Judge: Maurice A. Leiter, Case: 22STCV01203, Date: 2023-08-24 Tentative Ruling

Case Number: 22STCV01203    Hearing Date: February 5, 2024    Dept: 54

Hearing Date: February 5, 2024

Department 54, Judge Maurice A. Leiter

Motion to Set Aside Judgment;

Motion for Attorney’s Fees

T/R:      DEFENDANT’S MOTION TO SET ASIDE JUDGMENT IS DENIED.

PLAINTIFF’S MOTION IS GRANTED IN THE REDUCED AMOUNT OF $58,269.75 IN ATTORNEY’S FEES AND $3,302.44 IN COSTS.

PLAINTIFF TO NOTICE.

If the parties wish to submit on the tentative, please email the courtroom at SMCdept54@lacourt.org with notice to opposing counsel (or self-represented party) before 8:00 am on the day of the hearing. 

The Court considers the moving papers, oppositions, and replies.

A. Defendant Chol Enterprises Inc.’s Motion to Set Aside Judgment

CCP § 473(b) provides, in pertinent part, “[t]he court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.”

Defendant moves to set aside the judgment entered in favor of Plaintiff and against Defendant on August 29, 2023 following determination of Defendant’s motion to enforce settlement, on the grounds of attorney error and excusable neglect.

Defendant asserts that Defendant’s former counsel did not understand that when the Court granted Plaintiff’s request for live testimony at the August 24, 2023 hearing on the motion to enforce settlement the testimony would be offered the same day. Defendant argues that this prevented former counsel from properly cross-examining Plaintiff’s witnesses or offering contrary evidence.

In opposition, Plaintiff argues the motion should be denied because Defendant has not shown excusable neglect. The Court agrees. Defendant had notice of the request for live testimony in the motion itself, and Defendant did not request an extension or continuance. Defendant was able to cross-examine Plaintiff’s witnesses, Defendant offered extensive evidence in opposition to the motion, and the parties had been arguing over the subject of testimony (who must install the standpipes) for six months. Defendant had adequate notice and opportunity to be heard.

Defendant’s motion is DENIED.

B. Plaintiff 740 South Broadway Associates, LLC’s Motion for Attorney’s Fees

The prevailing party in “any action on a contract” shall be awarded reasonable attorney’s fees incurred to enforce that contract where the contract specifically provides for attorney’s fees.  (Civ. Code § 1717(a).)

Plaintiff moves for $88,934.25 in attorney’s fees and $3,302.44 costs in connection with enforcing the settlement agreement. These fees were incurred between November 2022 and September 2023. In opposition, Defendant asserts Plaintiff should not recover fees incurred before Plaintiff filed its first unsuccessful motion to enforce settlement, Plaintiff’s counsel’s hours and hourly rates are unreasonable and Plaintiff’s memorandum of costs is untimely.

The Court agrees that Plaintiff should not recover fees and costs incurred prior to the May 2, 2023 hearing denying Plaintiff’s first motion to enforce settlement. Plaintiff is not entitled to fees that were incurred in unsuccessfully attempting to enforce the settlement. As for the remaining fees and hourly rates, the Court finds them reasonable. Plaintiff timely served its memorandum of costs.

Plaintiff’s motion is GRANTED in the reduced amount of $58,269.75 in attorney’s fees and $3,302.44 in costs.