Judge: Ashfaq G. Chowdhury, Case: 21GDCV00995, Date: 2024-02-02 Tentative Ruling

Case Number: 21GDCV00995    Hearing Date: April 5, 2024    Dept: E

Hearing Date: 04/05/2024 – 8:30am
Case No. 21GDCV00995
Trial Date: N/A
Case Name: JPMORGAN CHASE BANK, N.A. v. FLEXVISUAL, INC., et al.

[TENTATIVE RULING– MOTION FOR ATTORNEY FEES]

RELIEF REQUESTED¿ 
Plaintiff, JPMorgan Chase Bank, N.A., moves this Court for an award of attorney fees in the sum of $27,469.11 in the above entitled action as against Defendant Flexvisual, Inc. and Defendant, Chad R. Williams pursuant to CCP §1033.5(c)(5) and applicable case law on the ground that Plaintiff is entitled to recover their attorney fees incurred as an element of costs pursuant to the Contract and Guaranty.

The Motion will be based on this Notice, the Memorandum of Points and Authorities, the Declaration of Todd S. Garan filed concurrently herewith, the complete files and records on file herein and upon such other and further oral and documentary evidence as may be presented at the time of the hearing on this Motion.

PROCEDURAL
Moving Party:  Plaintiff, JPMorgan Chase Bank, N.A.
Responding Party: No Opposition by either Defendant

16/21 Day Lapse (CCP §12c and §1005(b): Ok
Proof of Service Timely Filed (CRC, Rule 3.1300): Ok

Correct Address (CCP §1013, §1013a): No – Plaintiff allegedly served both Defendants via mail. Neither Defendant appears to be represented by counsel.

As to Flexvisual, the mailing address on the proof of service for this motion matches the mailing address on the Court’s file in eCourt.

As to Chad Williams, the mailing address on the proof of service indicates a Nevada address, but that address does not match the address on file in eCourt. Further, the Court notes how on 8/26/2022 a motion to be relieved as counsel was filed as to Chad Williams, and the motion listed an address for Chad R. Williams as 6000 De Soto Ave. #144, Woodland Hills, CA 91367. Moving Plaintiff needs to address why there are so many addresses for Chad Williams – this motion was served at a Nevada Address, eCourt lists an address for Chad in La Crescenta, and a prior motion lists Chad’s address in Woodland Hills. The Movant needs to point to specific proof in the Court’s own record that demonstrates both of these parties’ addresses.

Moving Papers: Notice/Motion; Garan Declaration; Proposed Order
Opposition Papers: No Opposition
Reply Papers: No Reply

TENTATIVE RULING
On February 2, 2024, this Court granted Plaintiff’s motion for summary judgment in favor of Plaintiff and against Defendants Flexvisual and Chad R. Williams.

Plaintiff moves this Court for an award of attorney fees in the sum of $27,469.11 in the above entitled action as against Defendant Flexvisual, Inc. and Defendant, Chad R. Williams pursuant to CCP § 1033.5(c)(5) and applicable case law on the ground that Plaintiff is entitled to recover their attorney fees incurred as an element of costs pursuant to the Contract and Guaranty.

Plaintiff argues that it is the prevailing party under CCP § 1032(a)(4).

CCP §1032(a)(4) states:  “Prevailing party” includes the party with a net monetary recovery, a defendant in whose favor a dismissal is entered, a defendant where neither plaintiff nor defendant obtains any relief, and a defendant as against those plaintiffs who do not recover any relief against that defendant. If any party recovers other than monetary relief and in situations other than as specified, the “prevailing party” shall be as determined by the court, and under those circumstances, the court, in its discretion, may allow costs or not and, if allowed, may apportion costs between the parties on the same or adverse sides pursuant to rules adopted under Section 1034. (CCP § 1032(a)(4).)

Plaintiff argues it is the prevailing party because it was the party with a net monetary recovery because the summary judgment was entered in favor of Plaintiff.

Plaintiff also cites § 1032(b) which states, “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.” (CCP §1032(b).)

Plaintiff also cites to § 1033.5(a)(10) which states, “The following items are allowable as costs under Section 1032: Attorney’s fees, when authorized by any of the following: (A) Contract. (B) Statute. (C) Law.” (CCP § 1033.5(a)(10).)

Plaintiff then argues that the contracts at issue, the Contract and the Guaranty each contain attorney’s fees and costs provisions, therefore, Plaintiff argues it can recover attorney’s fees and costs from both Defendants based on the contracts.

At the hearing, Plaintiff is to point the Court to the specific provisions, specific exhibits, and specific language that allows it to recover attorney’s fees and costs as to each Defendant.

The Court has concerns about awarding costs because the Notice of Motion only requests attorney’s fees in the sum of $27,469.11 and makes no mention of costs. Costs of $5,328.30 are not mentioned until the memorandum and the conclusion. Further, the Plaintiff is to address whether it has to comply with CRC, rule 3.1700(a)(1), and if Plaintiff has to comply with it, how it complied with it.

The Court notes that Plaintiff did not file a memorandum of costs with the Court. Plaintiff simply included a memorandum of costs in its motion for attorney’s fees, but no memorandum of costs was filed with the Court. “A prevailing party who claims costs must serve and file a memorandum of costs within 15 days after the date of service of the notice of entry of judgment or dismissal by the clerk under Code of Civil Procedure section 664.5 or the date of service of written notice of entry of judgment or dismissal, or within 180 days after entry of judgment, whichever is first. The memorandum of costs must be verified by a statement of the party, attorney, or agent that to the best of his or her knowledge the items of cost are correct and were necessarily incurred in the case.” (CRC, rule 3.1700(a)(1).)

Plaintiff is also to address the service issues of the motion itself that the Court pointed out.