Case Number: 16UA0483 Hearing Date: July 21, 2016 Dept: A11

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

RAFAEL ALEJANDRE, )
) Case Number 16 UA0483
Plaintiff, )
) ORDER AFTER HEARING
V )
) Date of Hearing:
BILL HADDAD, ) July 21, 2016
) Dept. A-11
Defendant. ) Judge Randolph A. Rogers
____________________________________)

Defendant Bill Haddad’s motion for attorney’s fees came on for hearing on July 21, 2016. Plaintiff Rafael Alejandre appeared through his counsel of record, ________________. Defendant Bill Haddad 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:

Defendant’s motion for attorney’s fees is GRANTED. Plaintiff is ordered to pay attorneys’ fees in the amount of $5,664.50 to BASTA’s client trust account on or before August 25, 2016.

SO ORDERED this the _____ day of July, 2016.

______________________
RANDOLPH A. ROGERS,
JUDGE

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

RAFAEL ALEJANDRE, )
) Case Number 16 UA0483
Plaintiff, )
) STATEMENT OF DECISION
V )
) Date of Hearing:
BILL HADDAD, ) July 21, 2016
) Dept. A-11
Defendant. ) Judge Randolph A. Rogers
____________________________________)

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

1. The present case arises out of a commercial lease.

2. On July 22, 2015, Plaintiff Rafael Alejandre (“Plaintiff”) entered into a written lease for commercial property with Defendant Bill Haddad (“Defendant”). Defendant allegedly defaulted on rent payments for the months of January and February of 2016, causing Plaintiff to serve Defendant with a 3-day notice to pay rent or quit on March 2, 2016. Plaintiff then filed suit on March 15, 2016. Defendant filed his Answer on March 24, 2016. Discovery ensued.

3. The matter came on for court trial on May 26, 2016, at which time Defendant brought a motion for judgment, contending that the 3-day notice was defective for failure to comply with CCP §1161(2), specifically, the notice failed to include the phone number of the person to which payment of rent was to be made. The Court indicated its intent to grant the motion, but continued the hearing to 6/7/16, giving Plaintiff until 6/2/16 to file an Opposition to address the issue of how CCP §1161(2) applied in the commercial lease setting.

4. Plaintiff filed his objection to the motion on June 2, 2016, stating that the face of the 3-day notice might permit a trier of fact to conclude that the telephone number of counsel, which appeared as information on by whom the 3-day notice was prepared, was sufficient to comply with CCP §1161(2). The objection included no arguments relating to the commercial nature of the lease.

5. The matter came on for hearing on June 7, 2016, at which time Plaintiff requested a voluntary dismissal of the action. The Court ordered the action dismissed without prejudice.

6. On June 20, 2016, Defendant filed a motion for attorney’s fees, arguing that he is the prevailing party in this suit; that the lease agreement provides for attorney’s fees; and that attorney’s fees should be awarded in the amount of $5,664.50. Plaintiff filed his Opposition on July 8, 2016, arguing that the lease includes a “hold harmless” provision that precludes Defendant from recovering attorney’s fees; that the dismissal was voluntary; and that the fees sought are not reasonable.

7. Defendant filed his Reply on July 11, 2016, arguing that Defendant is not relying on the lease section Plaintiff cites (concerning the agreement to hold harmless). Defendant further contends that the dismissal was not voluntary, and that attorney’s fees should therefore be awarded.

8. Discussion – Civil Code §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.” Cal. Civ. Code §1717(a), (b)(1).

9. “[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.

10. Plaintiff’s first argument, that attorney’s fees cannot be awarded to Defendant because of the hold harmless provision, must fail. The language Plaintiff relies on states that if “Lessor is made a party defendant to any litigation concerning this lease or the leased premises or the occupancy thereof by lessee, then lessee shall hold harmless lessor from all liability by reason of said litigation, including reasonable attorney’s fees and expenses incurred by lessor.” Opposition at 2:20-24. There are three reasons why this argument fails in its entirety.

11. First, from the plain language of the contract, it has no application here. The contractual provision applies if the lessor is made a defendant in any litigation. Plaintiff, the lessor, was the plaintiff in this suit. As such, the contractual language does not preclude attorney’s fees on the facts of this case.

