Case Number: MC024343    Hearing Date: September 04, 2014    Dept: A11

SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF LOS ANGELES – NORTH DISTRICT

AARON SCHIFMAN, )
) Case Number MC024343
Plaintiff, )
) ORDER AFTER HEARING
V )
) Date of Hearing:
JOSEPH REED, et al. ) September 4, 2014
) Dept. A-11
Defendants. ) Judge Randolph A. Rogers
____________________________________)

Defendant’s motion for attorney’s fees came on for hearing on September 4, 2014. Plaintiff Aaron Schifman appeared in propria persona. Defendant Joseph Reed appeared through his counsel of record, ________________. The Court, having received and reviewed the pleadings of record and evidence submitted and having considered argument of counsel, it is hereby ORDERED:

The Defendant’s motion for attorney’s fees is GRANTED. Defendant is awarded $3,615 in attorneys’ fees.

SO ORDERED this the _____ day of September, 2014.

______________________
RANDOLPH A. ROGERS,
JUDGE

SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF LOS ANGELES – NORTH DISTRICT

AARON SCHIFMAN, )
) Case Number MC024343
Plaintiff, )
) STATEMENT OF DECISION
V )
) Date of Hearing:
JOSEPH REED, et al. ) September 4, 2014
) Dept. A-11
Defendants. ) Judge Randolph A. Rogers
____________________________________)

The Court bases the Order After Hearing of this date upon the following Statement of Decision:

1. The present motion arises from an unlawful detainer complaint filed in December 26, 2013. Plaintiff Aaron Schifman (“Plaintiff”) entered into a commercial lease with Defendant Joseph Reed (“Defendant”) on September 4, 2009. After an alleged default, Plaintiff served a 3-day notice, and then filed the present suit.

2. By order dated February 20, 2014, the case was converted to an ordinary civil action and trial was continued to May 23, 2014. A substitution of attorney without court order was filed by Plaintiff on May 19, 2014, relieving Plaintiff’s counsel Bradley T. Weeks and installing Plaintiff in propria persona.

3. A last minute request for continuance made by Plaintiff was denied by Court order dated May 23, 2014. The case was called for trial. Plaintiff failed to call any witnesses and failed to carry his burden of proof. As a result, judgment was entered in favor of Defendant against Plaintiff on June 24, 2014.

4. Defendant filed the present motion for attorneys’ fees and costs on June 21, 2014, claiming $4,245 in attorneys’ fees and $243.86 in attorney costs and expenses in relation to the suit. Plaintiff filed his Opposition on August 19, 2014.

5. Discussion – Code of Civil Procedure §1717 governs entitlement to attorney fees for “action[s] on a contract.” The statute provides in relevant part: “(a) 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 . . . [¶] (b)(1) The court, upon notice and motion by a party, shall determine who is the party prevailing on the contract for purposes of this section, whether or not the suit proceeds to final judgment. Except as provided in paragraph (2), the party prevailing on the contract shall be the party who recovered a greater relief in the action on the contract. The court may also determine that there is no party prevailing on the contract for purposes of this section.” CCP §1717(a), (b)(1).

6. “[W]hen the results of the litigation on the contract claims are not mixed – that is, when the decision on the litigated contract claims is purely good news for one party and bad news for the other – the Courts of Appeal have recognized that a trial court has no discretion to deny attorney fees to the successful litigant. Thus, when a defendant defeats recovery by the plaintiff on the only contract claim in the action, the defendant is the party prevailing on the contract under section 1717 as a matter of law. [Citations.] Similarly, a plaintiff who obtains all relief requested on the only contract claim in the action must be regarded as the party prevailing on the contract for purposes of attorney fees under section 1717.” Hsu v. Abbara (1995) 9 Cal.4th 863, 875-76; see also F.D.I.C. v. Dintino (2008) 167 Cal.App.4th 333, 357. Section 1717 applies only to contract claims. CCP §1717(a); Santisas v. Goodin (1998) 17 Cal.4th 599, 615. “If an action asserts both contract and tort or other noncontract claims, section 1717 applies only to attorney fees incurred to litigate the contract claims.” Santisas, 17 Cal.4th at pp. 615, 619; Exxess Electronixx v. Heger Realty Corp. (1998) 64 Cal.App.4th 698, 708. In determining which party, if any, prevailed on a contract claim for purposes of section 1717, the court does not consider the parties’ success or failure on non-contract claims. Dintino, supra, 167 Cal.App.4th at p. 358.

