Judge: Michael E. Whitaker, Case: SC128603, Date: 2024-10-31 Tentative Ruling

Case Number: SC128603    Hearing Date: October 31, 2024    Dept: 207

TENTATIVE ruling

MOTION

This case arises from a dispute over a commercial lease.  On August 18, 2022, the Court granted summary judgment in favor of Defendants Pellequr LLC; Anna Margaryan; Dennis Colonello; and Steven Yoon Shin (“Defendants”).  Judgment was entered on September 19, 2022.  Plaintiff Elite Financial Realty, LLC (“Plaintiff”) timely appealed on October 3, 2022.  The appellate court affirmed the judgment and the remittitur issued on October 10, 2024. 

Defendants now move to recover their attorneys’ fees and costs incurred after judgment was entered in the amount of $82,001.15.  The motion is unopposed.[1]

ANALYSIS

Code of Civil Procedure section 1033.5, which outlines recoverable costs to a prevailing party under Code of Civil Procedure section 1032, permits the recovery of attorneys’ fees when authorized by contract, statute, or law.  (Code Civ. Proc.. § 1033.5, subd. (a)(10).)  Code of Civil Procedure section 1021 provides:  “[e]xcept as attorney’s fees are specifically provided for by statute, the measure and mode of compensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties [….]” 

Similarly, Civil Code section 1717 provides:  “[i]n 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.”  (Civ. Code, § 1717, subd. (a).)  The Code of Civil Procedure defines the “prevailing party” as follows:

[T]he party with a net monetary recovery, a defendant in whose favor a dismissal is entered, a defendant where neither plaintiff nor defendant obtains any relief, and a defendant as against those plaintiffs who do not recover any relief against that defendant. If any party recovers other than monetary relief and in situations other than as specified, the “prevailing party” shall be as determined by the court, and under those circumstances, the court, in its discretion, may allow costs or not and, if allowed, may apportion costs between the parties on the same or adverse sides pursuant to rules adopted under Section 1034.

(Code Civ. Proc., § 1032, subd. (a)(4).)  Because Summary Judgment was entered in Defendants’ favor, and Plaintiff recovered nothing by the lawsuit, Defendants are “prevailing parties” in this action.

Although Defendants did not attach a copy of the lease agreement to this motion, the Court notes that in connection with its August 18, 2022 summary judgment ruling, the Court found:

Section 31 of the lease states, in pertinent part “If any Party or Broker brings an action or proceeding involving the Premises whether founded in tort, contract or equity or to declare rights hereunder, the Prevailing Party (as hereafter defined) in any such proceeding, action, or appeal thereon, shall be entitled to reasonable attorneys’ fees… The term ‘Prevailing Party’ shall include, without limitation, a Party or Broker who substantially obtains or defeats the relief sought, as the case may be, whether by compromise, settlement, judgment, or the abandonment by the other Party or Broker of its claim or defense.” (Ex. 2 to Margaryan Decl.) The guaranty executed by Defendants Anna Margaryan, Dennis Colonello, and Steven Yoon Shin similarly provides “In the event any action be brought by said Lessor against Guarantors hereunder to enforce the obligation of Guarantors hereunder, the unsuccessful party in such action shall pay to the prevailing party therein a reasonable attorney’s fee.” (Id.)

(Minute Order, Aug. 18, 2022 at p. 9.)  Therefore, Defendants are generally entitled to their reasonable attorneys’ fees.

            In support of the motion, Defendants have provided records for attorneys’ fees incurred at a rate of $400/hour, set forth as follows:

·       First year – 9/30/22 - 9/29/23 – 108 hours - $43,200

·       Second year – 9/30/24 – 9/1/19 (sic) – 131 hours - $52,400

(Ex. A to Tumpson Decl.)

            The Court notes that the $43,200 + $52,400 = $95,600 attorneys’ fees incurred exceed the $81,776.83[2] in attorneys’ fees requested, and Plaintiff has not opposed the motion to challenge the reasonableness of the attorneys’ fees.

Conclusion

Therefore, the Court grants Defendants’ unopposed motion for attorneys’ fees only in the amount of $81,776.83. 

Further, Defendants shall file and serve a proposed Order in conformance with the Court’s ruling on or before November 15, 2024. 

Further, Defendants shall provide notice of the Court’s ruling and file the notice with a proof of service forthwith.

DATED:  October 31, 2024                                                   ___________________________

                                                                                          Michael E. Whitaker

                                                                                          Judge of the Superior Court