Judge: Mel Red Recana, Case: 21STCV12869, Date: 2024-02-27 Tentative Ruling
All rulings shown here are TENTATIVE ONLY, and thus oral argument WILL be heard. All Counsel are still required to attend.
Case Number: 21STCV12869 Hearing Date: February 27, 2024 Dept: 45
Hearing
date: February 27, 2024
Moving
Party: Plaintiff Don S. Kovacic
Responding
Party: None.
Motion
for Attorney’s Fees
The Court
considered the moving papers.
The
motion is DENIED.
Background
On
April 5, 2021, Plaintiff Don S. Kovacic (“Plaintiff”) filed a Complaint against
Defendants Michael Clark; Palm Plaza Pet Hospital, LLC; Palm Plaza Pet
Hospital, Inc. (“Defendants”); and DOES 1 through 10, inclusive, alleging
causes of action for (1) Breach of Written Contract; (2) Account Stated; and
(3) Quantum Meruit.
On
June 15, 2021, Defendants filed their Answer.
The
bench trial was held on September 7, 2023, wherein the Court granted judgment
in favor of Plaintiff in the total amount of $944,342.68, consisting of (1)
$503,383.97 in principal damages and (2) $440,958.71 in interest at 12% per
annum from June 30, 2018 until entry of judgment.
On
September 25, 2023, Plaintiff filed this instant Motion for Attorney’s Fees. On
January 25, 2024, Plaintiff filed a Notice of Errata to Motion for Attorney’s
Fees. No opposition has been filed.
Legal
Standard
Civil Code
section 1717 provides in pertinent part: “(a) In any action on a contract,
where the contract specifically provides that attorney’s fees and costs, which
are incurred to enforce that contract, shall be awarded either to one of the
parties or to the prevailing party, then the party who is determined to be the
party prevailing on the contract, whether he or she is the party specified in
the contract or not, shall be entitled to reasonable attorney's fees in
addition to other costs. ... ¶ Reasonable attorney's fees shall be fixed by the
court, and shall be an element of the costs of suit.” (Civ. Code § 1717, subd.
(a).)
Discussion
Plaintiff
Don S. Kovacic (“Plaintiff”) contends he was the prevailing party in this
action. (Mtn. at p. 2, ln. 3.) Plaintiff further contends Exhibit “10” was the
contract between the parties that provided an award of reasonable attorney’s
fees and costs to the prevailing party in an action arising out of or to
enforce any provision of the contract. (Id. at p. 2, lns. 14-20.)
Although
Plaintiff contends Exhibit “10” provides the contract provision entitling him
to attorney’s fees, no such Exhibit is attached to the motion or declaration in
support. Furthermore, Plaintiff’s counsel advances a declaration with his
resume attached to support the request for attorney’s fees but does not submit
any invoices to establish that the amount charged, paid, and to be paid by
Plaintiff is in fact $88,860.00. Moreover, the invoices attached to the
Memorandum of Costs submitted by Plaintiff does not account for the attorney’s
fees requested. As such, Plaintiff does not provide sufficient information to support
attorney’s fees requested in the amount of $88,860.00.
Therefore,
the motion is DENIED.
It
is so ordered.
Dated: February 27, 2024
_______________________
ROLF M. TREU
Assigned Judge of
the Superior Court