Judge: Teresa A. Beaudet, Case: 19STUD00909, Date: 2024-05-17 Tentative Ruling

Case Number: 19STUD00909    Hearing Date: May 17, 2024    Dept: 50

Superior Court of California

County of Los Angeles

Department 50

Background

On January 25, 2019, Plaintiff De Witte Mortgage Investors Fund, LLC (“Plaintiff”) filed the instant unlawful detainer action against Defendants 1565 Haslam, LLC, Lee Wong (“Wong”), Alex Cardenas aka Alejandro Cardenas, Ruben Trejo, and LW Asset Management, LLC.

This action concerns possession of the property located at 2115 Kress Street, Los Angeles, California 90046 (the “Property”). (Compl., ¶ 2.) Plaintiff alleges that it purchased the Property at a foreclosure sale, and that defendants continued to occupy the Property after service of a 90-day notice to quit and deliver up possession. (Compl., ¶¶ 2-5.)

On April 4, 2019, Sandra Ann Will Carradine (“Carradine”) filed a Claim of Right to Possession in this action. Carradine claimed a right to possession of the Property as the occupant of the Property on the date the Complaint was filed. Carradine’s Claim of Right to Possession was granted on April 23, 2019, and the Complaint was deemed amended to include Carradine as a defendant.

On September 13, 2021, the Court issued an Order granting Carradine’s motion for summary judgment. On September 28, 2021, Judgment was entered by the Court for Carradine and against Plaintiff.

On November 29, 2021, Plaintiff filed a notice of appeal from the September 28, 2021 Judgment after an order granting a summary judgment motion.

On May 24, 2023, the Court of Appeal, Second Appellate District issued an opinion in Case No. B317957. The opinion provides, inter alia, that “Carradine moved for summary judgment, arguing that the notice to vacate De Witte had served in advance of the unlawful detainer action did not comply with just cause-related eviction requirements imposed by the Los Angeles Municipal Code (LAMC) that restrict the grounds on which landlords can recover possession of rental units. Carradine’s summary judgment motion addressed only alleged deficiencies in the notice to vacate (namely, the failure to specify an authorized ground for eviction under the LAMC), and did not argue that her lease fit within the terms of section 1161b(b). De Witte’s response likewise did not mention or reference section 1161b(b). The trial court found the notice to vacate non-compliant with the LAMC, granted the motion, and entered judgment in Carradine’s favor.” (May 24, 2023 Opinion at pp. 2-3.)

The Court of Appeal’s May 24, 2023 opinion further provides that “De Witte now challenges the summary judgment ruling on the ground that Carradine failed to present evidence showing she was entitled to protection under section 1161b(b). Specifically, De Witte contends that Carradine failed to present evidence to show her lease did not fall into the ‘arms’ length’ and ‘fair market rent’ exclusions set forth in section 1161b(b)(3) and (4). De Witte’s challenge fails because Carradine did not rely on section 1161b(b) when moving for summary judgment, and Carradine was not otherwise required to present evidence to show that 1161b(b) applied. Accordingly, we affirm.” (May 24, 2023 Opinion at p. 3.) On September 14, 2023, a Remittitur was filed in this action, providing, inter alia, that “the attached is a true and correct copy of the original order, opinion or decision entered in the above-entitled cause on May 24, 2023 and that this order, opinion or decision has now become final. Carradine is awarded her costs on appeal.”

             Carradine’s instant “motion for attorney fees incurred on appeal” seeks an order awarding her attorneys’ fees in the amount of $85,250.00 The motion is unopposed.

Discussion

A.    Entitlement to Attorney’s Fees 

In the instant motion, Carradine asserts that “[t]he lease agreement between the parties entitles the prevailing party to recover reasonable attorney fees.” (Mot. at p. 4:25-26.) ¿The Court notes that Civil Code section 1717¿, subdivision (a) provides: “¿In 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.¿” In addition, ¿Code of Civil Procedure section 1033.5, subdivision (a)(10)(A)¿ provides that attorney’s fees, when authorized by contract, are allowable as costs.

In her declaration in support of the instant motion, Carradine states, inter alia, that “[o]n or about May 1, 2018, I signed a three-year lease to rent the property located at 2115 Kress Street, Los Angeles, CA 90046, with the landlord at the time Lee Wong [sic].” (Carradine Decl., ¶ 3.) Carradine states that “[a]ttached as ‘Exhibit B’ is a true and correct copy of the lease agreement. I personally witnessed Ms. Wong signing the lease, and she was present when I signed.” (Carradine Decl., ¶ 3.)

