Judge: Robert B. Broadbelt, Case: 22STCV02699, Date: 2024-01-18 Tentative Ruling

Case Number: 22STCV02699    Hearing Date: January 18, 2024    Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

MOVING PARTIES:             Defendants Allied Subcontractors Corp. and Michael Chacon

RESPONDING PARTY:       Plaintiff Paula Radin d/b/a JP Investments

Motion for Attorney’s Fees

The court considered the moving and opposition papers filed in connection with this motion.  No reply papers were filed.

DISCUSSION

Plaintiff Paula Radin, d/b/a JP Investments (“Plaintiff”) filed this action against Allied Subcontractors Corp. and Michael Chacon (“Defendants”) on January 24, 2022, alleging two causes of action for (1) breach of contract, and (2) fraud.

On March 27, 2023, Plaintiff filed a Request for Dismissal of the Complaint.  Dismissal was not entered on that date due to a defect with the form used.  On March 28, 2023, Plaintiff filed a second Request for Dismissal of the Complaint.  Dismissal was not entered on that date because Plaintiff’s counsel did not sign the form.  Thereafter, on June 12, 2023, Plaintiff filed a third Request for Dismissal of the Complaint, with prejudice.  Pursuant to that request, the clerk dismissed Plaintiff’s action with prejudice on June 13, 2023.

Defendants now move the court for an order awarding them attorney’s fees in the amount of $10,716.20 pursuant to Civil Code section 1717 and Code of Civil Procedure section 1032.[1]

“[A] prevailing party is entitled as a matter of right to recover costs in any action or proceeding.”  (Code Civ. Proc., § 1032, subd. b).)  Further, “[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.”  (Civ. Code, § 1717, subd. (a).)

First, the court denies Defendants’ request for an award of attorney’s fees and costs pursuant to Civil Code section 1717.

“Where an action has been voluntarily dismissed or dismissed pursuant to a settlement of the case, there shall be no prevailing party for purposes of” Civil Code section 1717.  (Civ. Code, § 1717, subd. (b)(2).)  “This rule applies regardless of whether the action is dismissed with or without prejudice, so long as the plaintiff voluntarily brought about the dismissal pursuant to section 581.”  (Mesa Shopping Center-East, LLC v. O Hill (2014) 232 Cal.App.4th 890, 903.)  As set forth above, Plaintiff voluntarily dismissed this action on June 13, 2023.  Thus, Defendants cannot be construed to be a prevailing party in an action on a contract (specifically, as to Plaintiff’s first cause of action for breach of contract) within the meaning of Civil Code section 1717.  (Civ. Code, § 1717, subd. (b)(2).)  The court has no discretion to award attorney’s fees to Defendants pursuant to this statute.  (Ibid.; Shapira v. Lifetech Resources, LLC (2018) 22 Cal.App.5th 429, 441 [“A trial court lacks discretion to award fees under section 1717(b)(2) where a case has been voluntarily dismissed”].)

Second, the court denies Defendants’ request for an award of attorney’s fees pursuant to Code of Civil Procedure section 1032.

“‘If an action asserts both contract and tort or other noncontract claims, [Civil Code] section 1717 applies only to attorney fees incurred to litigate the contract claims.’  [Citation.]  As with tort claims, the question of whether to award fees on other noncontract claims depends upon the scope of the contractual attorneys’ fee provision.”  (Exxess Electronixx v. Heger Realty Corp. (1998) 64 Cal.App.4th 698, 713 [emphasis in original] [internal citation omitted].)  Code of Civil Procedure section 1032 “works in tandem with [Civil Code section 1717], by providing for fees for other noncontract claims if the agreement is broadly phrased enough to cover those claims.”  (Khan v. Shim (2016) 7 Cal.App.5th 49, 59.)

As set forth above, the court has determined that Defendants cannot recover attorney’s fees under Civil Code section 1717 for the work performed in litigating against Plaintiff’s first cause of action for breach of contract.  Thus, the court evaluates whether the attorney’s fee provision in the parties’ contract is broad enough to support an award of attorney’s fees incurred in litigating against the second cause of action for fraud.  (Khan, supra, 7 Cal.App.5th at p. 59.)

The court finds that the attorney’s fees provision in the contract is not so broad that it covers tort claims.  The provision states that, upon demand, the borrower (defendant Allied Subcontractors Corp.) shall pay to the holder (Plaintiff) “the full amount of all costs and expenses incurred by [Plaintiff] in connection with the enforcement of [Plaintiff’s] rights and the collection of any amounts which become due to [Plaintiff] under this Note.”  (Compl., Ex. A, p. 3, ¶ 10.)  The court finds that this language is too narrow to encompass tort claims and therefore finds that Defendants cannot recover attorney’s fees incurred in connection with litigating against Plaintiff’s cause of action for fraud.  (Khan, supra, 7 Cal.App.5th at p. 60 [narrower contracts typically do not use broad phrases such as “arising from” and instead refer to the award of fees to enforce the subject agreement]; Gil v. Mansano (2004) 121 Cal.App.4th 639, 743 [“Where a contract authorizes an award of attorney fees in an action to enforce any provision of the contract, tort claims are not covered”].)

Thus, the court finds that Defendants have not shown that they may recover attorney’s fees from Plaintiff pursuant to Civil Code section 1717 or Code of Civil Procedure section 1032 and therefore denies Defendants’ motion.

ORDER

            The court denies defendants Allied Subcontractors Corp. and Michael Chacon’s motion for attorney’s fees.

            The court orders plaintiff Paula Radin, d/b/a JP Investments to give notice of this ruling.

IT IS SO ORDERED.

DATED:  January 18, 2024

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court