Judge: Mark H. Epstein, Case: 21SMCV00320, Date: 2023-08-23 Tentative Ruling

Case Number: 21SMCV00320    Hearing Date: January 5, 2024    Dept: I

Plaintiff had a bicycle concession at defendant’s hotel.  It had been going on for a number of years pursuant to a concession agreement that had been extended from time to time.  The most recent one expired on September 30, 2016, but there is an email exchange stating that it would be extended again until October 2021.  In mid- 2020, defendant gave plaintiff 60 days’ notice of termination of the concession agreement.  Plaintiff sued and sought—on multiple occasions—a preliminary injunction or TRO to allow him to stay on the property.  Those motions were denied because the court found that plaintiff had not shown a likelihood of success on the merits.  The written contracts all had fee-shifting clauses.  Defendant obtained summary judgment and now seeks fees.

There is an initial question whether fees are recoverable.  Defendant has argued, with force although ultimately not fully successfully, that the last contract expired in 2016.  If that is the case, one might argue that there is no written contract—only an oral agreement that could be terminated—and thus no fee clause.  Defendant’s response is that the 2016 email exchange stated that all of the terms and conditions would remain the same (except the termination date and certain other provisions not relevant here), and thus the fee clause was incorporated into the present arrangement.  Further, defendants state, plaintiff contended that this exchange constituted a contract extension and testified at his deposition that all of the terms pertinent here remained the same.  Having elected to sue on the purported contract, which plaintiff claimed was the same as the prior written contract in all material respects, the fee clause carries forward.

The fees must also be reasonable.  These fees are pretty darn hefty.  Defendants seek $526,724.45.  That is a lot of money.  Plaintiff claims these fees are too high, but he does not explain why nor does he point to any specific aspect he claims is excessive.  It is his burden to do so.  (Premier Medical Management Systems, Inc. v. California Insurance Guarantee Assn. (2008) 163 Cal.App.4th 550.)  The court also well recalls that plaintiff brought multiple motions seeking injunctive relief.  Each had to be opposed.  At the last hearing, the court stated that the motion would be granted, but only as to the amount actually billed and collected.  The court directed defendant to submit a supplemental declaration with that figure.  Defendant has done so.  Accordingly, the motion for fees and costs is GRANTED in the amount of $489,345.66.  

Plaintiff asks that the award be stayed pending appeal.  Such a stay is more properly made by separate motion.  Therefore, the court denies that request, but WITHOUT PREJUDICE to renewal.  The court makes no comment on what, if anything, plaintiff needs do to stay enforcement of the judgment pending appeal given that the judgment is for costs (including fees) only.  (Code Civ. Proc. sec. 917.9 subd. (a)(3).)