Judge: Matthew C. Braner, Case: 37-2022-00030947-CU-BC-CTL, Date: 2023-09-15 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - September 14, 2023

09/15/2023  09:00:00 AM  C-60 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Matthew C. Braner

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Civil - Unlimited  Breach of Contract/Warranty Motion Hearing (Civil) 37-2022-00030947-CU-BC-CTL THE RUSHING COMPANY LLC VS CAYDON SAN DIEGO PROPERTY LLC [IMAGED] CAUSAL DOCUMENT/DATE FILED:

Defendant Caydon San Diego Property LLC's motion for attorneys' fees and costs is DENIED.

Defendants seek attorney's fees under Civil Code section 1717 for prevailing on the breach of oral contract claim.

'The court, upon notice and motion by a party, shall determine who is the party prevailing on the contract for purposes of this section [1717], whether or not the suit proceeds to final judgment.' (Civ. Code § 1717(b)(1).) Except for circumstances not applicable here, 'the party prevailing on the contract shall be the party who recovered a greater relief in the action on the contract. The court may also determine that there is no party prevailing on the contract for purposes of this section.' (Id.) First, the court questions whether a decision on attorneys' fees is appropriate at this time in light of the still-pending appeal (No. D081489). Second, Defendant did not actually succeed 'on' the contract claim.

Rather, the court agreed that the forum selection clause in the written draft of the oral contract allegedly entered into between Plaintiff The Rushing Company and Defendant was an enforceable mandatory forum selection clause and that the case needed to be heard in the agreed upon forum in Texas.

Plaintiff's claims were thereafter dismissed without prejudice only because it did not refile its case in Texas. Defendant contends that it has essentially achieved a complete victory because Plaintiff can no longer file in Texas without running afoul of statutes of limitations issues. However, this is the kind of issue that would need to be heard and decided in a Texas court; to the extent this court has any say in the matter, it would only be if Plaintiff's pending appeal of the order finding against it on the forum selection clause issue was successful. But in that event, the case would return to a neutral state and no party will have yet prevailed.

Consequently and on balance, neither party has yet prevailed sufficiently to justify an award of attorney fees. In light of this, the court need not reach Plaintiff's additional arguments as to the lodestar calculation.

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