Superior Court of California 

County of Los Angeles 

Department 78 

¿ 

 

I. BACKGROUND 

Plaintiff Hype Factor, LLC (“Plaintiff”) filed this breach of contract action against defendants John Fitzpatrick (“Fitzpatrick”), JFF Entertainment, LLC (“JFF”), and Does 1 through 25 alleging that Plaintiff is an entertainment company that contracted with JFF, principled by Fitzpatrick, in which JFF was to ensure that social media talent Catherine Paiz (“Paiz”) performed her tasks under the contract. (Compl. ¶ 25.) Fitzpatrick/JFF held themselves out to be Paiz’s talent manager. (Id. ¶ 21.) Paiz failed to perform under the contract because Fitzpatrick and JFF failed to inform Paiz about the agreement and because JFF/Fizpatrick were not Paiz’s talent manager. (Id. ¶ 54.) 

On April 2, 2024, Plaintiff filed a notice of settlement. 

On April 4, 2024, the previous court ordered the notice of settlement to be blocked from public view. 

On May 10, 2024, Plaintiff’s motion to enforce settlement was granted. 

On June 27, 2024, defendants Fitzpatrick and JFF (collectively “Defendants”) filed a notice of appeal from the enforcement settlement. 

On May 30, 2024, Plaintiff filed the instant motion seeking attorney fees and costs pursuant to the Settlement Agreement. 

On August 12, 2024, Defendants filed an untimely opposition to the motion. 

On August 13, 2024, Plaintiff filed a reply. 

 

II. DISCUSSION 

Defendants’ request a stay on this action pending appeal of the enforce settlement, whereas Plaintiff requests the motion be continued to a date after the September 13, 2024 Status Conference. 

Defendants argue the motion for attorney fees and costs is premature, and that the matter should be stayed pending Defendants’ appeal of the enforce settlement. Defendants’ request to stay the matter is denied. 

This case matter was reassigned, effective July 5, 2024. The previous court granted Plaintiff’s motion to enforce the parties’ settlement agreement signed on April 1, 2024, wherein the court found that Defendants were not excused from performing under the settlement agreement. (Min. Order, May 10, 2024.) Defendants subsequently filed a notice of appeal. In determining whether a proceeding is embraced in or affected by the appeal, the court considers the appeal and its possible outcomes in relation to the proceeding and its possible results. (Varian Medical Systems, Inc. v. Delfino¿(2005) 35 Cal. 4th 180, 189.) Whether a matter is embraced in or affected by a judgment or order within the meaning of section 916 depends on whether the post-judgment or post-order proceedings on the matter would have any effect on the effectiveness of the appeal. (Ibid.) If it affects the effectiveness of the appeal, the proceeding is stayed; if not, the proceeding is permitted. (Ibid.)  

Here, the contractual provision for attorney fees and costs do not fall under any exceptions under Code Civ. Proc., section 917.1 in which it “shall” be stayed. Additionally, the motion for attorney fees and costs as a result of the settlement agreement does not affect the “effectiveness” of Defendants’ appeal, even if the matter is related. (See Bankes v. Lucas (1992) 9 Cal. App. 4th 365, 369 [“In any event, an award of attorney fees as costs is a collateral matter which is embraced in the action but is not affected by the order from which an appeal is taken.”].) Therefore, there is no basis to stay this matter pending Defendants’ appeal enforcing settlement. 

Further, Defendants filed their opposition six court days before the hearing, which provides Plaintiff only one day to review the opposition before filing a timely reply. Plaintiff’s request for a continuance is well-taken. Although the Court will not stay the action, the Court finds good cause to continue the matter pending resolution of the appeal. 

 

III. CONCLUSION 

The Hearing on Motion for Attorney Fees is CONTINUED to ____________ in Dept. 78 of Stanley Mosk Courthouse. 

The Court sets a Status Conference Re: Appeal for ______________. Appellants are ordered to file a declaration regarding the status of the appeal at least five (5) court days before the Status Conference Re: Appeal.   

 

Moving party is ordered to give notice. 

 

DATED: August 19, 2024 

__________________________ 

Hon. Michelle C. Kim 

Judge of the Superior Court 

 

PLEASE TAKE NOTICE: 

• Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement. 

• If a party intends to submit on this tentative ruling, the party must send an email to the court at SMCDEPT78@lacourt.org with the Subject line “SUBMIT” followed by the case number. The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting. 

• Unless all parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument. You should assume that others may appear at the hearing to argue. 

• If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court. After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave.