Judge: Michelle Williams Court, Case: BC656279, Date: 2023-02-14 Tentative Ruling

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Case Number: BC656279    Hearing Date: February 14, 2023    Dept: 1

BC656279       ROSA COJULUN VS LIRIA MELENDEZ ET AL

Plaintiff’s Motion for Attorney’s Fees and Costs against Defendant Javier Perez

TENTATIVE RULING:      Plaintiff’s Motion for Attorney’s Fees and Costs against Defendant Javier Perez is DENIED in its entirety.

Background

On April 3, 2017, Plaintiff Rosa Cojulun filed this action against Defendants Liria Melendez, Luisa Melendez, Javier Perez, Victor Valle, and Best Alliance Foreclosure and Lien Services Corp. The operative Third Amended Complaint asserted causes of action for: (1) breach of contract, (2) accounting, (3) wrongful foreclosure, and (4) declaratory relief. The TAC alleged Plaintiff was the equitable owner of real property located at 13147 Gladstone Avenue, Sylmar, CA 91342 and transferred the property into Defendant Liria Melendez’s name solely to refinance the mortgage on the property and enter into a joint venture agreement with potential investors in Plaintiff’s planned subdivision. The complaint alleges the Liria Melendez entered into a joint venture agreement with Defendants Valle and Perez, for Plaintiff’s benefit. However, Defendants Valle and Perez allegedly breached the agreement by failing to provide funds to subdivide and develop the property. Defendant Perez also allegedly utilized a deed of trust to wrongfully foreclose on the property through Best Alliance Foreclosure and Lien Services Corp.

On February 7, 2018, Defendant Liria Melendez filed a Cross-Complaint against Javier Perez, Victor Valle, and Best Alliance Foreclosures and Lien Services Corp., asserting causes of action for: (1) breach of contract, (2) breach of covenant of good faith and fair dealing, (3) fraud and deceit, (4) accounting, (5) wrongful foreclosure, (6) quiet title, and (7) declaratory relief.  On June 21, 2018, the Court sustained cross-complainant Perez’s demurrer to the seventh cause of action without leave to amend.

On November 15, 2018, the Court sustained Defendant Perez’s demurrer to the third and fourth causes of action in the Third Amended Complaint without leave to amend.

Plaintiff Rosa Cojulun, Liria Melendez, and Javier Perez proceeded to trial on their claims. The jury tried causes of action for breach of contract, fraud, and wrongful foreclosure whereas the court tried the causes of action for accounting, quiet title, and declaratory relief. On August 25, 2022, the Court entered judgment finding the joint venture agreement of the parties as a whole, was entered on behalf of and for the benefit of the Plaintiff Rosa Cojulun, Cojulun was entitled to an accounting of all funds advanced or expended by Defendant Perez, as well as awarded Liria Melendez title to the property, $400,000.00 in general damages, and $1,000,000.00 in punitive damages. The judgment indicates the jury found Cojulun’s contract causes of action were barred by the statute of limitations.

Motion

On October 25, 2022, Plaintiff Rosa Cojulun filed the instant motion for attorneys’ fees and costs seeking $706,315.50 in lodestar attorneys’ fees, $1,170.00 in costs, and a 2.0 multiplier to the lodestar fee.

Opposition

In opposition, Perez contends Plaintiff is not the prevailing party and is therefore not entitled to any attorneys’ fees or costs, the hourly rates and hours claimed are excessive and unreasonable, and the claimed costs are barred by Plaintiff’s failure to timely file a memorandum of costs.

Reply

The Court did not receive a timely reply. (Code Civ. Proc. § 1005(b).)

Judicial Notice

Perez requests the Court take judicial notice of documents filed in this action as well as other actions in the Los Angeles Superior Court. “[A] request for judicial notice allows parties to introduce records of any court of the State of California. (Evid.Code, § 452, subd. (d).) There is no requirement that those records be sworn or certified before a court can take judicial notice of the documents.” (Thayer v. Kabateck Brown Kellner LLP (2012) 207 Cal.App.4th 141, 155–156.) The request for judicial notice of Exhibit Nos. 1-19 is GRANTED. (Evid. Code § 452(d).)

Perez also requests the Court take judicial notice of records from the California State Bar regarding the attorneys on this case. The Court properly takes judicial notice of attorney information from the State Bar’s website and its records. (In re White (2004) 121 Cal.App.4th 1453, 1469 n.14; In re Sodersten (2007) 146 Cal.App.4th 1163, 1171 n.1.) The request for judicial notice of Exhibit Nos. 20-29 is GRANTED.

