Judge Michael P. Linfield, Case 21STCV24935 2022-12-08 Tentative Ruling

Judge: Michael P. Linfield, Case: 21STCV24935, Date: 2022-12-08 Tentative Ruling

Case Number: 21STCV24935 Hearing Date: December 8, 2022 Dept: 34

SUBJECT: Motion for Attorney’s Fees and Costs

Moving Party: Plaintiff HCP MOP California, LP

Resp. Party: Defendant Stella Koletic

Plaintiff’s Motion for Attorneys’ Fees and Costs is GRANTED in part and DENIED in part. The request for attorney's fees of $47,978.75 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 original Motion for Attorney’s Fees and Costs (“Original Motion”).

Defendant did not file an opposition or other response to the Original Motion.

The Court issued a tentative ruling on the Original Motion several days in advance of the previously-scheduled hearing set for November 10, 2022.

On November 8, 2022, Plaintiff filed its Notice of Taking Motion for Attorney’s Fees and Costs Off Calendar.

On November 9, 2022, Plaintiff filed its new Motion for Attorney’s Fees and Costs (“New Motion”).

On December 5, 2022, Defendant filed her Opposition. The Court notes that Defendant’s Opposition was filed late.

Also on December 5, 2022, Plaintiff filed its Reply.

On December 7, 2022, Plaintiff filed a Sur-Reply. (There was no request to file a Sur-Reply; it is not permitted by the Rules. The Court will consider the Sur-Reply.)

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

Plaintiff’s New Motion is nearly identical to its Original Motion. Both motions request the same amount of attorney's fees and the same amount of costs. The only difference between the two filings is that Plaintiff cites in its New Motion to a different section of the Parties’ signed lease agreement. Specifically, Plaintiff now cites to section 13.1(d) of the lease agreement, which regards collections costs, instead of citing section 13.1(a) of the lease agreement, which regards reletting costs. Plaintiff does not cite to any new facts nor otherwise explain why it took the Original Motion off calendar and nearly immediately refiled the New Motion for a later date. Notably, the Court’s prior tentative ruling was adverse to Plaintiff; it denied the motion for an award of attorney's fees (although it did grant the motion for costs).

The purpose of issuing a tentative ruling affords both sides the opportunity to reevaluate their respective positions in light of the preliminary views the judge has expressed, and to either submit to the tentative ruling, negating the need for oral argument, or to focus their arguments at the subsequent hearing. (Brown, Winfield & Canzoneri Inc. v. Superior Court (2010) 47 Cal.4th 1233, 1246. A tentative ruling allows a party to attempt to convince the judge that the tentative ruling should not become the judge’s final order. (Cowan v. Krayzman (2011) 196 Cal.App.4th 907, 916.)

If a moving party is allowed to withdraw a motion or file an amended motion after receiving an adverse tentative ruling, the moving party could simply continue to withdraw the motion indefinitely based on adverse tentative rulings, only to repeatedly refile the motion in an attempt to “get it right” based on the judge's reasoning in the tentative ruling. (Id at p. 917.)

This procedure of filing new motions after receiving an adverse tentative ruling can lead to excessive litigation and a waste of judicial resources. (Id.) In Cowan, the moving party “used the window of opportunity presented by the tentative decision procedure . . . not to contest the tentative ruling, but to ‘buy time’” to withdraw the motion, revise it, and refile it before the judge's tentative ruling became final: “this conduct smacks of gamesmanship, undercuts the tentative ruling system, and wastes the resources of the court and opposing parties.” (Id. at p. at 918.)

As was done in Cowan, Plaintiff withdrew its Original Motion after the Court posted its adverse tentative decision, then submitted a revised motion that it hoped the Court would grant.

The Court could simply dismiss this motion. Instead, it will adopt (with minor modifications) its tentative ruling from the previous motion for attorney's fees that was scheduled to be heard on November 10, 2022. That modified ruling is repeated below.

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

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;

(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.) This section does not allow Plaintiff to recover attorney's fees is this instance; Plaintiff prevailed on recovering unpaid rent, it did not sue to recover possession.

Although the cited 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 otherwise disputed these costs. (The Court notes that Defendant’s Opposition to the current motion does not contain any argument opposing costs.) The Court will award costs in the amount of $1,764.00.

III. Conclusion