Judge: Mark C. Kim, Case: 21LBCV00336, Date: 2022-08-09 Tentative Ruling
Case Number: 21LBCV00336 Hearing Date: August 9, 2022 Dept: S27
Plaintiff, Ocean Network Express PTE LTC, C/O Ocean Network Express (North America),
Inc. filed this action against
Defendant, HHM Intl, Inc. for breach of written contract. Plaintiff alleges it entered into a written
agreement with Defendant and has complied with all requirements of the agreement,
but Defendant is in breach of the parties’ agreement in the principal sum of
$72,800, plus interest, attorneys’ fees, and costs of suit.
Defendant filed an answer to the complaint
on 12/13/21; the answer consists of a general denial and seven affirmative
defenses.
a. Burdens
on Summary Judgment
Summary judgment is proper “if all
the papers submitted show that there is no triable issue as to any material
fact and that the moving party is entitled to judgment as a matter of law.” (Code Civ. Proc. §437c(c).) Where a defendant seeks summary judgment or
adjudication, he must show that either “one or more elements of the cause of
action, even if not separately pleaded, cannot be established, or that there is
a complete defense to that cause of action.”
(Id. at §437c(o)(2).) A defendant may satisfy this burden by
showing that the claim “cannot be established” because of the lack of evidence
on some essential element of the claim.
(Union Bank v. Superior Court (1995)
31 Cal.App.4th 574, 590.) Once the
defendant meets this burden, the burden shifts to the plaintiff to show that a “triable
issue of one or more material facts exists as to that cause of action or
defense thereto.” (Ibid.)
The moving party bears the initial
burden of production to make a prima facie showing that there are no triable issues
of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) Until the moving party has discharged its
burden of proof, the opposing party has no burden to come forward with any
evidence. Once the moving party has discharged its burden as to a particular
cause of action, however, the opposing party may defeat the motion by producing
evidence showing that a triable issue of one or more material facts exists as
to that cause of action. (Id. at §437c(p)(2).) On a motion for summary judgment, the moving
party's supporting documents are strictly construed and those of his opponent
liberally construed, and doubts as to the propriety of summary judgment should
be resolved against granting the motion.
(D’Amico v. Board of Medical
Examiners (1974) 11 Cal.3d 1, 21.)
b. Analysis
Plaintiff, through the Declaration
of Richard Scott Booker and exhibits thereto, establishes that Plaintiff and
Defendant entered into a written contract on 12/29/20, pursuant to which
Plaintiff provided chassis transport services and Defendant was to pay for
those services. Booker declares Defendant
breached the terms of the agreement on or about 7/22/21, and $72,800 remains
due and owing. Plaintiff seeks judgment
in the amount of $72,800, plus interest at the rate of 10% from 7/22/21
forward, plus attorneys’ fees and costs.
The proposed order on the motion provides for a total judgment in the amount
of $96,169.60.
Plaintiff does not meaningfully
brief the request for prejudgment interest at the rate of 10% per annum. Civil Code §3287 permits recovery of prejudgment
interest when a person is entitled to recover damages “capable of made certain,”
which is clearly the case here. §3289(b)
provides for interest on a breach of contract case at the rate of 10% per annum. Thus, even though Plaintiff did not brief the
issue, the Court finds Plaintiff is entitled to the interest sought.
The Court’s concern is the amount
of attorneys’ fees sought. The parties’
contract provides for attorneys’ fees in favor of the prevailing party, and is
silent on how those fees should be calculated.
Plaintiff seeks fees in the amount of $18,200, which is 25% of the
contractual breach. Plaintiff provides
absolutely no analysis of how it reached that figure, and does not provide any
attorney declaration establishing what work went into the case or how that
figure is justified.
Notably, the Rules of Court require
attorneys’ fees and costs to be recovered post-judgment, and the Rules provide
a mechanism for recovery of fees and costs.
Plaintiff must file a memorandum of costs to obtain a costs award, and a
motion for attorneys’ fees to obtain an attorneys’ fees award. The Court is not familiar with a procedure
permitting Plaintiff to include these amounts in a summary judgment motion.
Both because the motion improperly
seeks including of attorneys’ fees and costs, and also because the motion fails
to provide evidence in support of the amount of attorneys’ fees sought, the
motion is granted. The Court notes that
it cannot, and will not, enter judgment in the amount of principal plus
interest, as that relief would differ from the relief sought in the notice of
motion and proposed order, and therefore Defendant does not have notice of any alternative
request for relief.
Plaintiff also filed a motion for
writ of attachment. At ¶2 of the
application, Plaintiff indicates it is seeking a writ of attachment against Defendant,
HHM Int’l Inc., a California Corporation.
At ¶9(c), Plaintiff indicates it is looking to attach “Property of a
defendant who is a nature person that is subject to attachment under Code of
Civil Procedure section 487.010 (specify): All bank accounts, accounts
receivables, equipment.” Defendant, however,
is not a natural person. The application
therefore seeks inappropriate relief and is denied.
The parties are reminded that there
is a CMC on calendar concurrently with the hearing on the motion and application. The Court asks the parties to make arrangements
to appear remotely at the CMC and hearing on the above matters.