Judge: Mark E. Windham, Case: 21STLC04322, Date: 2023-03-22 Tentative Ruling

Case Number: 21STLC04322    Hearing Date: March 22, 2023    Dept: 26

Doyle v. Eschrich, et al.
MOTION FOR ATTORNEY’S FEES

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

TENTATIVE RULING:

Defendant Moet Fawaz’s Motion for Order Awarding Attorney’s Fees is GRANTED IN THE AMOUNT OF $24,000.00.    

ANALYSIS:

On June 6, 2021, Plaintiff William Doyle dba Collection Network (“Plaintiff”) filed the Complaint in this action against Defendants Zachary Kim Eschrich dba K M Engineering Construction, Kime Engineering Construction, Inc., Katie Stahl and Moet Fawaz aka Mohammed Moet Fawaz (“Defendant Fawaz”).

On October 28, 2021, the Court granted Defendant Fawaz’s Motion to Quash Service. (Minute Order, 10/28/21.) On February 1, 2022, Plaintiff filed Proof of Substituted Service and a Request for Entry of Default against Defendant Fawaz. Default was entered against Defendant Fawaz on the same date.

On March 25, 2022, the parties stipulated to vacate the default and to allow Defendant Fawaz to file a responsive pleading. (Stip and Order, filed 03/25/22.) On April 19, 2022, Defendant Fawaz filed a Demurrer to the Complaint. The Court sustained the Demurrer to the Complaint without leave to amend as to the first, second and third causes of action, and with leave to amend as to the fourth cause of action. (Minute Order, 05/16/22.)

Plaintiff filed the First Amended Complaint on May 23, 2022. On July 19, 2022, the Court sustained Defendant Fawaz’s Demurrer to the First Amended Complaint without leave to amend. (Minute Order, 07/19/22.) On August 23, 2022, Plaintiff filed a Notice of Appeal, which was designated Case No. BV033872. A default was issued for the Appeal on September 22, 2022. (Notice of Default, 09/22/22.) The Appeal was dismissed on November 16, 2022 for Plaintiff’s failure to cure the default. (Appellate Order Dismissing Appeal, 11/16/22.)

Judgment was entered in Defendant Fawaz’s favor in the trial court on December 5, 2022. (Judgment, 12/05/22.) Defendant Fawaz filed the instant Motion for Attorney’s Fees on December 6, 2022. Plaintiff filed an opposition on February 10, 2023 and Defendant Fawaz replied on March 2, 2023. Regarding Plaintiff’s “rebuttal to reply” filed on March 2, 2023, the Court exercises its discretion to disregard the unauthorized filing.

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 attorneys’ 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 trial court clerk served the party filing the motion with notice of entry of judgment; or (2) 90 days after entry of judgment. (Cal. Rules of Court 8.822(1).) Here, judgment was entered on December 5, 2022 and the instant Motion was timely filed on December 6, 2022.

It is undisputed that Defendant Fawaz is the prevailing party in this action, as a defendant against whom Plaintiff recovered no relief. (See Code Civ. Proc., § 1032, subd. (a)(4).) Accordingly, Defendant Fawaz is entitled to recover costs under Code of Civil Procedure section 1033.5, subdivision (a). Those costs may include attorney’s fees if so provided for by statute, contract, or law. (Code Civ. Proc., § 1033.5, subd. (a)(10).

Defendant Fawaz argues that he is entitled to attorney’s fees under the line of credit contract at issue in this action, pursuant to Civil Code section 1717. The allegations in the First Amended Complaint are as follows: Plaintiff is the assignee of PDQ Rentals, Inc. dba PDQ Rentals (“PDQ”) with respect to the claims asserted in this action. (FAC, ¶¶7-8.) On September 23, 2019, Defendant Eschrich applied for a line of credit from PDQ to rent equipment and became indebted in the amount of $24,975.00. (Id. at ¶¶14, 17.) The equipment rented by Defendant Eschrich was used at a work of improvement located at 3703 Liberty Canyon Road, Agoura Hills, California. (Id. at ¶42.) The owner of that real property is Defendant Fawaz. (Id. at ¶42.) After PDQ furnished equipment, it filed a preliminary 20-day notice on Defendant Fawaz on September 1, 2020. (Id. at ¶44 and Exh. 11.) On or about January 8, 2021, PDQ ceased to provide work, labor, services, equipment and materials to the work of improvement. (Id. at ¶46.) PDQ filed and recorded its claim of mechanic’s lien on March 16, 2021 in the amount of $24,975.00. (Id. at ¶¶47 and 49 and Exh. 12.)

