2010-00093508-CU-OR

Levi Saxton vs. Leonard Kendrick

Nature of Proceeding: Motion to Determine Party Prevailing on Contract

Filed By: Rosenberg, Sid M.

Defendants Leonard and Betsy Kendrick’s unopposed motion to determine party
prevailing on contract and to fix amount of attorney’s fees is unopposed and granted.

This action arose out of a lease agreement between Defendants and Plaintiffs Levi
Saxton and Steve Anderson. Plaintiffs alleged that Defendants failed to maintain the
property in a habitable condition.

On August 21, 2013, this Court granted Defendants’ motion for terminating sanctions,
and ordered Plaintiffs complaint dismissed with prejudice.

Defendants now move for establishing Defendants as the prevailing party under the
lease agreement and awarding attorneys fees. Defendants present the lease
agreement between the parties, which provides: “[T]he Tenants agree….That the
violation of any of the covenants of this agreement or the non-payment of any rent
when due and unpaid shall be a breach of this agreement and that if suit is brought to
collect rent or damages or to cause eviction from said premises, or to collect the costs
of repairs to or cleaning of said premises, the non-prevailing party agrees to pay all
costs of such action, including reasonable attorneys fees as may be fixed by the
Court.” [emphasis added] (Def. Ex. A, para. 9.) Defendants contend that under Civil Code §1717, they are the prevailing party “on the
contract” and are therefore entitled to an award of attorney’s fees.

Civil Code §1717(a) provides, “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.” “The primary purpose of section 1717 is to
ensure mutuality of remedy for attorney fee claims under contractual attorney fee
provisions.” (Linear Technology Corp v. Tokyo Electron, Ltd. (2011) 200 Cal.App.4th
1527, 1535.)

Here, the contract provides for attorney’s fees to the prevailing party for any suit
brought “to collect rent or damages.” As Plaintiffs’ suit was brought to collect damages
arising out of the allege breach of the implied warranty of habitability, the Court agrees
that the Defendants are the prevailing party and are entitled to an award of attorney’s
fees. The practical definition of prevailing or successful party is consistent with our
appellate courts’ construction of the meaning of “prevailing party” within the context of
Civil Code section 1717. The Court find the contract words are plain and clear.

Plaintiffs failed to oppose the motion, which the Court construes as a concession to the
merits.

Defendants’ request for an award of attorney’s fees of $6,730.70 is reasonable and is
granted.

The Court will sign the order submitted with the moving papers.