Judge: Michael Shultz, Case: TC028673, Date: 2023-03-16 Tentative Ruling
Case Number: TC028673 Hearing Date: March 16, 2023 Dept: A
TC028673 Olegario Hernandez v. Ezequiel
Rodriguez Guzman
[TENTATIVE] ORDER
I.
BACKGROUND
This action arises from
Plaintiff’s purchase of real property from Defendant that did not comply with the
City of Compton’s code requirements for conversion of a single-family dwelling
into a duplex. Plaintiff filed a conditional notice of settlement on December
13, 2017. On October 10, 2019, the Hon. Gary Y. Tanaka granted Plaintiff’s
unopposed motion to enforce settlement. The settlement was conditioned on
Defendant’s obligation to modify the property and obtain the required permits
within an allotted time period. Judge Tanaka set an order to show cause regarding
enforcement of the agreement for December 19, 2019. (See Min. Ord. of 10/10/19).
The OSC was continued to January
31, 2020, when the parties stipulated that Defendant would obtain the required
permits and pay costs associated with compliance. Plaintiff was responsible to
pay all costs associated with the safety violations for the entire property. (Min. Ord. 1/31/20).
On
August 6, 2020, Judge Tanaka granted Plaintiff’s motion for attorney’s fees of
$5,475.00 and costs of $169.60. The Court dismissed the case without prejudice
but retained jurisdiction to enforce any and all terms of settlement. (Min. Ord. 8/6/20).
Because
Defendant did not comply with the parties’ agreement for over two years,
Plaintiff made a second motion to enforce settlement for $85,000. On January
30, 2023, the Hon. Michael Shultz granted the motion and entered judgment
pursuant to the terms of the agreement, not for $85,000, which Plaintiff
requested, and which was not contemplated in the settlement agreement. (Min. Ord. 1/30/23).
II.
ARGUMENTS
Plaintiff argues he is entitled to recover attorney’s fees based
on the terms of the parties’ settlement agreement. Plaintiff was required to
file the second motion to enforce settlement because of Defendant’s failure to
comply with the agreement’s terms.
In opposition, Defendant argues that
Plaintiff is not the prevailing party, because the Court denied Plaintiff’s
request to enter judgment for $85,000 including for costs and attorney’s fees.
Therefore, Defendant obtained the greater relief. Defendant complied with the
agreement. Plaintiff’s motion is an untimely motion for reconsideration.
In reply, Plaintiff argues he
prevailed on the contract by obtaining judgment and is entitled to fees as the
party obtaining the greater relief. There is no evidence that Defendant
provided proof of compliance as required by the agreement.
III.
LEGAL STANDARDS
A prevailing party in an action on
contract is entitled to attorney’s fees and costs incurred to enforce the
contract if the contract expressly provides for it. (Civ. Code, § 1717 subd. (a)). The prevailing party on the contract “shall be the
party who recovered a greater relief in the action on the contract. The court
may also determine that there is no prevailing party. Id., subd. (b)(1).
An “action on a contract” is liberally construed “to extend to any action ‘[a]s
long as an action ‘involves’ a contract and one of the parties would be
entitled to recover attorney fees under the contract if that party prevails in
its lawsuit....’" (In re Tobacco Cases (2011) 193 Cal.App.4th
1591, 1601).
The Court’s
analysis begins with the lodestar, which is the number of hours reasonably spent
multiplied by a reasonably hourly rate. (PLCM Group v. Drexler (2000)
22 Cal.4th 1084, 1095). The lodestar figure can be
adjusted based on the factors specific to the case. (Id.). Plaintiff
need not produce detailed time records; the motion can be based on counsel’s
declarations. (Raining Data Corp. v. Barrenechea (2009) 175 Cal.App.4th 1363, 1375).
IV.
DISCUSSION
Contrary to
Defendant’s contention, the Court did not address Plaintiff’s recovery of
attorney’s fees in its order of January 30, 2023. The Court entered judgment
pursuant to the settlement agreement, which dictates whether Plaintiff is
entitled to recover fees. Plaintiff does not request reconsideration of that order;
therefore, Civil Procedure section 1008 does not apply.
The parties’
settlement agreement provides that the prevailing party in litigation “arising
out of or based upon this agreement” shall recover reasonable attorney’s fees
and Court costs. (Decl. of Steve Lopez, Ex. 1-4, ¶ 13). As Plaintiff recovered the greater relief, Plaintiff is
entitled to attorney’s fees.
At the time of
the hearing on Plaintiff’s motion to enforce settlement, Defendant did not
provide evidence that he complied with the permit requirements as set forth in
the settlement agreement. Defense counsel now submits 23 pages of documents
that include permit applications with handwritten notations purporting to
identify the unit to which the application pertained. (Declaration of Omar Anorga, Ex. C). The documents lack foundation and constitute hearsay.
Plaintiff’s objections thereto are sustained. Nor do the documents clearly establish
Defendant complied with the requirement to obtain permits as described in the
settlement agreement. The legible documents pre-date the 2017 settlement
agreement, i.e., between 1948 through 1986. (Anorga
Decl., .pdf p. 26-27, p. 34; p. 36; p. 37; p. 40, p. 42).
Plaintiff’s
counsel avers that a block of 16.6 hours was spent engaging in a number of different
tasks, however, the hours are not broken down on a task-by-task basis to enable
the Court to determine if the time was reasonably spent. If counsel cannot
further define the billing entries, the trial court has discretion to “assign a
reasonable percentage to the entries or simply cast them aside.” (Bell v. Vista Unified School Dist. (2000) 82 Cal.App.4th 672, 689). The Court determines a reasonable expenditure of time for the
tasks shown below:
Plaintiff is
entitled to recover costs as permitted by statute. (Code Civ. Proc., § 1033.5). Plaintiff
requests $195.10 in costs without providing an itemization. Based on the Plaintiff’s
reservation information attached to each motion, the Court permits filing fees
of $61.65 for each motion for a total cost award of $123.30.