Motion for Attorneys’ Fees

Standard

Pursuant to Code of Civil Procedure section 1033.5(a)(10), a prevailing party may recover attorneys’ fees when authorized by contract, statute, or law. Civil Code section 1717(a) 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.”

“The reasonableness of attorney fees is within the discretion of the trial court, to be determined from a consideration of such factors as the nature of the litigation, the complexity of the issues, the experience and expertise of counsel and the amount of time involved.  The court may also consider whether the amount requested is based upon unnecessary or duplicative work.” (Wilkerson v. Sullivan (2002) 99 Cal.App.4th 443, 448.) “The basis for the trial court's calculation must be the actual hours counsel has devoted to the case, less those that result from inefficient or duplicative use of time.” (Horsford v. Board Of Trustees Of California State University (2005) 132 Cal.App.4th 359, 395.)  “The law is clear, however, that an award of attorney fees may be based on counsel's declarations, without production of detailed time records.” (Raining Data Corp. v. Barrenechea (2009) 175 Cal.App.4th 1363, 1375.)

Plaintiff Cojulun is Not Entitled to Attorneys’ Fees

Plaintiff Cojulun’s Notice of Motion indicates she seeks attorneys’ fees “pursuant to California Civil Code section 1717, Section 8 of the Joint Venture Agreement (hereafter, ‘the Agreement’) dated July 2005 and paragraph 8 of the Promissory Note securing the Deed of Trust and California Rules o Court (‘CRC’) Rule 3.1702.” (Not. at 2:2-6.)

Section 8 of the Agreement for Joint Development of Real Estate between Lidia Melendez, Javier Perez, and Victor Valle provides: “[i]n the event of any controversy or claim respecting this agreement or in connection with the PROPERTY or the PROJECT, the prevailing party shall be entitled to reasonable attorneys’ fees in addition to any other damages or relief obtained . . .” (Anyia Decl. Ex. A.)

The Promissory Note Secured by Deed of Trust between Liria Melendez and Javier Perez provides, in relevant part, “Borrower agrees to pay all reasonable attorneys’ fees, costs of collection, costs, and expenses incurred by Holder in connection with the enforcement or collection of this Note. Borrower further agrees to pay all costs of suit and the sum adjudged as attorneys’ fees in any action to enforce payment of this Note or any part of it.” (Anyia Decl. Ex. B.)

Plaintiff is not an express party to either of these agreements, but states “it is very clear from the judgment entered in this case that Plaintiff was the interested beneficiary of the agreement of the parties, who initiated and prosecuted the case to judgment.” (Mot. at 9:3-6.) Plaintiff asserts she is the prevailing party without analysis, citing Civil Code section 1717.

“[S]ection 1717 applies to contracts containing reciprocal as well as unilateral attorney fee provisions, including provisions, like the one at issue here, authorizing recovery of attorney fees by a ‘prevailing party.’ Thus, section 1717 applies to the contractual attorney fee provision at issue here.” (Santisas v. Goodin (1998) 17 Cal.4th 599, 614.) By its terms, Section 1717 applies “[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.” (Civ. Code § 1717(a).)

Under Section 1717, “the party prevailing 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 party prevailing on the contract for purposes of this section.” (Civ. Code § 1717(b)(1).) Here, the Court agrees with Defendant that Plaintiff Cojulun is not the prevailing party and the Court finds, as between Cojulun and Perez, there is no prevailing party on the contracts for purposes of Section 1717.

Plaintiff Cojulun’s initial and First Amended Complaint filed in this action asserted claims for: (1) breach of contract; (2) breach of the covenant of good faith and fair dealing; (3) fraud; (4) accounting; (5) quiet title; and (6) declaratory relief against Defendant Perez. The First Amended Complaint added a cause of action for wrongful foreclosure against Perez. The Court sustained Defendant Perez’s demurrer to every cause of action asserted in the FAC on August 28, 2017. (RJN Ex. 4.)

Plaintiff Cojulun’s Second Amended Complaint asserted causes of action for: (1) fraud and deceit, (2) accounting, (3) wrongful foreclosure; (4) quiet title; and (5) declaratory relief. On March 23, 2018, the Court sustained Defendant Perez’s demurrer without leave to amend as to the first cause of action for fraud; third cause of action for wrongful foreclosure, and fourth causes of action for quiet title. (RJN Ex. 6.) Accordingly, Defendant, not Plaintiff, prevailed on the first cause of action for fraud, third cause of action for wrongful foreclosure, and fourth causes of action for quiet title.

