Judge: Michael P. Linfield, Case: 21STCV24935, Date: 2022-11-10 Tentative Ruling

Case Number: 21STCV24935    Hearing Date: November 10, 2022    Dept: 34

SUBJECT:                 Motion for Attorney’s Fees and Costs

Moving Party:          Plaintiff HCP MOP California, LP  

Resp. Party:            None

Plaintiff’s Motion for Attorneys’ Fees and Costs is GRANTED in part. The request for attorney's fees pursuant to the contract is denied.  The request for costs in the amount of $1,764.00 is granted.

BACKGROUND:

On July 7, 2021, Plaintiff HCP MOP California, LP filed its Complaint against Defendants Stella Koletic, D.D.S., Inc. and Stella Koletic on causes of action of breach of written lease, account stated, money had and received, and breach of written guaranty.

On October 7, 2021, Defendant Stella Koletic, in propria persona, filed her Answer.

On January 3, 2022, by request of Plaintiff, the Clerk’s Office dismissed without prejudice Defendant Stella Koletic, D.D.S., Inc. from the Complaint.

On February 18, 2022, Defendant filed her Amended Answer.

On September 7, 2022, by request of Plaintiff, the Clerk’s Office dismissed without prejudice the fourth cause of action for breach of written guaranty from the Complaint.

On September 13, 2022, the Court granted Plaintiff’s Motion for Summary Judgment and denied as moot Plaintiff’s Motion for Terminating Sanctions.

On October 3, 2022, the Court issued its Judgment in favor of Plaintiff and against Defendant in the amount of $143,761.39.

On October 6, 2022, Plaintiff filed its Memorandum of Costs.

On October 14, 2022, Plaintiff filed its Motion for Attorney’s Fees and Costs.

Defendant has not filed an opposition or other response to the Motion for Attorney’s Fees and Costs.

On October 21, 2022, Defendant filed her Motion to Reconsider, which regards the previously-granted Motion for Summary Judgment.

ANALYSIS:

I.           Legal Standard

“Except as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.” (Code Civ. Proc., § 1032, subd. (b).) 

“‘Prevailing party’ includes the 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).) 

Attorneys’ fees are allowed as costs when authorized by contract, statute, or law. (Code Civ. Proc, § 1033.5, subd. (a)(10)(B).)  

II.        Discussion

A.      The Parties’ Arguments

Plaintiff moves the Court to award Plaintiff $49,742.75 in attorney’s fees and costs. (Motion, p. 8:3–6.) Plaintiff breaks down these amounts as follows:

1.   $47,978.75 in attorney’s fees, which is comprised of:

a.   Partner Mark Rosenbaum, who worked 39.0 hours at a rate of $650.00 per hour;

b.   Partner Elsa Horowitz, who worked 36.25 hours at a rate of $625.00 per hour; and

c.   A paralegal, who worked 3.25 hours at a rate of $190.00 per hour.

2.   $1,764.00 in costs, which is comprised of:

a.   $1,175.00 in filing and motion fees;

b.   $95.00 in service of process fees;

c.   $300.00 in attachment expenses; and

d.   $194.00 in electronic filing or service fees.

(Motion, Rosenbaum Decl., ¶¶ 11, 13, 14; Memorandum of Costs, Items 1, 5, 6, 10, 14.)

Plaintiff argues that Plaintiff is the prevailing party, that the lease agreement allows Plaintiff to recoup its attorneys’ fees incurred in obtaining the judgment, that Plaintiff is entitled to its costs, and that the attorney’s fees are reasonable. (Motion, pp. 3:15, 4:23–24, 5:16, 5:27.)

        Defendant has not opposed or otherwise responded to the Motion for Attorney’s Fees and Costs.

B.      Prevailing Party

Judgment was entered for Plaintiff in the amount $143,761.39 on October 3, 2022.  It is undisputed that Plaintiff is the prevailing party.

C.      Attorney’s Fees

Plaintiff is only entitled to attorney’s fees if they have been “authorized by contract, statute, or law.” (Code Civ. Proc, § 1033.5, subd. (a)(10)(B).) 

Plaintiff argues that the attorney’s fees have been authorized by section 13.1(a) of the lease agreement, which states in relevant part:

“In the event an event of default occurs on the part of Tenant . . . Landlord may exercise one or more of the following described remedies . . .

“(a) . . . Tenant shall be liable immediately to Landlord for all costs Landlord incurs in reletting the Premises, including, without limitation, brokers’ commissions, expenses of remodeling the Premises required by the reletting, attorneys’ fees and costs and like costs. . . .”

(Motion, p. 4:7–20; Ex. 1, p. 2.)

The primary issue here is that the plain language of the lease provision cited by Plaintiff does not authorize attorney's fees in this situation.  Plaintiff cites to Section 13.1, subdivision (a) of the Lease Agreement, which is clearly about “reletting the Premises.” (Complaint, Ex. 1, Sec. 13.1, subd (a).) The Complaint had four causes of action for 1) breach of written lease, 2) account stated, 3) money had and received and 4) breach of written guaranty.  (See Complaint.)  Plaintiff previously dismissed the fourth cause of action and the Court granted summary judgment on the first three causes of action. 

Plaintiff did not incur any expenses in reletting the premises, as required by the attorney's fees provision of § 13.1(a) of the lease.  In fact, possession was never at issue in this lawsuit; the lawsuit was filed after Plaintiff vacated the premises.  (See Complaint, ¶ 17.)

Plaintiff’s request for attorney's fees is based solely on §13.1(a) of the lease.  (See Motion, p. 4:5-20.)  However, even if the Court were to consider the other sections of the lease, it would still not grant attorney's fees.  Other subsections of §13.1 (“Remedies”) of the lease – subsections that have not been cited by Plaintiff – allow for the recovery of attorney's fees for “recovering pressions of the premises.”  (Complaint, Ex. 1, §13.1(b) and (c).)  However, as stated above, neither of those would apply here because Defendant had already vacated the premises by the time the Complaint was filed.  Plaintiff prevailed on recovering unpaid rent; it did not sue to recover possession.

Although the contract provision is clear that it does not include attorney's fees to recover unpaid rent, the Court also notes that the contract was prepared by Plaintiff and Defendant is not a lawyer.  Thus, even if there any ambiguity, the Court would construe the contract against Plaintiff. (See CACI 320.) “The doctrine of contra proferentem (construing ambiguous agreements against the drafter) applies with even greater force when the person who prepared the writing is a lawyer.” (Mayhew v. Benninghoff (1997) 53 Cal.App.4th 1365, 1370.)

The Court does not see – and Plaintiff has not cited to – any other provisions of the lease that allow for attorney's fees.

Plaintiff has not pointed the Court to any authority in contract, statute, or law that authorizes recovery of attorney’s fees in this matter.  The request for attorney's fees pursuant to contract is denied.    

D.      Costs

Plaintiff lists costs in the amount of $1,764.00. (Memorandum of Costs.) Defendant has not filed a Motion to Tax or otherwises disputed these costs. The Court will award costs in the amount of $1,764.00.

III.     Conclusion

Plaintiff’s Motion for Attorneys’ Fees and Costs is GRANTED in part. The request for attorney's fees pursuant to the contract is denied.  The request for costs in the amount of $1,764.00 is granted.