Judge: Loren G. Freestone, Case: 37-2019-00049524-CU-FR-CTL, Date: 2023-09-15 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - September 14, 2023

09/15/2023  10:30:00 AM  C-64 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Loren G. Freestone

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Civil - Unlimited  Fraud Motion Hearing (Civil) 37-2019-00049524-CU-FR-CTL BAUER VS OSBERG [IMAGED] CAUSAL DOCUMENT/DATE FILED:

TENTATIVE RULING Defendant Sharon Lee Osberg's motion for attorney fees is DENIED as to Plaintiffs John Bauer and Tonie Bouer. The court will HEAR as to Plaintiff Mark Veeder.

Osberg's motion for costs is DENIED.

Attorney Fees Osberg seeks $213,437.50 in attorney fees.

Plaintiffs John Bauer, Tonie Bauer, and Mark Veeder argue that the motion for attorney fees is premature because judgment has not yet been entered. A 'request for fees incurred before rendition of the judgment in the trial court may be timely even if it is filed prematurely prior to the entry of judgment,' particularly in the absence of prejudice to the opposing party. (Yuba Cypress Housing Partners, Ltd. v. Area Developers (2002) 98 Cal.App.4th 1077, 1086 [motion for attorney fees filed after parties executed a stipulated judgment, but before judgment was entered].) Here, the jury rendered its verdict effectively ending the litigation, and Plaintiffs do not identify any prejudice if the motion is heard now rather than after entry of judgment. The court therefore reaches the merits of the motion.

Osberg argues that she is entitled to such fees based on an attorney fee provision in the March 31, 2018 California Residential Purchase Agreement, which states: 'ATTORNEY'S FEES: In any action, proceeding, or arbitration between Buyer and Seller arising out of this Agreement, the prevailing Buyer or Seller shall be entitled to reasonable attorney's fees and costs from the non-prevailing Buyer or Seller, except as provided in Paragraph 22A.' (See also Civ. Code, § 1717.) However, in addition to common law and contractual claims, the Bauers also pursued a statutory cause of action for financial elder abuse against Osberg. (Welf. & Inst. Code, § 15610.30; ROA #49, FAC at pp. 12–13; ROA #251, Verdict at question nos. 16–18.) The Elder Abuse and Dependent Adult Civil Protection Act contains its own attorney fee provision, which states: 'Where it is proven by a preponderance of the evidence that a defendant is liable for financial abuse, as Calendar No.: Event ID:  TENTATIVE RULINGS

3001405  34 CASE NUMBER: CASE TITLE:  BAUER VS OSBERG [IMAGED]  37-2019-00049524-CU-FR-CTL defined in Section 15610.30, in addition to compensatory damages and all other remedies otherwise provided by law, the court shall award to the plaintiff reasonable attorney's fees and costs.' (Welf. & Inst. Code, § 15657.5, subd. (a).) The contractual fee provision is bilateral (i.e., it applies to both prevailing plaintiffs and prevailing defendants), whereas the statutory fee provision is unilateral (i.e., it applies only to prevailing plaintiffs).

Plaintiffs argue that the unilateral fee provision in the limits Osberg's ability to recover fees based on the purchase contract.

The interplay between these two types of fee provisions was discussed in Wood v. Santa Monica Escrow Co. (2007) 151 Cal.App.4th 1186.) In Wood, the plaintiff (as personal representative of an elderly woman's estate) alleged that the elder had been duped into obtaining a loan secured by her residence and transferring the proceeds to a third-party. (Id. at p. 1189.) In addition to suing the two individuals who perpetrated the scheme, the plaintiff also alleged causes of action against the escrow company for breach of contract, breach of fiduciary duty, negligence, and elder abuse. (Ibid.) After it was voluntarily dismissed, the escrow company moved for attorney fees based on a fee provision in the escrow instructions that applied to 'any action or proceeding' between any of the parties to the escrow and the escrow holder. (Ibid.) The trial court denied the request for fees in its entirety, and the court of appeal affirmed. (Ibid.) The court held that in light of the legislative policy underlying the unilateral fee provision, the EADACPA prohibits an award of fees for successfully defending any claims that overlap with an elder abuse claim. (Id. at pp. 1190–1192.) As all causes of action arose from a single transaction (the loan), they all overlapped with the elder abuse claim and therefore the defendant was not entitled to any fees. (Id. at p. 1191.) As to the Bauers, Wood is dispositive. All of the causes of action related to a single transaction-the sale of Osberg's property. The alleged failure to disclose unpermitted renovations was the factual basis for both the elder abuse and non-elder abuse claims. In this scenario, the EADACPA bars Osberg from recovering attorney fees against the Bauers based on the purchase contract. The motion for attorney fees as to the Bauers is therefore denied.

