Judge: Kristin S. Escalante , Case: 21STCV33875, Date: 2023-05-18 Tentative Ruling

Case Number: 21STCV33875    Hearing Date: May 18, 2023    Dept: 24

The Motion for Attorney Fees ID: 01714195683filed by Defendant Hawthorne Auto Market, Inc is DENIED.

Defendant Hawthorne Auto Market, Inc (“Defendant”) moves for order approving $26401.96 in attorneys’ fees and costs comprised of $25,200 in attorneys’ fees and $1,201.96 in costs against Plaintiff Mariya Perez (“Plaintiff”). (Notice of Mtn. at p. 2; Memorandum of Costs). Plaintiff does not oppose the motion.

By way of background, on September 14, 2021, Plaintiff filed suit against Defendant for claims under the Song Beverly Consumer Warranty Act (“Song Beverly”) in connection with her purchase of a used 2013 Volkswagen Beetle. On April 17, 2023, the court granted Defendant’s unopposed motion for judgment on the pleadings and motion to strike without leave to amend and American Safety Casualty Insurance Company’s notice of joinder in the motion.

Discussion

Defendant has made a contract-based attorney fee request. (See Mtn., at p. 4:12-5:06.) Defendant seeks attorneys’ fees pursuant to Civil Code section 1717 (“Section 1717”) which 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 to either 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’s fee in addition to other costs.” (Civ. Code, § 1717) “[Civil Code section] 1717 was not designed exclusively for the benefit of consumers or unsophisticated, weaker parties to a contract. It reflects a fundamental policy to prevent one-sided attorneys’ fee provisions and thus to prevent overreaching “both in the negotiation of a contract and in the use of the courts during litigation.” (7 Witkin, Cal. Proc. 6th Judgm § 177 (2023); see also ABF Capital Corp. v. Grove Properties Co. (2005) 126 Cal.App.4th 204, 217.)

Defendant’s motion is denied for two reasons. First, Defendant has not established that the contract has an attorneys fees provision. Defendant does not provide the contract; instead, Defendant states generally that Plaintiff sued under the contract for attorneys’ fees. (Mtn., at p. 5:03-06 [“In this case, the contract sued upon by Ms. Perez called for legal fees for the prevailing party. Since Ms. Perez lost that claim, and Hawthorne was declared the prevailing party, Hawthorne is entitled to legal fees as against Ms. Perez.”].)

Plaintiff sought attorneys’ fees in connection the first (intentional misrepresentation), third (breach of written contract), fourth (violation of business and professions code section 17200), sixth (violation of Consumer Legal Remedies Act), seventh (breach of implied warranty), and eighth (violation of Song Beverly) causes of action. (Compl., ¶¶ 32, 98, 106, and the prayer for relief.) Cause of action eight was mislabeled cause of action nine in the complaint. Based on the moving papers, the only relevant causes action are causes of action three (breach of written contract) and seven (breach of implied warranty). However, the complaint neither quotes nor attaches the contract. It also does not state that there is an attorneys’ fees provision. There is no evidence before the court establishing that the contract that Plaintiff attempted to enforce through bringing this action contained any attorneys fee provision. Without such a provision, Defendant is not entitled to an award under the contract. (See Brittalia Ventures v. Stuke Nursery Co., Inc. (2007) 153 Cal.App.4th 17, 28-29. )

Second, Defendant has not sufficiently substantiated the fee request. Defendant attaches the Declaration of counsel Jay Smith. Smith requests fees for 72 hours of work billed at $350. Defendant does not submit billing records. Additionally, as laid out in Smith’s declaration, he seeks reimbursement for all work done on activities beyond the scope of the contract claim—i.e. reviewing documents, preparing discovery, preparing a motion for judgment on the pleadings, correspondence with counsel etc. Since Defendant requests fees solely under the contract claims, it is unreasonable for Defendant to simultaneously apply to the court for reimbursement for all of counsel’s work. To the extent counsel limited the hours to contract claims, it is unclear.

As to costs, Defendant served the memorandum of costs with the motion for attorneys’ fees. It was premature as the operative event of judgment had not occurred at that time. (Rules of Court, Rule 3.1700, subd. (a)(1).) A premature memorandum will be deemed served the day after the notice of entry of judgment is served. (See Brown v. West Covina Toyota (1994) 26 Cal.App.4th 555, 560.) Judgement was served on May 8, 2023. Accordingly, Plaintiff still has time to contest the cost. (Rules of Court, Rule 3.1700, subd. (b).) Thus, the court does not address costs.

Accordingly, the motion is denied.