Judge Mark E. Windham, Case Number: 18STLC09536, Date: 2023-11-27 Tentative Ruling

Judge: Mark E. Windham, Case: 18STLC09536, Date: 2023-11-27 Tentative Ruling

Case Number: 18STLC09536 Hearing Date: November 27, 2023 Dept: 26

Barro, et al. v. FE Motors, et al.

MOTION FOR ATTORNEY’S FEES AND COSTS

(CCP §§ 1032, 1033.5; Civil Code § 1717)

TENTATIVE RULING:

Cross-Complainant Driveit Financial Services, Inc. dba Driveit Auto Group’s Renewed Motion for Attorney’s Fees and Costs is GRANTED IN THE AMOUNT OF $1,068.69 ATTORNEY’S FEES AND $808.28 COSTS.

ANALYSIS:

On July 13, 2018, Plaintiffs Maria Barro and Mario Barro (“Plaintiffs”) filed the instant action for violation of the Consumers Legal Remedies Act, Unfair Business Act, and Vehicle Code Section 11711 against Defendants FE Motors, Driveit Financial Services, Inc. dba Driveit Auto Group (“Cross-Complainant”) and Hudson Insurance Company. On January 20, 2019, Cross-Complainant filed a cross-complaint against Cross-Defendants Seyedehfatemeh Olaei dba FE Motors, Seyed Ehsan Ayatollah dba FE Motors (“Cross-Defendants FE Motors”), and Hudson Insurance Company (“Cross-Defendant Hudson”). The Cross-Complainant alleged causes of action for (1) statutory indemnity; (2) comparative equitable indemnity; (3) apportionment of fault; (4) declaratory relief; (5) breach of contract; and (6) suit on bond

The Complaint was dismissed on January 14, 2021. Cross-Defendant Hudson was dismissed from the Cross-Complaint on May 24, 2022. The Cross-Complaint then came to trial on June 29, 2022, at which time the Court awarded Cross-Complainant judgment of $13,311.42, with attorney’s fees and costs to be determined. (Minute Order, 06/29/22.) Cross-Complainant filed a proposed judgment on July 6, 2022, which was rejected by the clerk’s office. However, the rejection was not entered until December 1, 2022.

Cross-Complainant filed a Motion for Attorney’s Fees and Costs (“the Motion”) on March 7, 2023. The Motion came for hearing on May 30, 2023, at which time Cross-Complainant appeared. (Minute Order, 05/30/23.) The Court, having reviewed and considered the moving papers, opposition, and reply, denied the Motion without prejudice. (Notice of Ruling, filed 05/31/23.) Cross-Complainant filed the instant Amended Motion for Attorney’s Fees and Costs on August 31, 2023. Concurrently, Cross-Complainant filed a proposed judgment. The Motion was originally set for hearing on November 9, 2023 and continued with notice to November 27, 2023. To date, no opposition has been filed.

Discussion

Entitlement to Attorney’s Fees

A prevailing party in entitled to recover costs, including attorneys’ fees when authorized by contract, law or statute. (Code Civ. Proc., § 1032, subd. (a)(4); § 1033.5, subd. (a)(10).) Similarly, Code of Civil Procedure section 1717 provides that attorneys’ fees and costs shall be awarded to the prevailing party in an action on a contract, where the contract specifically provides for attorneys’ fees and costs. (Code Civ. Proc., § 1717, subd. (a).)

A motion for attorney’s fees must be filed and served with the time for filing a notice of appeal under Cal. Rules of Court Rule 8.822. (Cal. Rules of Court Rule 3.1702(a).) Cal. Rules of Court Rule 8.822 states that an attorneys’ fees motion must be filed within either (1) 30 days after the party filing the motion is served with a document entitled “Notice of Entry” of judgment; or (2) 90 days after entry of judgment. (Cal. Rules of Court 8.822(a)(1).) Here, judgment has yet to be entered, so the motion is timely.

It is undisputed that Cross-Complainant is the prevailing party on the Cross-Complaint, as the party in whose favor judgment was granted. (See Code Civ. Proc., § 1032, subd. (a)(4).) Accordingly, Cross-Complainant is entitled to recover costs under Code of Civil Procedure section 1033.5, subdivision (a). Cross-Complainant is also entitled to recovery attorney’s fees if such recovery is provided for in the contract at issue, or in statute or law. Cross-Complainant contends it is entitled to attorney’s fees under the parties’ contract, as provided for in Civil Code section 1717. The parties’ agreement includes an attorney’s fees provision. (Motion, Elder Jr. Decl., Exh. 1 at § 41.5.) Therefore, Cross-Complainant has demonstrated the existence of a contractual provision that supports the fees requested.

Calculation of Attorney’s Fees

Plaintiff asks for attorney’s fees of $1,068.69 based on the schedule for fees set forth at LASC Rule 3.214. Under Rule 3.214, subdivision (a), in contested cases where the judgment falls between $10,000.01 and $50,000.00, attorney’s fees should be awarded in the amount of $870.00 plus six percent of the amount over $10,000.00. Here, this results in attorney’s fees of $1,068.69.

Request for Costs

Although the motion requests an award of costs, there is no analysis with respect to what costs should be awarded. Cross-Complainant filed a memorandum of costs on March 7, 2023 to which no motion to tax costs has been filed. Accordingly, costs are awarded in the amount of $808.28.

Conclusion

Therefore, Cross-Complainant Driveit Financial Services, Inc. dba Driveit Auto Group’s Renewed Motion for Attorney’s Fees and Costs is GRANTED IN THE AMOUNT OF $1,068.69 ATTORNEY’S FEES AND $808.28 COSTS.

Moving party to give notice.