Carradine points to paragraph 38 of the lease agreement, which provides, “ATTORNEY FEES: In any action or proceeding arising out of this Agreement, the prevailing party between Landlord and Tenant shall be entitled to reasonable attorney fees and costs, except as provided in paragraph 37A.” (Carradine Decl., ¶ 3, Ex. B.) Carradine argues that “[s]ince the Plaintiff became bound by this agreement upon their taking of ownership of the property, Plaintiff became the ‘landlord’ for the purposes of the agreement, and is therefore bound by this lease term.” (Mot. at p. 5:1-3.)

As an initial matter, the Court notes that on July 28, 2022, the Court issued an Order in this action denying a motion for attorney fees previously filed by Carradine. On August 9, 2022, Carradine filed a notice of appeal from the July 28, 2022 Order.

On December 19, 2023, the Court of Appeal, Second Appellate District issued an opinion in Case No. B322747. The Court of Appeal’s opinion provides, inter alia, as follows:

“Carradine then sought attorney’s fees from De Witte premised on the lease she had entered with the former owner, which provided for an award of attorney’s fees to the prevailing party “[i]n any action or proceeding arising out of [the lease].” The trial court denied the motion on several grounds, one of which was that the unlawful detainer action was not based on the lease.

Carradine now appeals. She raises multiple alleged errors in the court’s order denying her fees; we find one issue dispositive and thus address only it. Carradine argues the attorney’s fees language in her lease encompassed the unlawful detainer proceeding against her. We disagree. In the circumstances of this particular case, the unlawful detainer action did not “aris[e] out of” the lease as required by the contractual language. As a result, Carradine’s claim for attorney’s fees fails, and we affirm.” (December 19, 2023 Opinion at pp. 2-3.)

The Court of Appeal’s December 19, 2023 Opinion further provides that “[t]he attorney’s fees clause in the lease at issue provides, in relevant part, ‘[i]n any action or proceeding arising out of this [lease a]greement, the prevailing party between [the l]andlord and [the t]enant shall be entitled to reasonable attorney fees and costs.’” (December 19, 2023 Opinion at p. 14.) The Court of Appeal found, inter alia, that “De Witte’s unlawful detainer action did not ‘aris[e] out of Carradine’s alleged lease. The action was not premised in any way on the interpretation of the lease’s terms or the performance of the lease.” (Id. at p. 15.) The Court of Appeal also found that “[t]he motion for summary judgment upon which Carradine ultimately prevailed (and for which she seeks to recover attorney’s fees) was premised on the claim that De Witte’s notice to quit was defective under the provisions of the LAMC, not on any claim by Carradine that she was entitled to possession of the Kress Street property under the lease or other issues concerning the interpretation or performance of the lease.” (Id. at p. 16.)

On March 13, 2024, a Remittitur was filed in this action, providing, inter alia, that “attached is a true and correct copy of the original order, opinion or decision entered in the above-entitled cause on December 19, 2023 and that this order, opinion or decision has now become final. De Witte is awarded its costs on appeal.”[1]

The Court notes that in Benson v. Greitzer (1990) 220 Cal.App.3d 11, 13-14, the Court of Appeal noted that “[w]here an award of attorney’s fees is authorized by statute, a trial court has jurisdiction following an appeal to award attorney’s fees for the appeal…If the prior appellate opinion expressly ruled, however, upon a party’s entitlement to attorney’s fees, the trial court is bound to follow the appellate court’s expressions on the subject, under principles of law of the case.” ((See also In re Marriage of Colvin (1992) 2 Cal.App.4th 1570, 1582, “our decision in appeal No. A052185 will be law of the case on Glicksberg’s entitlement to any fees, and we therefore direct the trial court to refrain from acting on any attorney fee request until the remittitur has been filed in that case.”)

Carradine’s counsel acknowledges in his supporting declaration that “if the prior ruling denying attorney fees is affirmed, then Defendant would not be entitled to attorney fees under the contract (although, perhaps, may have fee entitlement on some statutory basis).” (Post Decl., ¶ 7.) In the instant motion, Carradine does not appear to argue that she is entitled to attorney’s fees on any statutory basis. Rather, as discussed, Carradine asserts that “the lease agreement between the parties entitles the prevailing party to recover reasonable attorney fees.” (Mot. at p. 4:25-26.)

In light of the foregoing, Carradine’s instant motion for attorney fees is denied.

Conclusion

            Based on the foregoing, Carradine’s motion for attorney fees incurred on appeal is denied.

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Carradine is ordered to provide notice of this ruling.

DATED:  May 17, 2024                                 ________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court