7. Article 31 of the contract states explicitly that “if either party . . . bring[s] an action to enforce the terms . . . the prevailing party . . . shall be entitled to his reasonable attorney’s fees.” Motion, Exhibit A. As such, it is undisputed that the prevailing party in the present case is entitled to an award of attorney’s fees.

8. Prevailing Party – To determine whether a party is “a ‘party prevailing on the contract,’ the trial court is to compare the relief awarded on the contract claim or claims with the parties’ demands on those same claims and their litigation objectives as disclosed by the pleadings, trial briefs, opening statements, and similar sources.” Hsu v. Abbara (1995) 9 Cal.4th 863, 876. Ordinarily, the prevailing party under §1717 is the party who recovered a greater relief in the action on the contract.

9. In an unlawful detainer case, the party awarded possession is normally the prevailing party. See Strickland v. Becks (1979) 95 Cal.App.3d Supp. 17, 21. See also Beverly Hills Properties v. Marcolino (1990) 221 Cal.App.3d Supp. 7, 10 (“respondent was the prevailing party, receiving continued possession of the premises”). Here, possession was no longer at issue; the action was converted to a civil action for damages only; Defendant prevailed on the claim for damages and is therefore the “prevailing party” as envisioned by Civil Code §1717.

10. Memorandum of Costs – Plaintiff further contends that attorneys’ fees are not allowed because they were waived for failure to serve a memorandum of costs. This argument is unavailing.

11. Unless the parties agree otherwise, contract attorney fees may be fixed only upon noticed motion. CCP §1033.5(c)(5). Thus, a formal notice of motion must be served and filed in every case after entry of judgment. See Russell v Trans Pacific Group (1993) 19 Cal.App.4th 1717, 1725 (“Contractual attorney fees are to be claimed ‘only’ by noticed motion, not by the mere filing of a memorandum of costs”). The only exception is where a “party is entitled to statutory or contractual attorney’s fees that are fixed without the necessity of a court determination, [then] the fees must be claimed in the memorandum of costs.” Cal. Rules of Court Rule 3.1702(e).

12. More to the point, the Second District Court of Appeal recently expressly ruled that a post judgment motion for an award of attorney’s fees pursuant to contract is not barred by the failure to file a memorandum of costs. See, Mycogen Corp. v Monsanto Corp. (2014) — Cal.Rptr.3d — , 2014 WL 4102376 (Cal.App. 2d Dist.).

13. Reasonableness – Plaintiff’s final argument is that the fees requested by Defendant are unreasonable in amount given the lack of extensive discovery, motions, and a lack of a trial.

14. Defendant claims time and expenses by two attorneys: Christopher J. Peters and Sergio G. Chaidez. Of the time claimed, Defendant is not entitled to attorney’s fees and expenses claimed for travel, amounting to $630 in attorneys’ fees and a further $115.36 in mileage costs. The contract centers on property located in Lancaster, with performance to be completed in Lancaster by Defendant who apparently resides in Lancaster. While Defendant is certainly entitled to have his choice of attorney in representation, he cannot then expect Plaintiff to subsidize his choice when he opts to forgo local counsel, who need not devote the same time and energy to mere travel, and procure counsel who must expend significant effort merely on travelling. As such, none of these fees or costs are awarded.

15. Accordingly, Defendant’s motion for attorneys’ fees is GRANTED. Defendant is awarded $3,615 in attorneys’ fees.

SO ORDERED AND ADJUDGED this the ______ day of September, 2014.

_____________________________
RANDOLPH A. ROGERS, JUDGE