Maedel v. Sherman (KC064352)

Cross-Defendant Maedel’s MOTION FOR ATTORNEY’S FEES

Respondent: Cross-Complainants Sherman, JSA Search Inc, and JSA Interim Staffing, Inc.

TENTATIVE RULING

Cross-Defendant Maedel’s motion for attorney’s fees is GRANTED. Cross-Defendant is entitled to recover $4,758.00 in attorney’s fees.

ATTORNEYS FEES: CC 1717(a) 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.

Where the attorney fee provision is limited to actions “on the contract” or “to enforce the contract,” only fees for services relating to the contract cause of action are recoverable. (Loube v. Loube (1998) 64 Cal.App.4th 421, 430.) Whereas, attorney’s fees provisions that are broadly worded (such as for claims “arising out of the execution of the agreement”) may be interpreted broadly to encompass both contract and tort claims. (Santisas v. Goodin (1998) 17 Cal.4th 608.) However, the joinder of causes of action should not dilute the right to attorney fees. Such fees need not be apportioned when incurred for representation of an issue common to both a cause of action for which fees are permitted and one for which they are not. All expenses incurred on the common issues qualify for an award. WHEN THE LIABILITY ISSUES ARE SO INTERRELATED THAT IT WOULD HAVE BEEN IMPOSSIBLE TO SEPARATE THEM INTO CLAIMS FOR WHICH ATTORNEY FEES ARE PROPERLY AWARDED AND CLAIMS FOR WHICH THEY ARE NOT, THEN ALLOCATION IS NOT REQUIRED. (Akins v. Enterprise Rent-A-Car Co., 79 Cal. App. 4th 1127, 1133.)

The attorneys fees provision in this action states: “If any party commences an action against the other(s) to enforce any of the terms hereof or because of the breach by any party of any of the terms hereof, the losing or defaulting party shall pay to the prevailing party or parties the costs and expenses incurred in connection with the prosecution or defense of such action, including any reasonable costs and attorneys’ fees.” (FAXC, Exhibit 1.)

The court finds the contractual provision for attorney fees in this instance is narrowly worded to apply only to contractual disputes concerning the terms of contract.

However, the court also finds that in this instance, the contract and tort claims are so interrelated, it would be impossible to apportion the tort claim from the contract claim. The 1st cause of action for Breach of Contract alleges that Cross-Defendant Maedel breached the contract because Donald Maedel brought claims that he is still owed compensation from Cross-Complainant. (FAXC, Par. 83.) The 3rd cause of action for Negligence alleges that Cross-Defendant breached his duty by not ensuring that Donald Maedel waived any further claim of ownership or compensation. (FAXC, Par. 92.)

The claims are essentially identical. Where the “negligent” performance of a contract amounts to nothing more than a failure to perform the express terms of the contract, the claim is one for contract breach, not negligence. (North American Chemical Co. v. superior Court (1997) 5 Cal.App.4th 764, 774.) Accordingly, the court finds that Cross-Defendant is not required to apportion fees in this instance.

REASONABLENESS:
To enable the trial court to determine whether attorney fees should be awarded and in what amount, an attorney should present: (1) evidence, documentary and oral, of the services actually performed; and (2) expert opinion, by the applicant and other lawyers, as to what would be a reasonable fee for such services. (Martino v. Denevi (1986) 182 Cal. App. 3d 553, 558-59.) In many cases, however, the trial court will be aware of the nature and extent of the attorney’s services from its observation of the trial proceedings and the pretrial and discovery proceedings reflected in the file. (Id. at 559.)

The court finds that hours expended are excessive. The paralegal spent 11 hours on the demurrer, which in the court’s experience should have taken no more than 5 hours. Counsel spent 13.1 hours on the demurrer and attorneys fees motion, which also should have taken only 5 hours. Accordingly, attorneys fees should be reduced by $4,884.00.

Motion is GRANTED. Cross-Defendant is entitled to recover $4,758.00 in attorneys fees.