Judge: Douglas W. Stern, Case: 22STCV14472, Date: 2023-10-19 Tentative Ruling

Case Number: 22STCV14472    Hearing Date: October 19, 2023    Dept: 68

COST SIGN, INC vs ALEX BOUDAIE, DDS, INC, et al., case no. 22STCV14472

Plaintiff’s Motion for Attorney Fees

The Court desires to hear argument.  The following issues are of paramount importance.

PREVAILING PARTY

Plaintiff asserts:

“Civil Code§ 1717 (b)(l) states that "the party prevailing on the contract shall be the party who recovered a greater relief in the action on the contract."  (Motion page 4:11-12).

Actually, Civil Code § 1717(b)(1) states:

“… the party prevailing on the contract shall be the party who recovered a greater relief in the action on the contract.  The court may also determine that there is no party prevailing on the contract for purposes of this section.”  (Bold added.)

Plaintiff states:

Also, the court already determined that, under Code of Civil Procedure § 1032, Plaintiff and Cross-Defendant Cost Sign, Inc is the "Prevailing party" as it obtained the net monetary recovery on both contracts.”  (Motion page 4:14-16.)

However, it is worth noting that the Court expressly included in its Judgment that it was not making any determination of the prevailing party for purposes of awarding attorneys fees.  Thus, it is not correct to reach any conclusion from the Court’s determination of “prevailing party” for purposes of the award of costs under Code of Civil Procedure § 1032.

The parties should be prepared to address the question of whether the court should find that no party prevailed because of the mixed bag of the outcome.

REASONABLE HOURS AND RATE

Plaintiff seeks to recover $61,625 against Defendant Alex Boudaie DDS, Inc and a second $61,625 against Defendant Boudaie Dental, PC.  This totals $123,250, based on 290 hours at $425 per hour.

Plaintiff recovered $8,873 against Alex Boudaie, DDS, with Alex Boudaie, DDE recovering $4,373.  Hence a net recovery of $4,500.

Plaintiff recovered $8,063.88 against Boudaie Dental, PC and owes that entity $875.  The Court is told that it was reasonable to spend 290 hours at $425 per hour on this case.

The Court does not believe that the hours and rate requested are justified based on the Court’s evaluation of the reasonable time and rate that should apply (assuming that the Plaintiff is deemed the prevailing party under Civil Code § 1717(b)(1)).

The parties should address these issues (and any others that the parties believe should be emphasized.