Judge Carolyn M. Caietti, Case Number: 37-2019-00054054-CU-BC-CTL, Date: 2024-06-24 Tentative Ruling

Judge: Carolyn M. Caietti, Case: 37-2019-00054054-CU-BC-CTL, Date: 2024-06-24 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - June 13, 2024

06/14/2024 10:30:00 AM C-70 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Carolyn Caietti

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Civil - Unlimited Breach of Contract/Warranty Motion Hearing (Civil) 37-2019-00054054-CU-BC-CTL AWAD VS. MELENDEZ [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion for Attorney Fees, 01/04/2024

Defendant Ostolia Dominguez' Motion for Attorney Fees is DENIED.

Background Generally, Plaintiffs' Second Amended Complaint (SAC) alleges in March 2019, they entered into a residential lease and purchase option agreement with Defendant Melva Melendez at the 'Diza Property.' But before Plaintiffs entered the lease and purchase option and in February 2018, Defendant Maria Melendez recorded a Notice of Lis Pendens against the property, regarding a lawsuit brought by Maria Melendez against Melva Melendez (the Abuse Case). In September 2019, a San Diego Superior Court entered judgment in the Abuse Case against Melva Melendez, finding her liable of financial elder abuse and ordering a grant deed for the Diza Property executed by Maria Melendez in favor of Melva Melendez to be cancelled. Plaintiffs further allege Defendants, including Phil Melendez and Ostolia Dominguez, Maria Melendez's other daughter, then illegally dispossessed Plaintiffs from the property.

On October 13, 2023, the Court sustained Ostolia Dominguez' demurrer to the SAC without leave to amend. (ROA 296.) On November 2, 2023, the Court entered a judgment of dismissal after demurrer.

(ROA 309.) That ruling is on appeal. Dominguez now asks for $70,998.75 in attorney fees.

Discussion Civil Code section 1717(a) states in part: 'In any action on a 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, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney's fees in addition to other costs.' Non-signatories to contracts are sometimes entitled to attorney fees through Civil Code section 1717. To invoke this reciprocal contractual attorney fee statute, a party must show: (i) they were sued on a contract containing an attorney fee provision; (ii) they prevailed on the contract claims; and (iii) the opponent would have been entitled to recover attorney fees had the opponent prevailed. (Reynolds Metals Co. v. Alperson (1979) 25 Cal.3d 124, 128–129 [successful defense of a contract action brought on alter-ego theory]; Santisas v. Goodin (1998) 17 Cal.4th 599, 611; Brown Bark III, L.P. v. Haver (2013) 219 Cal.App.4th 809, 820-21 (Brown Bark).) Plaintiffs Sued Dominguez on a Contract Containing an Attorney Fee Provision Calendar No.: Event ID: TENTATIVE RULINGS

3072896 41 CASE NUMBER: CASE TITLE: AWAD VS. MELENDEZ [IMAGED] 37-2019-00054054-CU-BC-CTL As an initial matter, the parties do not dispute that an attorney fee provision exists in the lease attached as Exhibit 1 to the SAC. It reads in part: 'If the Tenant desires to continue to rent the premises after being in default or after being served for eviction or with Notice of termination, he agrees to reimburse the Landlord/Agent for actual costs incurred to enforce collection of rents...In all matters related to lawful possession of property or collections of rents, Tenant agrees to pay all Landlord's legal fees & court costs.' For all other legal matter, both Tenant and the Landlord/Agent agree that they will each pay their own legal costs and expenses of lawyers and court costs etc, and hereby hold the other harmless for such costs.' (SAC, at Ex. 1 - ¶ 23 at p. 5 (emphasis added).) The next question is whether this action was 'on a contract.' 'California courts liberally construe the term 'on a contract' as used within section 1717. As long as the action 'involves' a contract it is 'on the contract' within the meaning of section 1717.' (Hjelm v. Prometheus Real Estate Group, Inc. (2016) 3 Cal.App.5th 1155, 1168 [quotations and brackets omitted] (affirming attorney fee award to tenants under Civil Code section 1717 on claims including constructive eviction, breach of warranty of habitability and breach of the implied covenant of quiet enjoyment).) Among the relevant factors are the pleaded theories of recovery. (See, Hyduke's Valley Motors v. Lobel Financial Corp. (2010) 189 Cal.App.4th 430, 435-36.) Here, Plaintiffs sued Ostolia Dominguez for: (i) violation of Civil Code section 1940.2; (ii) breach of the implied covenant of quiet enjoyment; (iii) violation of Civil Code section 1714; (iv) violation of C.C.P.

section 1159; (v) violation of Civil Code section 789.3; (vi) trespass; (vii) intentional infliction of emotional distress; and (viii) nuisance. In liberally construing 'on a contract,' each of these causes were based on Plaintiffs' purported lawful possession of the property pursuant to the lease. (E.g., SAC, at ¶¶ 74-75, 79-81, 97-99, 107, 113, 118, 124-125, 130.) The gravamen of the action was to enforce Plaintiffs' rights under the lease after being 'illegally dispossessed from the Diza Property.' (See, SAC, at ¶¶ 65-68.) Further, each cause of action encompasses 'all matters related to lawful possession of property' as required by the lease's attorney fee provision.

In opposition, Plaintiffs argue their theory of liability was that Dominguez 'colluded with Phil Melendez to help the owner of the property (Maria Melendez) oust the Awads.' But the SAC: (i) does not allege any 'collusion'; and (ii) makes clear that all defendants illegally dispossessed Plaintiffs from the property.

(E.g., SAC, at ¶ 74-75, 79-81, 97-99, 107, 113, 118, 124-125, 130.) Dominguez Prevailed on the Contract Claims Dominguez also prevailed on the contract as the Court sustained her demurrer without leave to amend.

(ROA 296.) When results of the litigation on the contract claims are not mixed (i.e., good news for one party and bad news for the other), a trial court has no discretion to deny attorney fees to the successful litigant. (Hsu v. Abbara (1995) 9 Cal.863, 875–876.) Attorney Fees are Precluded Because Plaintiffs Would Not Have Been Entitled to Recover Attorney Fees Against Dominguez Had They Prevailed However, Dominguez has not proven the third element. For this element, 'the pertinent inquiry for purposes of...section 1717 is whether [Plaintiffs] would have been entitled to attorney fees in a hypothetical situation in which [they] did prevail on its claim[s].' (Brown Bark III, L.P., supra, 219 Cal.App.4th at p. 828.) Here, in opposition, Plaintiffs argue Plaintiffs would not have been able to recover fees under the lease against Dominguez. In reply, Dominguez does not respond or provide any explanation as to how Plaintiffs would be able to recover attorney fees against her.

For these reasons, Dominguez is not entitled to fees and the motion is DENIED.

Concluding Orders Calendar No.: Event ID: TENTATIVE RULINGS

3072896 41 CASE NUMBER: CASE TITLE: AWAD VS. MELENDEZ [IMAGED] 37-2019-00054054-CU-BC-CTL If the tentative ruling is confirmed without modification, it will be the Court's final ruling. Defendant Ostolia Dominguez is ordered to serve written notice of the Court's final ruling by June 18, 2024.

Calendar No.: Event ID: TENTATIVE RULINGS

3072896 41