Judge: Deirdre Hill, Case: 20TRCV00891, Date: 2022-10-25 Tentative Ruling

Case Number: 20TRCV00891    Hearing Date: October 25, 2022    Dept: M

Hearing Date:                          October 25, 2022

Moving Parties:                      Defendant Jack Goldberg

Responding Party:                  Plaintiffs Avalino Garcia, et al.

Motion for Attorney’s Fees

            The court considered the moving, opposition, and reply papers.

RULING

            The motion is DENIED.

BACKGROUND

            On December 20, 2020, plaintiffs Avalino Garcia, Joe Martinez, Gustalvo Arellano, and Corey Emanuel filed a complaint against Jack Goldberg, Millee Goldberg, Jayem Enterprises, Inc., ACME Metals & Steel Supply, Inc., and the trustees of the Goldberg Family Trust Dated April 23, 1997 for (1) fraud in the inducement, (2) breach of oral contract, (3) breach of the covenant of good faith and fair dealing, (4) tortious breach of the covenant of good faith and fair dealing, (5) promise made without intent to perform, (6) intentional misrepresentation, (7) negligent misrepresentation, and (8) fraud and deceit.

            On October 12, 2021, plaintiffs filed a request for dismissal as to defendant Acme Metals & Steel Supply, Inc.

            On February 18, 2022, the court sustained without leave to amend defendant Millee Goldberg’s demurrer to each of the causes of action and granted Goldberg’s motion to strike without leave to amend.

            On August 3, 2022, the court granted defendant Jack Goldberg’s motion to compel discovery responses as to each plaintiff.

            On August 4, 2022, the court granted defendants Jayem Enterprises, Inc. and Jack Goldberg’s motion for judgment on the pleadings without leave to amend.  The court entered an order of dismissal.

LEGAL AUTHORITY

CCP §1021 states:  “Except as attorney’s fees are specifically provided for by statute, the measure and mode of compensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties; . . .”

CCP §1032(b) 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 §1033.5(a)(10)(A) states that attorney fees when authorized by contract are allowable as costs and may be awarded upon a noticed motion pursuant to CCP §1033.5(c)(5).  

            Under Civil Code §1717(a), “[i]n any action on contract, where the contract specifically provides that attorney 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 prevailing party on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney fees in addition to other costs.” 

“The trial court has ‘broad authority’ to determine the amount of a reasonable attorneys’ fees.  PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095.  “[T]he fee setting inquiry in California ordinarily begins with the ‘lodestar,’ i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate.”  (Id. [“California courts have consistently held that a computation of time spent on a case and the reasonable value of that time is fundamental to a determination of an appropriate attorneys' fee award.”].)

DISCUSSION

            Defendant Jack Goldberg requests attorney’s fees against plaintiffs in the amount of $17,880 under Civil Code §1717 as the prevailing party.

            Defendant argues that he is the prevailing party because the court granted his motion for judgment on the pleadings without leave to amend.

Defendant contends that under the 2^nd cause of action for breach of oral contract, the complaint alleged that “Plaintiff is entitled to attorney’s fees and costs pursuant to” Civil Code §1717.  Defendant acknowledges that he denied the existence of any such contract, but that “should the court have found that a contract existed, Defendants would have been subject to attorney’s fees damages.”  He argues that he is entitled to attorney’s fees under reciprocal enforcement of attorney-fee provisions.

In opposition, plaintiffs argue that there is no statutory or legal basis that allows defendant to recover attorney’s fees in this action because plaintiffs alleged oral agreements.

The court finds that defendant has not shown the existence of a written attorney’s fees provision in a contract or “where the contract specifically provides that attorney fees . . . shall be awarded.”  See Civil Code §1717(a).  The complaint only alleges breach of an oral contract.

The motion is thus DENIED.

Plaintiffs are ordered to give notice of ruling.

Hearing Date:                          October 25, 2022

Moving
Parties:                      Plaintiffs Avalino Garcia, et al.

Responding
Party:                  None

Motion to Strike, or
in the alternative, Tax Defendants’ Memorandum of Costs

            The court considered the moving
papers.