12. Second, an indemnity provision that seeks to immunize a party from harm resulting from their own acts must be stated explicitly. “To be effective, an agreement which purports to release, indemnify, or exculpate the party who prepared it from liability for that party’s own negligence or tortious conduct must be clear, explicit, and comprehensible in each of its essential details, and the agreement, read as a whole, must clearly notify the prospective releaser or indemnitor of the effect of singing the agreement.” 14A Cal.Jur.3d Contribution and Indemnification §36. Thus, an “indemnity clause phrased in general terms [e.g., one which does not mention the effect of the indemnitee’s negligence] will not be interpreted to provide indemnity for consequences resulting from the indemnitee’s own actively negligent acts.” Building Maintenance Service Co. v. AIL Systems, Inc. (1997) 55 Cal.App.4th 1014, 1021 (quoting Maryland Casualty Co. v. Bailey & Sons, Inc. (1995) 35 Cal.App.4th 856).

13. Interpreting the indemnity provision as Plaintiff intends would have the effect of immunizing Plaintiff from all of his own acts. However, the indemnity provision here is merely stated in general terms, and does not give the prospective indemnitor, Defendant, any notice that the clause is intended to shield Plaintiff against all liability, including liability arising from his own acts. Consequently, California law precludes interpreting the clause as Plaintiff intends.

14. Third, upholding the clause as interpreted by Plaintiff would contravene public policy as stated in Civil Code §1717. Section 1717 “represents an important public policy protecting those who may be in a disadvantageous contractual bargaining position.” International Billing Services, Inc. v. Emigh (2000) 84 Cal.App.4th 1175, 1188. It was “enacted to avoid the perceived unfairness of one-sided attorney fee provisions.” Loduca v. Polyzos (2007) 153 Cal.App.4th 334, 341. Its primary purpose “is to ensure mutuality of remedy for attorney fee claims under contractual attorney fee provisions.” Santisas, supra, 17 Cal.4th at 610. Its effect is “to make reciprocal an otherwise unilateral contractual obligation to pay attorney’s fees.” Bos v. Board of Trustees (9th Cir. 2016) 818 F.3d 486, 489. It is reversible error to interpret a contract in such a manner as to nullify, rather than give effect to, the attorney’s fee clause and Civil Code §1717. See Siligo v. Castellucci (1994) 21 Cal.App.4th 873, 882.

15. Plaintiff’s interpretation of the indemnity provision would have the effect of indirectly destroying the mutuality of remedy provided under Civil Code §1717, despite the fact that parties are prohibited from directly seeking to contract around §1717. This clearly undermines the express public policy of California, and parties may not seek to circumvent the laws by indirect fashion what they are prohibited from doing directly.

16. For all the forgoing reasons, the indemnity provision does not preclude Defendant from seeking attorney’s fees under the attorneys’ fees provision of the lease.

17. Plaintiff next attempts to argue that the case was voluntarily dismissed. However, the facts of this case reveal that this claim is inaccurate. A plaintiff’s right to voluntarily dismiss his case is not absolute, and exceptions under CCP §581 and other limitations have evolved through the courts’ construction of the term commencement of trial, function to place limits on this right. See Mossanen v. Monfared (2000) 77 Cal.App.4th 1402, 1409. “These exceptions generally arise where the action has proceeded to a determinative adjudication, or to a decision that is tantamount to an adjudication.” Harris v. Billings (1993) 16 Cal.App.4th 1396, 1402.

18. In Mary Morgan, Inc. v. Melzark (1996) 49 Cal.App.4th 765, a trial court entered judgment against a plaintiff despite the plaintiff requesting a voluntary dismissal. In that case, the defendant had brought a summary judgment motion, and the court had issued a tentative decision adverse to the plaintiff. Id. at 768. The hearing commenced, but was continued to permit the submission of evidence to demonstrate a triable issue of fact existed pursuant to CCP §437c(h). Id. The plaintiff never filed such evidence, but instead, requested a voluntary dismissal without prejudice. The trial court “found that [plaintiff] was not entitled to dismiss without prejudice . . . because the hearing had commenced . . . and had simply been continued to permit [the plaintiff] to file additional evidence on the motions.” Id.

19. The Court of Appeal upheld the trial court’s ruling. The Court specifically noted that the continuance here was for a particular purpose, and it “does not entitle the opposing party to defeat the motion by collateral maneuvers.” Id. at 771. “Logic and fairness dictate that the right of a plaintiff to voluntary dismiss an action before commencement of trial [be] limited by the dismissal procedure’s conjunction with other judicial procedures.” Id. The Court would not “eviscerate the summary judgment procedure by permitting a plaintiff to voluntarily dismiss his or her action after commencement of a summary judgment hearing and continuation for the express and exclusive purpose of permitting the plaintiff an opportunity to present opposition evidence.” Id. at 771-72. As such, the Court of Appeal found that the right to voluntarily dismiss had terminated when the dismissal was requested.