However, Veeder did not allege a claim for elder abuse. As such, the EADACPA does not bar Osberg from potentially recovering the entirety of her attorney fees against him. (See Acosta v. SI Corp. (2005) 129 Cal.App.4th 1370, 1376 ['The costs are joint and several because the plaintiffs joined together (represented by the same attorney) in a single theory of liability against a defendant who prevailed'].) Yet Veeder and the Bauers differ in another, potentially material respect-Veeder is not a signatory to the purchase contract that forms the basis for this motion, nor a 'Buyer' as that term is defined therein. The parties also 'stipulate[d] to remove Mark Veeder as to the breach of contract claims.' (ROA #257.) 'A party claiming fees under section 1717 must establish that the opposing party actually would have been entitled to receive them if he or she had been the prevailing party.' (Blickman Turkus, LP v. MF Downtown Sunnyvale LLC (2008) 162 Cal.App.4th 858, 896–899; see, e.g., Sessions Payroll Mgmt., Inc.

v. Noble Constr. Co. (2000) 84 Cal.App.4th 671, 679.) The parties did not address the extent to which Veeder specifically, as a nonsignatory/non-Buyer, may be held liable for attorney fees. The court will hear from the parties on this issue.

Costs Osberg also seeks $11,243.57 in costs.

Osberg explains the basis of this request as follows: 'Total costs of $17,564.50 have been incurred and paid. A Memorandum of Costs, seeking only those costs statutorily allowed is being submitted concurrently with this motion. In total, $6,320.77 in costs Calendar No.: Event ID:  TENTATIVE RULINGS

3001405  34 CASE NUMBER: CASE TITLE:  BAUER VS OSBERG [IMAGED]  37-2019-00049524-CU-FR-CTL allowed are being sought via the Memorandum of Costs, leaving the remaining $11,243.57 to be awarded via this Motion for Attorney's Fees pursuant to the attorney's fees provision in the Real Estate Purchase Contract.' There are two problems with Osberg's request.

First, as noted above, the purchase contract states the prevailing party may recover 'reasonable attorney's fees and costs.' There is no evidence the reference to 'costs' in the purchase agreement was intended to encompass anything beyond the statutorily permissible costs claimed in Osberg's memorandum. (See Hsu v. Semiconductor Systems, Inc. (2005) 126 Cal.App.4th 1330, 1341 ['an undefined general contractual provision entitling the prevailing party to 'reasonable attorney's fees and costs' must be interpreted in light of Code of Civil Procedure section 1033.5's limitation definition of costs,' and therefore is 'presumed to adopt the statutory definition absent evidence to the contrary'].) Second, even if the purchase contract did entitle Osberg an expanded array of costs, this motion is not the proper mechanism for recovering them. Such costs 'must be specially pleaded and proven at trial, and not awarded posttrial.' (Hsu, supra, 126 Cal.App.4th at pp. 1341–1342; accord Jones v. Union Bank of California (2005) 127 Cal.App.4th 542, 551; Carwash of America-PO LLC v. Windswept Ventures No. I (2002) 97 Cal.App.4th 540, 543–545.) Osberg is not entitled to recover any costs beyond those allowed by statute and claimed in her memorandum. The motion for costs is therefore denied.

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