Case Number: ES022084 Hearing Date: June 01, 2018 Dept: A

Citywide Concrete Co. v Kassamanian

MOTION TO DETERMINE PREVAILING PARTY AND TO FIX AMOUNT OF ATTORNEY’S FEES AS AN ITEM OF COSTS

Calendar: 18

Case No: ES022084

Hearing Date: 6/1/18 (cont. from 5/11/18)

Action Filed: 12/29/17

MP: Respondent Helen Kassamanian dba Eastern Demolition & Contracting

RP: Petitioner Citywide Concrete Company

ALLEGATIONS:

Petitioner Citywide Concrete Company, Inc. (“Citywide”) filed a verified petition with the Court to release mechanics’ lien pursuant to Civil Code, §§8480-8488. Citywide entered into an agreement with Davis Design and Development, Inc. to perform excavation work on a home construction project. In order to complete the work, Citywide subcontracted a portion of the work to Defendant Helen Kassamian dba Eastern Demolition & Contracting (“Eastern”). Citywide alleges that Eastern abandoned the job and thus lost all lien rights against the property.

RELIEF REQUESTED:

Eastern moves for a Court order deeming it the prevailing party and to fix the amount of attorney’s fees to which it is entitled as the prevailing party in this action.

This matter came for hearing on May 11, 2018. At the hearing, the Court continued the motion to this hearing date of June 1, 2018 in order to give until May 24, 2018 to file supplemental briefing. On May 24, 2018, Citywide file a supplemental opposition.

DISCUSSION:

Eastern moves to be deemed the prevailing party and to recover attorney’s fees and costs based on the following facts. Eastern’s mechanic’s lien was recorded on December 11, 2018. Eastern argues that Citywide prematurely filed this petition against Eastern on December 29, 2017, with a petition hearing date for January 26, 2018. Eastern argues that Citywide refused to take the petition off calendar, such that Eastern was required to file a complaint to foreclose on its mechanics’ lien on January 18, 2018 in Case No. SC128706, well in advance of the statutory deadline and before the petition hearing date. (See Civil Code, §8460(a) [stating the “claimant shall commence an action to enforce a lien within 90 days after recordation of the claim of lien. If the claimant does not commence an action to enforce the lien within that time, the claim of lien expires and is unenforceable.”].) Eastern argues it also prepared and filed an opposition to the petition, but Citywide dismissed its petition on January 23, 2018.

CCP §1032(a)(4) defines the “prevailing party” as “a defendant in whose favor a dismissal is entered, a defendant where neither plaintiff nor defendant obtains any relief, and a defendant as against those plaintiffs who do not recover any relief against that defendant.” Except as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding. (CCP §1032(b).)

Civil Code §8488(c) provides that the prevailing party on a petition for release of a mechanic’s lien is entitled to reasonable attorney’s fees.

Eastern moves to be deemed the prevailing party based on the dismissal entered in its favor and seeks attorney’s fees in the amount of $11,734.25.

In opposition, Citywide argues that the parties agreed that Citywide would dismiss the petition if Eastern filed a separate lawsuit against the property owner (which Eastern did on January 18, 2018 in Case No. SC128706 in Kassamanian v. LPKP II, LLC, and after receiving a communication from Eastern’s counsel that it would not (by clear implication) pursue fees and costs if Citywide dismissed Eastern. Citywide provides an email from Eastern’s counsel, Robert A. Weissman, dated January 19, 2018 (Friday) at 4:54 p.m., in which he requested Citywide’s counsel to take the pending petition off calendar, informed Citywide that Eastern had commenced an action to foreclose its mechanic’s lien, and stated if Citywide continued with the petition Eastern would be the prevailing party and would seek attorney’s fees and costs. (Opp. at Ex. A.) Mr. Weissman requested confirmation by January 22, 2018 (Monday). (Id.) On January 22, 2018 at 12:14 p.m., Mr. Weissman sent a copy of the opposition to the petition to Citywide’s counsel, Nick Campbell. (Opp. at Ex. C.) On January 23, 2018 (Tuesday), Mr. Campbell responded that he had been sick and out of town, and thus was unable to respond by January 22, 2018. (Opp. at Ex. B.) Mr. Campbell informed Mr. Weissman that Citywide would be filing a dismissal to the petition. (Id.) Though the parties discussed the filing of this instant motion for prevailing party and attorney’s fees, Eastern has not taken this instant motion off calendar.

Based on the parties’ discussions, albeit one day late, Citywide did in fact dismiss the petition. As explained by Citywide’s counsel, Citywide dismissed the petition (after one full business day following Eastern’s email and when Citywide’s counsel returned to work). Thus, while Citywide voluntarily dismissed the petition, the Court finds that this was done as a part of an agreement by the parties.

Further, Citywide argues in the supplemental opposition that Eastern’s opposition to the underlying petition was unnecessary because Citywide had indicated to Eastern that it sought to continue the hearing on the petition on the basis that Citywide had been unable to timely serve the petition on Eastern. (Suppl. Campbell Decl., ¶¶9-13.) Citywide’s counsel sent a letter on January 19, 2018 to this effect by email and Federal Express Overnight Delivery, stating that Citywide intended to apply ex parte on January 23, 2018 to continue the hearing on the petition. (Id., Ex. E.) This evidence provides additional support that it was not necessary for Eastern to incur the costs of preparing the opposition to the underlying petition or that it was required to file and serve an opposition by January 22, 2018.

Accordingly, Eastern will not be deemed the “prevailing party” for the purposes of being awarded attorney’s fees as costs.

RULING:

Deny the petition to deem Eastern as the prevailing party.