Judge Upinder S. Kalra, Case Number: 21STCV44542, Date: 2025-01-31 Tentative Ruling

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On December 7, 2021, Plaintiff 1^st Source Bank (Plaintiff) filed a Complaint against Defendants CTOUR Charter, LLC, CTOUR Investment Holding, Inc., and Charlie Lu (Defendants) with five causes of action for: (1) Breach of Lease Agreement; (2) Enforcement of Guaranty; (3) Enforcement of Guaranty; (4) Account Stated; and (5) Open Book Account.[1]

According to the Complaint, there are two lease agreements at issue: One executed March 22, 2018 and one executed April 20, 2018. These agreements involve equipment rental. Plaintiff alleges that Defendants owe $229,602.90 plus interest and reasonable attorneys’ fees. Plaintiff also alleges that Defendant CTOUR Investment executed a Guaranty of Payment in conjunction with the leases.

On February 24, 2022, Defendants CTOUR Charter, LLC and CTOUR Investment Holding, Inc. filed an Answer.

On November 3, 2023, Plaintiff filed a motion for summary judgment, or alternatively, motion for summary adjudication which the court GRANTED in part and DENIED in part.

On December 6, 2023, Plaintiff filed a Request for Dismissal as to Defendant Charlie Lu only.

On March 5, 2024, Plaintiff filed a Request for Dismissal as to the Third, Fourth, and Fifth Causes of Action.

On March 20, 2024, the court entered Judgment in favor Plaintiff and against Defendants in the amount of $266,855.20 with interest accruing on October 28, 2023.

On October 15, 2024, Plaintiff filed the instant motion for attorney’s fees and costs. On January 21, 2025, Defendants filed an opposition. On January 22, 2025, the court advanced the motion hearing date to January 31, 2025. Plaintiff was granted to leave to file the reply as late as January 29, 2025. As of January 30, 2025, the court has not received a reply.

A prevailing party is entitled to recover costs, including attorneys’ fees, as a matter of right. (Code Civ. Proc., § 1032, subd. (a)(4).) Civil Code section 1717 states in pertinent part: “[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).)

Attorneys’ fees may be recovered by motion served and filed in accordance with CRC Rule 3.1702(b), which states that a motion to claim attorney fees must be filed within the time for filing a notice of appeal under CRC Rules 8.104 and 8.108. CRC Rule 8.104(a) provides:

(1) Unless a statute, rule 8.108, or rule 8.702 provides otherwise, a notice of appeal must be filed on or before the earliest of:

(A) 60 days after the superior court clerk serves on the party filing the notice of appeal a document entitled “Notice of Entry” of judgment or a filed-endorsed copy of the judgment, showing the date either was served;

(B) 60 days after the party filing the notice of appeal serves or is served by a party with a document entitled Notice of Entry” of judgment or a filed-endorsed copy of the judgment, accompanied by proof of service; or

Plaintiff contends an award of $53,408 in attorneys’ fees and $8,000 in costs is proper because they are the prevailing party. Defendants argue such an award is properly denied as untimely.

Here, Plaintiff’s motion is untimely. As discussed above, Plaintiff’s motion was due “on or before the earliest of…60 days after . . . Notice of Entry of judgment . . . or 180 days after entry of judgment.” (CRC Rule 8.104(a).) Judgment was entered on March 20, 2024. Plaintiff served Notice of Entry on August 16, 2024 which was 149 days from entry of Judgment. Plaintiff filed the instant motion 60 days from their August 16, 2024 Notice of Entry. However, the rules unequivocally state the earliest of 60 days after Notice of Entry or 180 days after entry of judgment. Plaintiff’s motion is 209 days after entry of judgment. It is therefore untimely.

Accordingly, the court DENIES Plaintiff’s motion for attorney’s fees and costs.

[1] The third cause of action is presently moot upon Plaintiff’s dismissal of Defendant Charlie Lu. Accordingly, the court declines to discuss argument pertaining to the third cause of action.