Case Number: BC576160 Hearing Date: January 26, 2018 Dept: 46

Case Number: BC576160
WOODLAND HILLS RESTAURANT INC VS MOHSSEN FARD ET AL

Filing Date: 03/19/2015
Case Type: Othr Breach Contr/Warr-not Fraud
Status: Dismissed – Other 11/23/2016

1/26/2018
MOTION – ATTORNEY FEES

NOTICE OF TENTATIVE RULING AND PROCEDURE
FOR SUBMISSION WITHOUT HEARING

TENTATIVE RULING

Mehdi Afshari and Lili Afsharis’ Motion for Attorney’s Fees is DENIED. See discussion.

DISCUSSION

Cross-Defendants Mehdi and Lili (collectively hereinafter, “Afsharis”) now move this court, per their underlying contract and Civ. Code § 1717, for an award of attorney’s fees in the amount of $40,749.00 as against Cross-Complainants Abolghassemi and Zakeri.

CCP §1033.5 provides, in relevant part, as follows:

(a) The following items are allowable as costs under Section 1032:…

(10) Attorney’s fees, when authorized by any of the following:

(A) Contract.

(B) Statute.

(C) Law…

(c) Any award of costs shall be subject to the following:…

(5) … Attorney’s fees allowable as costs pursuant to subparagraph (A) or (C) of paragraph (10) of subdivision (a) shall be fixed either upon a noticed motion or upon entry of a default judgment, unless otherwise provided by stipulation of the parties.

Attorney’s fees awarded pursuant to Section 1717 of the Civil Code are allowable costs under Section 1032 of this code as authorized by subparagraph (A) of paragraph (10) of subdivision (a).

Civ. Code §1717 states, in relevant part, as follows:

“(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…

Reasonable attorney’s fees shall be fixed by the court, and shall be an element of the costs of suit…

(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…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…

(2) Where an action has been voluntarily dismissed or dismissed pursuant to a settlement of the case, there shall be no prevailing party for purposes of this section.”

The Lease to which the Afsharis, Abolghassemi, and Zakeri were all party provides in relevant part:

“If either party incurs any expense, including reasonable attorneys fees, in connection with any action or proceeding, including declaratory relief, instituted by either party by reason of any default or alleged default of the other party hereunder, the party prevailing in such action or proceeding shall be entitled to recover from the other party its reasonable expenses including, without limitation, all attorneys’ fees and court costs.” (Declaration of Moe Keshararzi, Exhibit 1).

The Afsharis are not prevailing parties, and cannot recover attorney’s fees. Civ. Code § 1717(b)(2) expressly prohibits a finding that any party prevailed where an action is voluntarily dismissed or dismissed pursuant to a settlement. See also Santisas v. Goodin (1998) 17 C.4th 599, 621 (“the Legislature barred attorney fee awards in voluntarily dismissed actions within the scope of section 1717”). The Cross-Complaint was voluntarily dismissed after a settlement was reached. (Minute Orders of 10/24/16 and 11/29/16). There can be no prevailing party here as a matter of law. Therefore, there can be no award of attorney fees.

As such, the motion is DENIED.

IT IS SO ORDERED:

Frederick C. Shaller, Judge