RULING

            The motion is GRANTED.  Defendant Jack Goldberg’s memorandum of costs
filed on September 2, 2022 is STRICKEN as untimely served and filed.

BACKGROUND

            On December 20, 2020, plaintiffs
Avalino Garcia, Joe Martinez, Gustalvo Arellano, and Corey Emanuel filed a
complaint against Jack Goldberg, Millee Goldberg, Jayem Enterprises, Inc., ACME
Metals & Steel Supply, Inc., and the trustees of the Goldberg Family Trust
Dated April 23, 1997 for (1) fraud in the inducement, (2) breach of oral
contract, (3) breach of the covenant of good faith and fair dealing, (4)
tortious breach of the covenant of good faith and fair dealing, (5) promise
made without intent to perform, (6) intentional misrepresentation, (7)
negligent misrepresentation, and (8) fraud and deceit.

            On October 12, 2021, plaintiffs
filed a request for dismissal as to defendant Acme Metals & Steel Supply,
Inc.

            On February 18, 2022, the court
sustained without leave to amend defendant Millee Goldberg’s demurrer to each
of the causes of action and granted Goldberg’s motion to strike without leave
to amend.

            On August 3, 2022, the court granted
defendant Jack Goldberg’s motion to compel discovery responses as to each
plaintiff.

            On August 4, 2022, the court granted
defendants Jayem Enterprises, Inc. and Jack Goldberg’s motion for judgment on
the pleadings without leave to amend. 
The court entered an order of dismissal.

            On September 2, 2022, defendants
filed a memorandum of costs.

LEGAL AUTHORITY

            “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 dismissal, or within 180 days after entry of judgment, whichever is
first.”  Cal. Rules of Court, Rule
3.1700(a)(1).

            “Any notice of motion to strike or
to tax costs must be served and filed 15 days after service of the costs
memorandum.  If the cost memorandum was
served by mail, the period is extended as provided in Code of Civil Procedure
section 1013.”  Cal. Rules of Court, Rule
3.1700(b)(1).

            “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. 
This means that the prevailing party is entitled to all of his costs
unless another statute provides otherwise. 
Absent such statutory authority, the court has no discretion to deny
costs to the prevailing party.”  Nelson v. Anderson (1999) 72 Cal. App.
4th 111, 128-29 (citations and internal quotations omitted); CCP §1032(b)
(“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 §1033.5(c) states, in relevant
part:  “Any award for costs shall be
subject to the following:

            (1) Costs are allowable if incurred,
whether or not paid.

            (2) Allowable costs shall be
reasonably necessary to the conduct of the litigation rather than merely
convenient or beneficial to its preparation.

(3) Allowable costs shall be
reasonable in amount.

            (4) Items not mentioned in this
section . . . may be allowed . . . in the Court’s discretion.”

DISCUSSION

            Plaintiffs request an order striking
or taxing defendant Jack Goldberg’s memorandum of costs.  Alternatively, plaintiffs request that the
court strike defendant’s request for attorney’s fees.

            The order of dismissal was entered,
and notice was served by the clerk on August 4, 2022.  On September 2, 2022, defendant filed and
served his memorandum of costs. 

            Plaintiffs argue that the memorandum
of costs was untimely filed under Cal. Rules of Court, Rule 3.1700(a).  As the date of service by the clerk of the
written notice of entry of dismissal was August 4, 2022, the deadline to file and
serve the memorandum of costs was August 19, 2022.  Plaintiffs also argue that defendants cannot
recover attorney’s fees because they are not authorized by statute, contract,
or by law.  CCP §1033.5(a)(10). 

            There is no opposition.

The court finds that defendant’s memorandum
of costs was untimely served and filed. 
The memorandum of costs was filed on September 2, 2022, after the due
date of August 19, 2022.  See Hydratec,
Inc. v. Sun Valley 260 Orchard & Vineyard Co. (1990) 223 Cal. App. 3d
924, 929 (“[I]f the claimant fails to present a cost bill, a waiver of the
right to costs results.  The time
provisions relating to the filing of a memorandum of costs, while not
jurisdictional, are mandatory.”). 

            Plaintiffs are ordered to give
notice of this ruling.