Judge: Shirley K. Watkins, Case: 22VECV00081, Date: 2022-10-18 Tentative Ruling

If ALL parties submit on the tentative, then no appearance is necessary unless some other matter (i.e., Case Management Conference) is on calendar. It is not necessary to call the court to request oral argument. Oral argument is permitted on all tentative rulings.

Case Number: 22VECV00081    Hearing Date: October 18, 2022    Dept: T

            [TENTATIVE] ORDER:  Defendants Lets Restyle Ca, Inc., and IBeauty Brands, Inc.’s Motion to Compel Arbitration is GRANTED in Part and DENIED in Part.  The request to arbitrate the action is GRANTED.  The case is stayed pending arbitration.

            Case Management Conference is set for 10/17/2023 at 8:30 a.m.  Appearance by both sides is REQUIRED unless judgment has been entered or the case dismissed.

            Defendants Lets Restyle Ca, Inc., and IBeauty Brands, Inc.’s request for interim attorneys’ fees is DENIED WITHOUT PREJUDICE.

Introduction

Defendants Lets Restyle Ca, Inc., and IBeauty Brands, Inc.’s (collectively Defendants) moved to compel arbitration and requested $10,157.50 in attorneys’ fees.  Plaintiff Rif V – Odessa, LLC does not oppose and submits to the request to arbitrate the action but opposes the request for attorneys’ fees.  The Reply is untimely as it was due to be filed 10/11/2022 and was not filed until 10/12/2022.

            Discussion 

            Because there is no dispute as to the request to arbitrate the action, Defendants’ request to arbitrate the action is GRANTED.  The action is stayed. 

            Defendants’ request for attorneys’ fees fails to present a statute authorizing attorneys’ fees and fails to cite to the contract term authorizing attorneys’ fees.  The arbitration provision cited in the motion does not include an attorneys’ fees provision.  (See Motion, pg. 3:26-4:5.)  Although the contract at issue is a commercial lease and presumably contains an attorneys’ fees provision, Defendants do not provide any citation to it.  It is not upon the Court to search through a 35-page lease or the four-page amendment to the lease, both attached to the Complaint and not the motion, to locate an attorneys’ fees provision.  A judge in a civil case is not “'obligated to seek out theories [a party] might have advanced, or to articulate for him that which … [a party] has left unspoken.'”  (Mesecher v. County of San Diego (1992) 9 Cal.App.4th 1677, 1686.)  For this defect, there is grounds to deny the request for attorneys’ fees.

            Even if the Court were to consider the merits of the request on the assumption that an attorneys’ fees provision is included in the lease, the Court notes that a split of authority exists whether the prevailing party on a motion to compel has a right to a fees award when the underlying litigation on the merits is not yet final.  The Courts have awarded fees on the motion based upon an arbitration clause providing for fees incurred because of initiation of any proceeding other than arbitration.  (Acosta v. Kerrigan (2007) 150 Cal.App.4th 1124, 1131-1132 (Acosta); Benjamin, Weill & Mazer v. Kors (2011) 195 Cal.App.4th 40, 73-80 [extending Acosta rationale to general contractual attorney fees provision.])  As noted above, the instant arbitration provision does not include a fees provision which makes the Acosta case factually distinguishable to the instant arbitration provision. 

Other Courts have denied interim fees on the grounds that “there may only be one prevailing party entitled to attorney fees on a given contract in a given lawsuit.”  (Frog Creek Partners, LLC v. Vance Brown, Inc. (2012) 206 Cal.App.4th 515, 520 (Frog Creek.)  See also Roberts v. Packard, Packard & Johnson (2013) 217 Cal.App.4th 822, 833-834 and Lachkar v. Lachkar (1986) 182 Cal.App.3d 641, 647-649 (Lachkar.))  The view of Civil Code section 1717, as expressed in Frog Creek and Lachkar, was cited approvingly by the California Supreme Court.  (DisputeSuite.com, LLC v. Scoreinc.com  (2017) 2 Cal.5th 968, 976-977.)  This Court follows the Frog Creek and Lachkar views on the issue of interim fee awards on a motion to compel arbitration and finds that Defendants’ request is improper at this stage of the action.

            Defendants’ request for fees is DENIED WITHOUT PREJUDICE.  

            IT IS SO ORDERED, CLERK TO GIVE NOTICE.