Judge: Mark E. Windham, Case: 21STLC04469, Date: 2023-01-04 Tentative Ruling

Case Number: 21STLC04469    Hearing Date: January 4, 2023    Dept: 26

MOTION FOR ATTORNEY’S FEES AND COSTS

(Civil Code § 52(a))

TENTATIVE RULING: 

Plaintiff Brian Whitaker’s Motion for Attorney’s Fees and Costs is DENIED.

ANALYSIS:

Plaintiff Brian Whitaker (“Plaintiff”) filed the instant action for violation of the Unruh Civil Rights Act (“the Unruh Act”) against Defendants Emilia M. Rodriguez and Old Town Restaurant, LLC (“Defendant”) on June 14, 2021. Plaintiff filed the First Amended Complaint on September 15, 2021, dropping Emilia M. Rodriguez from the action. On January 10, 202, Defendant filed its Answer.

The parties filed a Notice of Settlement on February 8, 2022 and requested entry of judgment pursuant to Code of Civil Procedure section 998 on May 26, 2022. Judgment on was entered on May 27, 2022. Plaintiff filed the instant Motion for Attorney’s Fees and Costs on July 26, 2022. Defendant filed an opposition on October 17, 2022 and Plaintiff replied on November 10, 2022.

Discussion

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 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).) The parties can stipulate to extend the deadline by 30 days in a limited civil case. (Cal. Rules of Court, Rule 3.1702(a)(1)(A). Here, the parties stipulated to extend the deadline by 30 days to July 26, 2022.

On the substantive basis for attorney’s fees and costs, the parties’ 998 agreement provides that Plaintiff shall be entitled to recover all reasonably incurred attorney’s fees and costs allowed under the ADA and UCRA. (Request for Entry of Judgment, filed 05/26/22, Exh. 1, p. 2:3-6.) Contrary to Plaintiff’s assertion, the parties have not stipulated in the 998 offer that Plaintiff would recover all attorney’s fees to date. (See Motion, p. 1:22-23.) Rather, the 998 offer only expressly provides for attorney’s fees and costs as allowed under the ADA and UCRA. (Request for Entry of Judgment, filed 05/26/22, Exh. 1, p. 2:3-6 [emphasis added].) There being no separate contractual right to attorney’s fees and costs created by the parties’ settlement under the 998 offer, Plaintiff must demonstrate it is entitled to attorney’s fees and costs under these statutes.

As Plaintiff points out, section 52, subdivision (a) of the Unruh Civil Rights Act (“the UCRA”) provides for attorney’s fees and costs to the prevailing party, as follows: 

Whoever denies, aids or incites a denial, or makes any discrimination or distinction contrary to Section 51, 51.5, or 51.6, is liable for each and every offense for the actual damages, and any amount that may be determined by a jury, or a court sitting without a jury, up to a maximum of three times the amount of actual damage but in no case less than four thousand dollars ($4,000), and any attorney’s fees that may be determined by the court in addition thereto, suffered by any person denied the rights provided in Section 51, 51.5, or 51.6.

(Civ. Code, § 52, subd. (a).) In Doran v. North State Grocery, Inc. (2006) 137 Cal.App.4th 484, the Court of Appeals reversed the trial court’s award of attorney’s fees because “the plain language of section 52, subdivision (a), requires a finding that the defendant has denied the plaintiff rights guaranteed by section 51, 51.5, or 51.6 [of the UCRA] before the plaintiff can recover attorney fees under section 52.” (Id. at 491.) The Court of Appeals went on to hold that the judgment based on the offer of compromise did not constitute a finding of liability against the defendant. (Ibid.)

Doran is distinct from the facts of this case because that 998 offer did not include an apportionment of attorney’s fees, which the Court of Appeals pointed out. (See id. at 492.) Here, the parties’ 998 offer did include a provision for Defendant to pay Plaintiff’s attorney’s fees and costs, but only as provided for under the ADA or URCA. This comports with the well-established rule that attorney’s fees provisions in 998 offers to compromise do not exceed the right to attorney’s fees under the charging statute. (Mangano v. Verity, Inc. (2008) 167 Cal.App.4th 944, 951 [“section 998 does not grant greater rights to attorney's fees than those provided by the underlying statute.”]; Ford Motor Credit Co. v. Hunsberger (2008) 163 Cal.App.4th 1526, 1532 [“Section 998 is a cost-shifting statute that allows for the recovery of costs, including attorney fees as costs if there is a contractual or other statutory basis for them. Stated differently, section 998 does not independently create a statutory right to attorney fees. . . .”].)

As explained in Doran, attorney’s fees under Civil Code section 52, subdivision (a) are only allowed upon a finding that the defendant violated Civil Code sections 51, 51.5, or 51.6, and the 998 offer to compromise must expressly set forth this finding of liability. Like in Doran, however, the parties’ offer to compromise in this case did not include a determination of liability under the sections 51, 51.5 or 51.6 of the UCRA. Therefore, Plaintiff has not demonstrated it is the prevailing party in this action such that it is entitled to an award of attorney’s fees and costs under the UCRA.

Finally, Plaintiff’s reliance on the costs provision of the ADA is unavailable because this action was not brought under that statute. The Complaint alleges a single cause of action for violation of the UCRA and only seeks attorney’s fees and costs under the state law statute. (See Compl., p. 6:12-20.)

Conclusion

Plaintiff Brian Whitaker’s Motion for Attorney’s Fees and Costs is DENIED.

Court clerk to give notice.