The motion for attorneys’ fees by defendant Christopher Spina (“defendant” or “Spina”) is granted. Fees are awarded in the amount of $40,517.41.

In this case, plaintiffs Susan and James Steele (“plaintiffs” or “the Steeles”) sued for breach of the Settlement Agreement reached in their earlier action against Spina and his corporation, Spina General Contracting, Contra Costa Superior Court Case No. MSC99-04100. Under that agreement, plaintiffs held a deed of trust on Spina’s home, and had certain rights in case of the sale of that property. The Settlement Agreement further provided that the court would have jurisdiction to “determine whether the prevailing party shall be entitled to attorneys’ fees and costs should enforcement of this settlement become necessary.” Settlement Agreement, MSC99-04100, Paragraph 20, Exhibit A to the Third Amended Complaint in this action.

The Steeles dismissed the earlier action, and later brought this case, alleging that Spina had breached the terms of the Settlement Agreement. Spina successfully moved for summary adjudication of the claims against him, and on December 26th, 2013 the court granted summary judgment in his favor. Spina has filed a memorandum of costs and a motion for attorneys’ fees, asking for fees in the amount of $44,011.91.

The Steeles argue, first, that the motion for fees was untimely, having been filed after the memorandum of costs was filed, citing Rules of Court Rules 3.1700 and 3.1702 and Nazemi v. Tseng (1992) 5 Cal.App. 4th 1633, 1638. Nazemi, however, was decided based on a previous version of the rule regarding the time for filing a motion for attorneys’ fees; under the current rule there is no requirement that such a motion be filed at the same time or prior to the memorandum of costs. Rules of Court Rule 3.1702; see also Lee v. Wells Fargo Bank (2001) 88 Cal.App. 4th 1187. Spina’s motion for attorneys’ fees was timely filed.

The Steeles further argue that because Spina failed to follow the procedure set forth in the Settlement Agreement as to an alleged breach, he cannot recover fees under the Agreement. Here, however, it is the Steeles who dismissed their prior case, and who filed this new action alleging breach of the Settlement Agreement. Having brought suit alleging the breach of an agreement that provides that the court with discretion to award attorneys’ fees to a prevailing party in such an action, the Steeles cannot now succeed in arguing that because of how this dispute was brought before the court, Spina is barred from recovering his attorneys’ fees.

The Steeles’ final argument is that the attorneys’ fees requested should have been apportioned to account for fees incurred in connection with the non-contract claims made in this case, and that fees incurred for persons not parties to the Settlement Agreement should not be awarded. As to fees incurred on non-contract claims, here, as Spina notes in reply, the conduct by Spina alleged as a basis of recovery by the Steeles was conduct alleged to be in breach of the Settlement Agreement: delay in recording the Steeles’ deed of trust (Complaint ¶¶ 9 and 11); attempting to sell the property in a manner detrimental to the Steeles’ rights under the Settlement Agreement (Complaint ¶2) and failing to maintain the property in good condition (Third Amended Complaint ¶12). The Settlement Agreement gives the court discretion to award the prevailing party attorneys’ fees “should enforcement of this settlement become necessary.” Spina, as prevailing party in an action brought to enforce the settlement, is entitled to recover his attorneys’ fees in that action, regardless of what legal theories were put forward by the Steeles. See Xuereb v. Marcus & Millichap, Inc. (1992) 3 Cal.App. 4th 1338, 1342-1343. Spina does not seek to recover fees expended in the defense of any other defendants, as shown by the billing records submitted.

Nor should an award of fees be delayed pending the result of the Steeles’ appeal. Nazemi v. Tseng (1992) 5 Cal.App.4th 1633, 1639.

For the reasons stated above, the court awards Spina his attorneys’ fees in the amount of $40,517.41. The court has deducted from the requested $44,011.91 those sums attributed to work assisting defendants Robert Hatch ($2869.50) and Carrie Spina ($625). Although this work may have indirectly benefited Spina, it was not undertaken primarily on his behalf.