Judge: Kenneth J. Medel, Case: 37-2019-00028710-CU-BC-CTL, Date: 2023-12-01 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - November 30, 2023

12/01/2023  09:30:00 AM  C-66 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Kenneth J Medel

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Civil - Unlimited  Breach of Contract/Warranty Motion Hearing (Civil) 37-2019-00028710-CU-BC-CTL LE LYCEE FRANCAIS ET INTERNATIONAL DE SAN DIEGO VS TREVIN SCHALL ARCHITECT INC [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion for Attorney Fees, 06/21/2023

Defendant PATTERSON ENGINEERING, INC.'s Motion for Attorney Fees and Costs is GRANTED. PEI seeks $34,970.05 in attorney's fees and costs from LPE based on Code of Civil Procedure §§ 411.35(h), 998, 102.6, 1032, and 133.5.

The basis for fees is Section 411.35(h), which provides: (h) Upon the favorable conclusion of the litigation with respect to any party for whom a certificate of merit was filed or for whom a certificate of merit should have been filed pursuant to this section, the trial court may, upon the motion of a party or upon the court's own motion, verify compliance with this section. . . . If the trial judge finds there has been a failure to comply with this section, the court may order a party, a party's attorney, or both, to pay any reasonable expenses, including attorney's fees, incurred by another party as a result of the failure to comply with this section.

The attorney fees are a remedy for failure to comply with the section regarding filing a Certificate of Merit prior to the filing of an action against a design professional. The Certificate of Merit must be filed and served 'on or before the date of service of the complaint.' (CCP §411.35(a).) In the demurrer ruling, Plaintiff was found not to have properly and timely filed a Certificate of Merit. PEI is structural engineering firm whose principal, Curtis Patterson, is a licensed structural engineer (License Number 5629). The claims in this case put forth by Plaintiff are directly related to alleged structural design services performed by PEI, pursuant to its contract it had with TSA. Plaintiff has not filed and served PEI with a Certificate of Merit of a structural engineer as mandated by Section 411.35, subd. (1) of the Code of Civil Procedure. Additionally, according to PEI, Plaintiff still has not cured this defect with the sixty-day safe harbor period which started on November 17, 2022, and ended on January 16, 2023.

(There was a late Certificate of Merit filed on May 15, 2023.) Plaintiff argues that the demurrer ruling was not a decision on the merits and therefore not a 'favorable conclusion' allowing for fees under CCP 411.35(h). However, the code only requires a 'favorable conclusion' not a decision on the merits of the case. The Court made such a conclusion, including a finding that a Certificate of Merit was not properly filed.

The Court finds that the amount of fees requested, including the hourly rate and the hours spent, are reasonable and awards the amount requested. Plaintiff has not opposed PEI's request for $1,390.05 in recoverable costs. The Court awards the costs requested.

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