20. Similarly, in Groth Bros. Oldsmobile, Inc. v. Gallagher (2002) 97 Cal.App.4th 60, a defendant brought a demurrer, and the trial court issued a tentative ruling against the plaintiff that would have sustained the demurrer without leave to amend. Prior to the tentative ruling becoming final, the plaintiff dismissed the action without prejudice, and at the hearing on the demurrer, the trial court denied the defendant’s request for an order vacating the voluntary dismissal and sustaining the demurrer without leave to amend. The trial court refused, and in the ensuing appeal, the Court of Appeal held that the refusal was erroneous. The Court of Appeal held specifically that “where the trial court has made a tentative ruling against the plaintiff sustaining the demurrer without leave to amend, and where the allowance of a voluntary dismissal without prejudice during the time between issuance of the tentative ruling and the ruling becoming final would make a mockery of the tentative ruling procedure, . . . the court erred in concluding that it lacked jurisdiction to vacate the voluntary dismissal.” Id. at 73.

21. These two cases control here. Defendant brought, as he is entitled to do, a motion for judgment on May 26, 2016. The Court expressed to the parties its intent to grant the motion, but continued the hearing to permit Plaintiff to submit supplementary authority to discuss how the requirements of CCP §1161(2) might deviate or be relaxed in the context of commercial leases and tenancies. Plaintiff was given until June 2, 2016 to file supplementary briefing on the matter. Opposition at 4:19-21. Although Plaintiff timely filed an objection, his argument was entirely irrelevant to the point for which the continuance was given. Plaintiff sought to argue that the face of the notice disclosed adequate facts in compliance with CCP §1161(2), without regard to the commercial nature of the tenancy. However, this issue had already been tentatively ruled upon by the Court at the May 26, 2016 hearing.

22. Under these facts, Plaintiff was given notice of the Court’s tentative ruling against him, but was expressly given an opportunity to brief a specific legal issue that could defeat the dispositive motion before the Court. Plaintiff instead filed a pro forma opposition in facial compliance with the time limits set by the Court, then dismissed the suit to avoid the tentative ruling becoming final. These facts are identical to the operative facts of Mary Morgan and Groth Bros. Having received notice of an adverse tentative ruling, and been given a continuance to address a specifically identified issue, Plaintiff was not entitled to thereafter dismiss the suit to avoid contractual attorney’s fees.

23. In light of Mary Morgan and Groth Bros., as well as the operative facts of this case, Plaintiff’s 6/7/16 dismissal was not voluntary such that Civil Code §1717(b)(1) applies.

24. Finally, Plaintiff argues that the attorneys’ fees sought by Defendant are unreasonable. Plaintiff specifically attempts to argue about asserted discovery misconduct, such as check-the-box format discovery, and rescheduling a deposition after “waiting . . . for several hours.” Opposition at 5:10.

25. First, Plaintiff has failed to submit any admissible evidence of these alleged abuses of discovery. The Opposition is accompanied by no declaration under penalty of perjury; no documents that supposedly reflect the form discovery; nor any facts that establish when the supposed abuses occurred. Without evidence, Plaintiff’s argumentation does not justify a conclusion of unreasonableness. Further, the Court notes that the Civil Discovery Act and the California Rules of Court have provided for specific ways in which to address discovery abuses. Abuses of discovery, such as using discovery in a manner that does not comply with specified procedures, CCP §2023.010(b), may be punished by monetary, issue, and evidentiary sanctions. CCP §2023.030. Abusive discovery propounded on a party that is burdensome, oppressive, or meant to harass, may be addressed via an appropriate motion to quash or a motion for a protective order. Such motions, in the unlawful detainer context, may be brought upon 5 days’ notice to the adverse party. CCP §1170.8. Plaintiff never brought any such motion, only airing his complaints after the suit has concluded in an unrelated opposition to a motion. Further, Plaintiff attempts to deny Defendant any attorneys’ fees, including those incurred from the meritorious motion for judgment, the filing and drafting of an Answer, and other court appearances, premised solely on two specific instances during discovery that account for at most 4 of the more than 17 hours of work claimed by Defendant.

26. The Court concludes that the hours and fees claimed by Defendant are reasonable under the facts and circumstances of this case.

27. Accordingly, Defendant’s motion for attorney’s fees is GRANTED. Plaintiff is ordered to pay attorneys’ fees in the amount of $5,664.50 to BASTA’s client trust account on or before August 25, 2016.

SO ORDERED AND ADJUDGED this the ______ day of July, 2016.

_____________________________
RANDOLPH A. ROGERS, JUDGE