The First Amended Complaint alleged a single cause of action for foreclosure of mechnic’s lien against Defendant Fawaz. The Court sustained Defendant Fawaz’s demurrer to the foreclosure of mechanic’s lien without leave to amend. The Motion for Attorney’s Fees fails to demonstrate that the cause of action for foreclosure of mechanic’s lien is an action on contract under Civil Code section 1717. The Court of Appeals has upheld a trial court’s determination that “there [is] no availability of fees in an action to establish and enforce a mechanic’s lien.” (Wilson’s Heating & Air Conditioning v. Wells Fargo Bank (1988) 202 Cal.App.3d 1326, 1330.) Therefore, Defendant Fawaz is not entitled to attorney’s fees for prevailing on that cause of action

Defendant Fawaz’s argument that he is entitled to fees up to the ruling on the Demurrer to the Complaint because the Complaint did not specify which causes of action applied to which Defendants, has more merit. Plaintiff’s failure to specify that only the cause of action for foreclosure of mechanic’s lien in the Complaint was brought against Defendant Fawaz forced him to demur to all the causes of action, including the contract causes of action. Civil Code section 1717’s reciprocity provision has been expanded “to permit one not party to a contract to nevertheless recover fees when actually sued on the contract.” (Wilson's Heating & Air Conditioning v. Wells Fargo Bank (1988) 202 Cal.App.3d 1326, 1333.) Plaintiff’s sloppy pleading of the causes of action in the Complaint forced Defendant Fawaz to the demur to the contract causes of action therein, and he is entitled to recover attorney’s fees incurred as a result.

Calculation of Attorney’s Fees

Plaintiff asks for attorney’s fees of $ $24,687.50 as of the filing of this Motion, with an additional anticipated $1,500.00 to address the opposition. (Motion, p. 6:2-3; Kurtz Decl., ¶3 and Exh. 1.) The fees are based on an hourly rate of $500.00. (Motion, Kurtz Decl., ¶2.) Plaintiff’s attorney indicates that the hourly rate is reasonable because he has been practicing for 30 years. (Id. at ¶8.) The number of years of experience of these attorneys, however, is not the only consideration for a reasonable hourly rate.

“In making its calculation [of a reasonable hourly rate], the court may rely on its own knowledge and familiarity with the legal market, as well as the experience, skill, and reputation of the attorney requesting fees [citation], the difficulty or complexity of the litigation to which that skill was applied [citations], and affidavits from other attorneys regarding prevailing fees in the community and rate determinations in other cases.” (569 East, supra, 6 Cal.App.5th at p. 437, 212 Cal.Rptr.3d 304; see Mountjoy, supra, 245 Cal.App.4th at p. 272, 199 Cal.Rptr.3d 495 [“ ‘ “a reasonable hourly rate is the product of a multiplicity of factors .... [including] the level of skill necessary, time limitations, the amount to be obtained in the litigation, the attorney's reputation, and the undesirability of the case” ’ ”].)

(Morris v. Hyundai Motor America (2019) 41 Cal.App.5th 24, 41.) The Court notes that this case involves a specialized area of law regarding mechanic’s liens and a complex issue of whether the claim of lien had been recorded in a timely manner. (See Minute Order, 07/19/22.) The $500.00 per hour fee, therefore, is appropriate.

Regarding whether the number of hours was reasonable, Plaintiff’s counsel billed 40.75 hours through the May 16, 2022 demurrer to the Complaint, which resolved the contract causes of action. Work on the demurrer to the First Amended Complaint, addressing only the mechanic’s lien, is not recoverable as explained above. An additional 7.25 hours are reasonably billed for the entry of judgment for total hours of 48 hours. Plaintiff, therefore, is awarded attorney’s fees of $24,000.00.

Conclusion

Defendant Moet Fawaz’s Motion for Order Awarding Attorney’s Fees is GRANTED IN THE AMOUNT OF $24,000.00.

Moving party to give notice.