twelve years and made a showing of “substantial and notable prior work experience”; and an hourly rate of $300 is appropriate for an attorney with “slightly more” than five years of legal experience); Wallace v. Nationstar Mortgage, LLC, No. 2:18-cv-02768-JAM-DB, 2021 WL 1578196, at *4 (E.D. Cal. Apr. 22, 2021) (finding that an hourly rate of $305 is reasonable for attorneys with “multiple years” of relevant litigation experience). However, given that “[c]ourts in the Eastern District of California have determined that the prevailing hourly paralegal rate is ‘between $75 and $150, '” the court will reduce the hourly rate for the senior paralegals listed in plaintiff's counsel's declaration to $150. Sanchez v. Saul, No. 1:17-cv-01728-JLT, 2019 WL 2642511, at *5 (E.D. Cal. June 27, 2019); see also Wallace, 2021 WL 1578196, at *4 (lowering the hourly rate of paralegals to $110 per hour); C & C Properties, 2019 WL 6341047, at *21 (finding that an hourly rate of $100 is reasonable for paralegals where no details were provided as to their levels of experience). After reducing the hourly paralegal rate, a revised lodestar calculation yields $34,858.00 in attorneys' fees in this case.
Thus, the court concludes that the attorneys' fees incurred by plaintiff herein, including the hourly rate of its counsel and total number of hours expended in this litigation, and with the exception of the paralegal fees described above, are reasonable. However, because plaintiff's counsel has not provided any support for the $1,483.64 in litigation costs requested, the court will decline to award the requested amount of costs in this case. See, e.g., In re Media Vision Technology Securities Litigation, 913 F.Supp. 1362, 1366 (N.D. Cal. 1996) (“[T]he costs and expenses incurred by counsel are subject to a test of relevance and reasonableness in amount”); ICS 1 Ltd., 2018 WL 4680583, at *2 (declining to award attorneys' fees and costs where the moving party “provide[d] no foundation” for such an award).
As noted above, plaintiff argues in its motion for summary judgment that it is entitled to interest accruing on the principal amount at the rate of $392.65 per diem from early 2021 onward. (Doc. Nos. 53 at 2; 56 at 6.) Nonetheless, despite the court's instruction to plaintiff to file supplemental briefing regarding the updated amounts of damages sought in this case, plaintiff did not state in its amended damages declaration an updated request for per diem interest for any dates beyond May 13, 2022, the date for which plaintiff provided updated damages calculations in this case. Accordingly, the court declines to assess an additional per diem accrual of interest herei.e., beyond May 13, 2022-where plaintiff has not provided the necessary support for such a request.
CONCLUSION
For the reasons set forth above:
1. Plaintiff's motion for summary judgment (Doc. No. 53) is granted;
2. The Clerk of the Court is directed to enter judgment in favor of plaintiff in the amount of $1,486,544.366;
3. Plaintiff is awarded $34,858.00 in attorneys' fees; and
4. The Clerk of the Court is directed to close this case.
IT IS SO ORDERED.