Judge Mark E. Windham, Case 20STLC08314 2023-02-02 Tentative Ruling

Judge: Mark E. Windham, Case: 20STLC08314, Date: 2023-02-02 Tentative Ruling

Case Number: 20STLC08314 Hearing Date: February 2, 2023 Dept: 26

CMG Mortgage, Inc. v. Enriquez, et al.

ATTORNEY’S FEES, COSTS AND INTEREST

(Civil Code §§ 1717, 3287; CRC Rules 3.1700, 3.1702, 8.822)

TENTATIVE RULING:

Plaintiff CMG Mortgage, Inc. dba CMG Financial’s Motion for Attorney’s Fees, Costs and Interest is DENIED IN PART AND GRANTED IN PART. THE REQUEST FOR ATTORNEY’S FEES AND COSTS IS DENIED. THE REQUEST FOR INTEREST IS GRANTED AT A RATE OF TEN (10) PERCENT PER ANNUM FROM DECEMBER 3, 2019 UNTIL THE DATE OF ENTRY OF JUDGMENT.

ANALYSIS:

On October 1, 2020, Plaintiff CMG Mortgage, Inc. dba CMG Financial (“Plaintiff”) filed the instant action for breach of contract and common counts against Defendant Byron Enriquez (“Defendant”). The Court granted Plaintiff’s Motion to Deem Requests for Admission Admitted and Request for Monetary Sanctions on March 23, 2022. (Minute Order, 03/23/22.) The case came for trial on April 1, 2022, after which the Court entered judgment in Plaintiff’s favor in the amount of $20,720.00 plus pre- and post-judgment interest, attorney’s fees pursuant to noticed motion and costs pursuant to a memorandum of costs. (Minute Order, 04/01/22; Judgment, 04/07/22.) Notice of Entry of Judgment was served on May 10, 2022. (Notice of Entry of Judgment, filed 05/10/22.)

Plaintiff filed the instant Motion for Attorney’s Fees, Costs, and Interest on October 4, 2022. No opposition has been filed to date.

Discussion

Plaintiff moves for attorney’s fees of $10,442.50, costs of $1,665.72, and pre- and post-judgment interest of $4,816.43 pursuant to Civil Code section 1717 and the applicable costs provision in the parties’ contract. The Court grants Plaintiff’s request for judicial notice of (1) the Court’s Statement of Decision and Judgment; and (2) the Notice of Entry of Judgment.

Entitlement to Attorney Fees

A prevailing party is entitled to recover costs, which can include attorney’s fees, as a matter of right. (Code Civ. Proc., §§ 1032, subd. (a)(4); 1033.5, subd. (a)(10).) This right may arise out of contract, statute or law. (Code Civ. Proc., § 1033.5, subd. (a)(10).) Additionally, a party prevailing on an action on a contract is entitled to attorney fees if the contract contains an attorney’s fees provision. (Civ. Code, § 1717, subd. (a).)

It is undisputed that Plaintiff is the prevailing party in this action, as the party in whose favor judgment was granted. (Code Civ. Proc., § 1032, subd. (a)(4).) It is also undisputed that the parties’ employment agreement, which is the subject of this action, provided for recovery of attorney’s fees by the prevailing party. Paragraph VIII of the agreement sates: “To the extent permitted by any federal, state or local, law, regulation or any agencies thereof, including but not limited to FHA, RESPA and/or HUD, Employee hereby agrees to indemnify and defend CMG Mortgage and its principals for any and all attorney’s fees, costs of prudent settlement, judgments, fines, or damages incurred by Employer as a result Employee’s repeated knowing or intentional breach of the terms of this Agreement.” (Motion, Ferrante Decl., Exh. 2 at ¶VIII.) Therefore, Plaintiff has demonstrated it is entitled to an award of attorney’s fees and costs in this action.

Timing of Motion

“A notice of motion to claim attorney’s fees for services up to and including the rendition of judgment in the trial court . . . must be served and filed within the time for filing a notice of appeal under . . . rules 8.822 and 8.823 in a limited civil case.” (Cal. Rules of Court, Rule 3.1702, subd. (b)(1).) In a limited civil case, a notice of appeal must be filed on or before the earliest of 30 days after service of a document entitled “Notice of Entry” of judgment or 90 days after the entry of judgment. (Cal. Rules of Court, Rule 8.822, subd. (a)(1).) The Court can extend the time for bringing a motion upon a showing of good cause. (Cal. Rules of Court, Rule 3.1702, subd. (d).)

Judgment in this action was entered by the Court on April 7, 2022 and notice of the same was served on May 10, 2022. 30 days after service of the Notice of Entry of Judgment was June 9, 2022. The instant Motion, filed almost four months after the statutory deadline, is untimely. Plaintiff has not demonstrated good cause for the timing of the Motion. Instead, Plaintiff argues, without authority, that the deadline has not yet passed because the Court has not made a finding as to who is the prevailing party, under Civil Code 1717, subdivision (a). (Motion, pp. 4:24-5:2.) There is no language in Civil Code 1717 that the deadline for filing a motion for attorney’s fees is triggered by a prevailing party determination. The statute simply holds that the party who is determined to be the prevailing party is the party that is entitled to attorney’s fees. (Civ. Code, § 1717, subd. (a).

In fact, Plaintiff’s contention that “[n]either the California Rules of Court nor the Code of Civil Procedure provide a deadline” for filing a memorandum of costs, or presumably a motion for attorney’s fees, would allow a party to wait indefinitely to bring a motion for attorney’s fees. This is clearly contrary to the plain language of Cal. Rules of Court rule 3.1702.

Similarly, a request for costs, whether by a memorandum of costs or by a motion for costs, must be brought within the statutory deadline. Under Cal. Rules of Court, Rule 3.1700, subdivision (a)(1): “A prevailing party who claims costs must serve and file a memorandum of costs within 15 days after the date of mailing of the notice of entry of judgment or dismissal by the clerk under Code of Civil Procedure section 664.5 or the date of service of written notice of entry of judgment or dismissal, or within 180 days after entry of judgment, whichever is first.” There is no extension of the time to file for good cause, rather, there is a maximum extension allowed of 30 days. (Cal. Rules of Court, rule 3.1700(b)(3).) Therefore, the deadline to move for costs has expired and Plaintiff’s request must be denied.

Amount of Interest

Civil Code section 3287 provides for the recovery of prejudgment interest on damages. “The purpose of prejudgment interest is to compensate plaintiff for loss of use of his or her property. [Citation.]” (Segura v. McBride (1992) 5 Cal.App.4th 1028, 1041.) Subdivision (a) of Civil Code section 3287 pertains to interest on liquidated claims. One who is “entitled to recover damages certain, or capable of being made certain by calculation ... is entitled also to recover interest thereon” from the time the right to recover arises. (Civ. Code section 3287, subd. (a).)

Here, the damages were capable of being made certain by calculation from the date of Defendant’s breach. Therefore, Plaintiff is entitled to an award of interest from that date, December 3, 2019, at ten percent per annum. (Civ. Code, § 3289, subd. (b).)

Finally, to the extent Plaintiff requests an award of post-judgment interest that is not accounted for by the above language, this may be sought by filing mandatory Judicial Council Form MC-012, “Memorandum of Costs After Judgment, Acknowledgment of Credit, and Declaration of Accrued Interest.”

Conclusion

Moving party to give notice.