Judge Gary Y. Tanaka, Case YC071798 2023-05-09 Tentative Ruling

LOS ANGELES SUPERIOR COURT – SOUTHWEST DISTRICT

Honorable Gary Y. Tanaka Tuesday, May 9, 2023

Department B Calendar No. 4

1. Mike Horusicky, Jr.’s Motion to be Deemed Prevailing Party for Attorneys’ Fees

Mike Horusicky, Jr.’s Motion to be Deemed Prevailing Party and Howard Brand, et al.’s Motion to Strike and/or Tax Costs are taken off calendar.

Plaintiffs filed their initial Complaint on January 11, 2017. The First Amended Complaint was filed on March 3, 2017. A Cross-Complaint was filed on May 4, 2017. Plaintiffs filed this lawsuit against Defendants Mike Horusicky Construction, Inc. (“HCI”) and Mike Horusicky personally, alleging each entered into the contract for the construction of the Project. Plaintiffs contend that the pool, spa, waterfall, barbeque area, and deck were not constructed properly and that there were delays in construction. HCI and Mr. Horusicky denied these allegations. Plaintiffs alleged the following causes of action: 1. Negligence; 2. Breach of Contract; 3. Fraud; 4. Negligent Misrepresentation; 5. Breach of Implied Warranty; 6. Breach of Implied Covenant of Good Faith and Fair Dealing; 7. Violation of Bus. & Prof. Code 17500.

HCI contends the Brands did not pay, in full, for the construction of the pool, and that HCI was not allowed to complete the pool. Mr. Horusicky denies that he was personally a party to the contract with the Brands to build the pool, spa and waterfall, barbeque area, and deck, and was acting in his capacity as President of HCI during this dispute. The Brands deny that they owe HCI anything. The Cross-Complaint set forth the following causes of action: 1. Breach of Contract; 2. Work, Labor, and Materials/Agreed Price; 3. Open Book Account; 4. Account Stated; 5. Reasonable Value/Work Labor and Services.

Following a nine-day jury trial, the jury rendered a verdict in favor of Defendants and against the Brands. The jury dismissed all of the Brands’ causes of action against Defendants. The jury awarded $18,107.39 on the cause of action for common count for Goods and Services Rendered in the Cross-Complaint. On March 14, 2023, Plaintiffs/Cross-Defendants’ Motion for New Trial was granted. The Court ordered a new trial as to the Cross-Complaint.

Civ. Code, § 1717(a) states, in relevant 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. . . . Reasonable attorney's fees shall be fixed by the court, and shall be an element of the costs of suit.”

The Court determines the prevailing party on contract claims “upon final resolution of the contract claims and only by a comparison of the extent to which each party ha[s] succeeded and failed to succeed in its contentions.” Hsu v. Abbara (1995) 9 Cal.4th 863, 876 (internal quotations omitted). When a party obtains an unqualified victory by prevailing on or defeating a contract claim, that party is entitled to attorneys’ fees. Scott Co. of Calif. v. Blount, Inc. (1999) 20 Cal.4th 1103, 1109. Other non-contract claims that are joined in the action are disregarded for purposes of analyzing contract based attorneys’ fees motions. Thus, even if a party may have been successful on a non-contract claim, the party who prevailed on the contract is entitled to attorneys’ fees pursuant to Section 1717. Santisas v. Goodin (1998) 17 Cal.4th 599, 615; Korech v. Hornwood (1997) 58 Cal.App.4th 1412, 1419-22.

“Any notice of motion to strike or to tax costs must be served and filed 15 days after service of the cost memorandum. If the cost memorandum was served by mail, the period is extended as provided in Code of Civil Procedure section 1013. If the cost memorandum was served electronically, the period is extended as provided in Code of Civil Procedure section 1010.6(a)(4).” Cal. Rules of Court, Rule 3.1700(b)(1).

“Unless objection is made to the entire cost memorandum, the motion to strike or tax costs must refer to each item objected to by the same number and appear in the same order as the corresponding cost item claimed on the memorandum of costs and must state why the item is objectionable.” Cal. Rules of Court, Rule 3.1700(b)(2).

“If the items appearing in a cost bill appear to be proper charges, the burden is on the party seeking to tax costs to show that they were not reasonable or necessary. On the other hand, if the items are properly objected to, they are put in issue and the burden of proof is on the party claiming them as costs. Whether a cost item was reasonably necessary to the litigation presents a question of fact for the trial court and its decision is reviewed for abuse of discretion.” Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774 (internal citation omitted).

Both motions are premature and cannot be ruled upon by the Court. No final judgment exists in this action. “When a court grants a partial new trial, the new trial order has the effect of vacating the entire judgment and holding in abeyance the portions which are not subject to a new trial until one final judgment can be entered. Here, there was no final judgment; it was vacated by operation of law.” Newstart Real Estate Investment LLC v. Huang (2019) 37 Cal.App.5th 159, 163–64 (internal citation and quotation omitted). “[C]osts or attorneys' fees may not be allowed until the final judgment is entered[.]” Williams v. Wells Fargo Bank & Union Trust Co. (1943) 56 Cal.App.2d 645, 652.

Therefore, the Court takes the motions off calendar. The parties may re-file relevant documents such as a memorandum of costs and any applicable motions after the entry of final judgment in this action.