Judge: Daniel M. Crowley, Case: 21STCV09047, Date: 2022-10-14 Tentative Ruling

Case Number: 21STCV09047    Hearing Date: October 14, 2022    Dept: 28

Cross-Defendant Jeffrey Asidi’s Motion for Attorneys’ Fees and Costs

Having considered the moving, opposing and reply papers, the Court rules as follows.

BACKGROUND

On March 8, 2021, Plaintiff Osaretin Aluyi (“Plaintiff”) filed this action against Defendant Richard Siebold (“Defendant”) for general negligence and premises liability.

On January 6, 2022, Defendant filed an answer and a Cross-Complaint against Cross-Defendant Jeffrey Asidi (“Cross-Defendant”) for breach of contract, express written indemnity, equitable indemnity and declaratory relief. On May 11, 2022, the Court dismissed Cross-Defendant, without prejudice.

On July 11, 2022, Cross-Defendant filed a Motion for Attorneys’ Fees and Costs to be heard on October 14, 2022. On October 6, 2022, Defendant filed an opposition. On October 11, 2022, Cross-Defendant filed a reply.

Trial is currently scheduled for March 8, 2023.

PARTY’S REQUESTS

Cross-Defendant requests that the Court award Cross-Defendant attorneys’ fees that were incurred in the litigation, totaling $19,612.50.

Defendant requests the Court deny the motion or reduce the attorney fees granted.

LEGAL STANDARD

Generally, a “prevailing party” is entitled to costs, unless otherwise expressly provided by statute. (Code of Civ. Proc. § 1032(b); Santisas v. Goodin (1998) 17 Cal.4th 599, 606.). A prevailing party includes “a defendant in whose favor a dismissal is entered,” and a “defendant where neither plaintiff nor defendant obtains any relief.” (Code of Civ. Proc. § 1032(a)(4).) “A prevailing party who claims costs must serve and file a memorandum of costs within 15 days after the date of mailing of the notice of entry of judgment…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.” (Cal. Rules of Court, rule 3.1700.)

The losing party may contest the costs that a prevailing party seeks. (CCP §1034(a).) The challenging party has the burden of demonstrating that those costs are unreasonable or unnecessary. (Adams v. Ford Motor Co., (2011) 199 Cal. App. 4th 1475, 1486; 612 South LLC v. Laconic Limited Partnership, (2010) 184 Cal. App. 4th 1270, 1285.)  If items are properly objected to, they are put in issue and the burden of proof is on the party claiming them as costs. (Id.)  “Defendant's mere statements in the points and authorities accompanying its notice of motion to strike cost bill and the declaration of its counsel are insufficient to rebut the prima facie showing.”  (Rappenecker v. Sea-Land Service, Inc. (1979) 93 Cal.App.3d 256, 266.)

Civil Code §1717 provides, “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.

Where a contract provides for attorney's fees, as set forth above, that provision shall be construed as applying to the entire contract, unless each party was represented by counsel in the negotiation and execution of the contract, and the fact of that representation is specified in the contract.”

DISCUSSION

Defendant and Cross-Defendant had a lease agreement regarding the subject location of the incident, which states that “If any Party or Broker brings an action or proceeding involving the Premises whether founded in tort, contract, or equity, or to declare rights hereunder, the Prevailing Party (as hereafter defined) in any such proceeding, action, or appeal thereon, shall be entitled to reasonable attorneys' fees.” Defendant’s Cross-Complaint was based on the lease agreement that existed between Defendant and Cross-Defendant. The Court finds that the subject action would apply under the lease agreement. The Court sustained Cross-Defendant's demurrer, without leave to amend, which would meet the requirements to be considered a prevailing party. Cross-Defendant is entitled to recover reasonable attorneys’ fees, under contract.

Defendant argues that Cross-Defendant is not entitled under statute, as Cross-Defendant was not subject to the lease agreement. Cross-Defendant is an individual. The subject lease agreement was between Defendant and Cross-Defendant's corporation, a distinct legal entity. This was, in part, a basis for the Court sustaining the demurrer without leave to amend. The contract only applies to a “party or broker”, which would not apply to Cross-Defendant. While there are cases that provide means to collect attorneys’ fees from non-signatories, this can only be done if the ability to collect fees would be reciprocal.

Leach v. Home Savings and Loan Association (1986) 230 Cal.App.3d 1295, 1307 provides, “The California Supreme Court has determined that one may only recover attorney’s fees pursuant to section 1717 if one “would have been liable” for such fees had the opposing party prevailed. [citations omitted] Judging by this language, Reynolds and section 1717 require that the party claiming a right to receive fees establish that the opposing party actually would have been entitled to receive them if he or she had been the prevailing party.”

Cross-Defendant argues that he would have been subjected to attorneys’ fees, had he lost, as a guarantor of the lease agreement between his corporation and Defendant. The Court agrees, especially given that Defendant’s Cross-Complaint was entirely predicated on the subject lease agreement. Meaning, if, under some circumstances, Defendant prevailed, Defendant would have been entitled to attorneys’ fees under contract. Additionally, regardless of whether Defendant had sued Cross-Defendant or Cross-Defendant's corporation, the party being sued would have still prevailed as the lease agreement clearly identified the subject areas as being Defendant’s responsibility. The Court grants the motion.

Cross-Defendants requests attorneys’ fees totaling $19,612.50. This is based upon 19 hours of work, at a rate of $625.00 per hour, and 4 hours of work, at a rate of $300.00 per hour. The total was then multiplied by 1.5. The Court notes that the 4 hours of work were associated with work done by the Cross-Defendant; the Court will not award attorneys’ fees for Cross-Defendant's work, as attorneys representing themselves are not eligible to recover attorneys’ fees under contractual fee clauses. Trope v Katz (1995) 11 Cal.4th 274, 292. Additionally, the Court does not see a reason for the applied multiplier; multipliers are usually applied when representation is taken on a contingency fee basis. There is no indication that this case was taken on such a basis. The Court awards attorneys’ fees totaling $11,875.00.

CONCLUSION

Cross-Defendant Jeffrey Asidi’s Motion for Attorneys’ Fees and Costs is GRANTED. Defendant is ordered to pay Cross-Defendant $11,875.00 in attorneys’ fees.

Moving Party is ordered to give notice of this ruling.

Moving Party is ordered to file the proof of service of this ruling with the Court within five days.

The parties are directed to the header of this tentative ruling for further instructions.