Judge Kerry Bensinger, Case Number: 23STCV10802, Date: 2025-01-15 Tentative Ruling

Counsel may submit on the tentative ruling by emailing Dept. 31 before 8:30 the morning of the hearing. The email address is smcdept31@lacourt.org. Please do not call the court to submit on the tentative. Please do not submit to the tentative ruling on behalf of the opposing party. Please do not e-mail the Court if you plan to appear and argue.

In deciding whether to submit on the tentative ruling or attend the hearing and present oral argument, please keep the following in mind:

The tentative rulings authored by this court reflect that the court has read and considered all pleadings and evidence timely submitted to the court in connection with the motion, opposition, and reply (if any). Because the pleadings were filed, they are part of the public record.

Oral argument is not an opportunity to simply regurgitate that which a party set forth in its pleadings. Nor, is oral argument an opportunity to "make a record" when there is no court reporter present and the statements and arguments of counsel are already part of the record because they were set forth in the pleadings. Finally, simply because a party or attorney disagrees with the court's analysis and ruling or is not satisfied with it does not necessarily warrant oral argument when no new arguments will be articulated.

If you submit on the tentative, you must immediately notify all other parties email that you will not appear at the hearing. If you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the motions. If all parties to the motion submit, this tentative ruling will become the final ruling after the hearing date and it will be memorialized in a minute order. This tentative ruling is not an invitation, nor an opportunity, to file further documents relative to the hearing in question. No such document will be considered by the Court.

**Tentative rulings on Motions for Summary Judgment will only be available for review in the courtroom on the day of the hearing.

MOVING PARTY: Defendant/Cross-Complainant Custom Design Fur Corporation dba LAApartments.Biz

Leland Regent Properties (“Leland”) is the owner of the real property commonly known as 6731 Leland Way, Los Angeles, California, 90028 (the “Property”). On or about March 8, 2023, Leland entered into a written Purchase Agreement with Custom Design Fur Corporation dba LAApartments.Biz (“CDF”) for the Property. Pursuant to the Purchase Agreement, CDF, by way of an advance on its behalf by CDF’s sister company LA Brea AP, LLC, deposited money into escrow to be applied to the purchase price. Wilshire Escrow Company (“Wilshire Escrow”) was the escrow holder. However, the sale was not completed. CDF did not approve certain contingency items under the Purchase Agreement within the specified time. Leland did not approve the return of CDF’s deposit which is still being held by Wilshire Escrow.

Leland filed its Complaint against CDF (erroneously sued as La Brea AP, LLC) for Breach of Contract. CDF, in turn, filed its Cross-Complaint against Leland and Wilshire Escrow for Breach of Contract and Damages to Recover Monies Held in Escrow.

The parties filed cross-motions for summary judgment. The court heard argument on the cross-motions on April 29, 2024. After argument, the court found in favor of CDF. The court adopted its tentative ruling granting CDF’s Motion for Summary Judgment. Judgment was entered in CDF’s favor on September 12, 2024.

On October 31, 2024, Leland filed a Notice of Appeal of the court’s April 26, 2024 order.

On November 8, 2024, CDF filed this Motion to Fix Attorney’s Fees As Costs pursuant to Code of Civil Procedure section 1033.5, California Rules of Court, rule 3.1702, and Civil Code section 1717.

CDF moves the court for an order fixing attorney’s fees as costs in the amount of $95,987.50, plus $4,650.00 for the costs incurred in filing this motion and preparing a reply brief.

A motion for attorney fees is not premature despite the filing of a notice of appeal. (Korchemny v. Piterman (2021) 68 Cal.App.5th 1032, 1052.) In any event, an award of attorney fees as costs is a collateral matter which is embraced in the action but is not affected by the order from which an appeal is taken. (Id.) Consequently, filing a notice of appeal does not stay any proceedings to determine the matter of costs and does not prevent the trial court from determining a proper award of attorney fees claimed as costs. (Id.)

Given the foregoing, and the lack of opposition filed, the court finds CDF’s request for attorney fees in the amount of $95,987.50, plus $4,650.00 for the costs the filing of this motion were reasonably incurred.

Accordingly, CDF’s Motion to Fix Amount of Attorney’s Fees As Costs is GRANTED.

Kerry Bensinger

Judge of the Superior Court