Judge: Mark E. Windham, Case: 21STLC02544, Date: 2023-01-26 Tentative Ruling
Case Number: 21STLC02544 Hearing Date: January 26, 2023 Dept: 26
MOTION FOR ATTORNEY’S FEES
(CCP §§ 1032, 1033.5; Civil Code § 1717)
TENTATIVE RULING:
Plaintiff
Adalgisa Grazziani’s Motion for Attorneys’ Fees is DENIED.
ANALYSIS:
Plaintiff Adalgisa Grazziani (“Plaintiff”) brought this action for
breach of contract against Defendant Permit My Property, LLC (“Defendant”) on March 30, 2021. The matter came for
trial on September 27, 2022, after which judgment was entered in Plaintiff’s
favor in the amount of $16,751.00 principal and $6,700.00 interest.
(Minute Order, 09/27/22.)
Plaintiff filed the instant
Motion for Attorney’s Fees on October 3, 2022. To date, no opposition has been
filed.
Discussion
A prevailing party in entitled to recover
costs, including attorneys’ fees when authorized by contract. (Code Civ. Proc.,
§ 1032, subd. (a)(4); § 1033.5, subd. (a)(10)(A).) 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 attorney’s 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 a notice of appeal must be filed within either (1) 30
days after the trial court clerk served the party filing the motion with notice
of entry of judgment; (2) 30
days after the party filing the notice of appeal serves or is served by a party
with a document entitled “Notice of Entry” of judgment; or (3) 90 days after
entry of judgment. (Cal. Rules of Court 8.822(1).) Here, judgment was entered
on September 27, 2022 and the instant motion was timely filed on October 3,
2022.
It is undisputed that Plaintiff is the
prevailing party in this action, as the party in whose favor the judgment was entered.
(See Code Civ. Proc., § 1032, subd. (a)(4).) Accordingly, it is entitled to
recover its costs under Code of Civil Procedure section 1033.5, subdivision
(a). It is also entitled to recovery its attorney’s fees if such recovery is
provided for in the contract at issue, as Plaintiff argues.
However, the parties’ contract only provides
for recovery of attorney’s fees by the prevailing party following arbitration.
The attorney’s fees are specifically provided for in the arbitration provision,
as follows:
BINDING
ARBITRATION / LEGAL DISPUTES: The two parties to this Agreement, the Client and
PMP, agree that all claims, disputes, and other matters in question between
parties to this Contract, arising out of or relating to the work of this
Contract or the breach thereof, or relating to any of the work or relationships
referred to in this Contract, shall be decided by binding arbitration in
accordance with the Construction Industry Arbitration Rules of the American
Arbitration Association; unless the parties mutually agree in writing
otherwise. . . . In the event of any Arbitration dispute between the
parties arising out of or in connection with this Agreement or PMP's
performance of Services, the prevailing party shall be entitled to cover its
costs incurred in connection with the non-prevailing party, including
reasonable attorney fees; to the extent awarded. In the event any of
the parties to this Contract shall seek to resolve any matter through
arbitration as set forth herein, the arbitration shall be conducted in Los
Angeles County, California.
(Motion, Staree Decl., Exh. A,” ¶X.) Plaintiff
does not explain how the provision for attorney’s fees under the arbitration
agreement can be read to find that the parties agreed to an award of attorney’s
fees following litigation. (See Motion, p, 5:3-14.) In fact, the more
reasonable interpretation is that attorney’s fees were only included in the
arbitration provision as an incentive to arbitrate. The plain language of the
contract, therefore, does not provide for an award of attorney’s fees to the
party that prevails in litigation.
Conclusion
Based
on the foregoing, Plaintiff Adalgisa Grazziani’s Motion for Attorneys’ Fees is DENIED.
Court
clerk to give notice.