Plaintiff’s Cojulun’s Third Amended Complaint asserted causes of action for: (1) breach of contract; (2) accounting; (3) wrongful foreclosure; and (4) declaratory relief. On November 15, 2018, the Court sustained Defendant Perez’s demurrer to the third and fourth causes of action without leave to amend. (RJN Ex. 8.) Accordingly, Defendant, not Plaintiff, prevailed on the third cause of action for wrongful foreclosure and fourth causes of action for declaratory relief.

At trial, the jury found Plaintiff Cojulun’s breach of contract cause of action barred by the statute of limitations and the Court entered judgment in conformity with that finding. (RJN Ex. 12.) Accordingly, Defendant, not Plaintiff, prevailed on the first cause of action for breach of contract.

“[I]n deciding whether there is a ‘party prevailing on the contract,’ the trial court is to compare the relief awarded on the contract claim or claims with the parties’ demands on those same claims and their litigation objectives as disclosed by the pleadings, trial briefs, opening statements, and similar sources. The prevailing party determination is to be made only upon final resolution of the contract claims and only by ‘a comparison of the extent to which each party ha[s] succeeded and failed to succeed in its contentions.’” (Hsu v. Abbara (1995) 9 Cal.4th 863, 876; Waterwood Enterprises, LLC v. City of Long Beach (2020) 58 Cal.App.5th 955, 972 (same).)

As argued by Defendant, Plaintiff Cojulun asserted seven causes of action against Defendant Perez through the course of this action, which sought compensatory damages exceeding $500,000.00, punitive damages, cancellation of instruments, title to real property, and an accounting. Of the seven causes of action, only the fraud claim is not considered “on the contract” for purposes of Civil Code section 1717. (Opp. at 6:10-21; Kachlon v. Markowitz (2008) 168 Cal.App.4th 316, 347 (“In determining whether an action is ‘on the contract’ under section 1717, the proper focus is not on the nature of the remedy, but on the basis of the cause of action. [Citation.] Here, although the remedy sought in the relevant causes of action was equitable, the claims were still actions ‘on the contract,’ i.e., the note and deed of trust.”).) Out of the six claims on the contracts, Plaintiff Cojulun prevailed only on the second cause of action for an accounting and obtained a judgment solely for non-monetary relief. (RJN Ex. 12.)

Neither Plaintiff nor Defendant obtained an “unqualified win” on the contract claims. (Hsu, supra, 9 Cal.4th at 876.) The Court finds, as between Cojulun and Perez, there is no prevailing party on the contracts. Accordingly, Plaintiff Cojulun’s request for attorneys’ fees is DENIED in its entirety.

Costs Are Not Properly Awarded

Plaintiff also seeks $1,170.00 in costs consisting of “$435.00 filing fees, submitted costs expenses for filing fees-summons and complaint/motions ($615.00), service of summons and complaint ($165.00), subpoena to City of Los Angeles ($290.00) and service of subpoena ($100.00).” (Anyia Decl. ¶ 14.) Plaintiff’s motion summarily requests costs without citation to authority. (Mot. at 14:17-25.)

As argued by Defendant Perez, Plaintiff did not file a memorandum of costs. (Opp. at 16:10-17.) Plaintiff was required to file a memorandum of costs within 15 days after service of notice of entry of judgment. (Cal. R. Ct., rule 3.1700(a)(1).) Plaintiff’s failure to do so precludes recovery of costs available pursuant to Code of Civil Procedure section 1033.5(a). (See Kaufman v. Diskeeper Corp. (2014) 229 Cal.App.4th 1, 6 n.2 (“We agree with the trial court that Diskeeper was required to file a memorandum of costs in order to recover the other costs and expenses it sought, and that Diskeeper's failure to do so worked a forfeiture regarding them.”); Anthony v. City of Los Angeles (2008) 166 Cal.App.4th 1011, 1015 (“rule 3.1700 applies only to the items ‘allowable as costs’ that are listed in subdivision (a) of section 1033.5—that is, those cost items to which a party is entitled ‘as a matter of right.’”).)

The requested costs include filing fees, fees for service of the summons and complaint, and fees for service of subpoenas, (Anyia Decl. ¶ 14), which are all costs that fall within Code of Civil Procedure section 1033.5(a). Accordingly, Plaintiff is barred from recovering these costs by failing to timely file a cost memorandum. Moreover, Plaintiff solely obtained non-monetary relief in the form of an accounting. Pursuant to Code of Civil Procedure section 1032(a)(4), “[i]f 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.” For the reasons described herein, the Court would not allow Plaintiff’s request for costs, even if timely made.

Plaintiff’s request for costs is DENIED.