Case Number: EC056429 Hearing Date: May 02, 2014 Dept: B

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Motion for Attorneys Fees and for Award of Pre Judgment Interest

This case arose from the Plaintiff’s claim that the Defendants breached an agreement to purchase a catering truck from the Plaintiff. The matter proceeded to trial on April 4, 2012 and a decision was rendered in favor of the Plaintiff. The judgment in favor of the Plaintiff and against the Defendants was entered on October 1, 2012.

The Defendants filed a notice of appeal on November 29, 2012. The Court of Appeal affirmed the judgment and ordered that the Plaintiff would recover costs on appeal (see copy of opinion in exhibit N to moving papers).

This hearing concerns the Plaintiff’s motion for an order awarding it attorney’s fees incurred on the appeal and prejudgment interest.

1. Motion for Attorney’s Fees

On October 24, 2012, the Court awarded the Plaintiff the attorney’s fees of $17,217 that were incurred to litigate the case. The Plaintiff now seeks to add the attorney’s fees that were incurred on the appeal.

The Plaintiff argues that it is entitled to attorney’s fees on appeal because it is the prevailing party on an appeal regarding a contract that awards attorney’s fees to the prevailing party. Civil Code section 1717 provides that a party may recover attorney’s fees when the party prevails in an action based on a contract that provides for the prevailing party to recover attorney’s fees.

The Plaintiff provides a copy of the sales contract in exhibit C to its motion. Page 3 of the exhibit contains an amendment to the contract that provides that if the Defendants are in arrears for 2 payments in 2 months, the catering truck will be repossessed and the Defendants will be responsible for all legal charges. The claims in the Plaintiff’s complaint arise from the Defendants’ failure to make payments on the sales contract. Accordingly, attorney’s fees that the Plaintiff incurred are legal charges to collect the amounts owed on the contract.

The Plaintiff’s attorney, Guy Lochhead, provides facts in his declaration to demonstrate that the Plaintiff incurred attorney’s fees of $2,000 for the appeal. Mr. Lochhead agreed to provide the legal services for the appeal for a payment of $2,000. Mr. Lochhead states that he estimates he spent approximately 30 hours on the appeal. The amount requested of $2,000 is reasonable for an appeal.

Therefore, the Court grants the Plaintiff’s motion and awards it the requested amount of $2,000 in attorney’s fees.

2. Motion for Prejudgment Interest

The opinion of the Court of Appeal, a copy of which is attached as exhibit A to the moving papers, found that there had been a typographical error in the judgment in that the Court had awarded $4,344.67 plus prejudgment interest, but that the written judgment indicated that the award was for $29,543.50 in principal and $4,508.41 in interest (see opinion, pages 3 to 4). The Court of Appeal corrected the judgment so that it indicated the correct amount of principal, $4,344.67 and remanded the calculation of interest to the trial court (see opinion, page 4).

Civil Code section 3287 permits the recover of prejudgment interest on damages certain when the right to recover is vested on a particular day. The Court exercises it discretion to determine this date, but may not fix it earlier than the date on which the action was filed. The prejudgment interest accrues until the entry of judgment. After the entry of judgment, post-judgment interest accrues on the judgment under CCP sections 685.010 and 685.020 at ten percent per annum.

The Plaintiff’s attorney, Guy Lochhead, seeks interest from the date of trial, April 4, 2012, or from the date the action was filed, July 21, 2011. Since the Plaintiff’s claim was for breach of contract, his damages were certain and vested on the date of the breach. The Court authorizes the interest to be calculated from the date of filing because it is closer to the date on which the breach occurred, which was April 6, 2011 when the Defendants defaulted on the contract.

The prejudgment interest accrued until October 1, 2012, which was the date of the entry of judgment. The contract does not specify the interest rate. Under Civil Code section 3289, when a contract entered into after January 1, 1986 does not specify the legal rate of interest, the rate is ten percent per annum after the breach. The contract in this action was entered into on December 8, 2010 (see copy of contract in exhibit C to moving papers). Accordingly, the rate for the prejudgment interest is ten percent per annum.

Mr. Lochhead states in paragraph 5 that he calculated that the prejudgment interest that accrued from the filing date of July 21, 2011 to the entry of judgment on October 1, 2012 is $521.34. Accordingly, the Court orders that the judgment include an award of $521.34 for prejudgment interest.