Motion for Attorney Fees
Plaintiff shall give notice. 11 Tarver v. Defendants’, Matthew T. Bryenton, D.C. and Bryenton Family Bryenton Chiropractic, Motion to Compel Arbitration is GRANTED. Defendants have shown that there was a written agreement to arbitrate and Plaintiff refused to arbitrate.
A party moving to compel arbitration satisfies its initial burden by producing a written arbitration agreement bearing the opposing party's signature. Only after the opposing party produces admissible evidence disputing the authenticity or execution of that agreement does the burden shift back to the petitioner to prove its existence by a preponderance of the evidence. Condee v. Longwood Mgmt. Corp. (2001) 88 Cal.App.4th 215, 218-219.
Here, Plaintiff admits she signed the Arbitration Agreement as part of the intake paperwork she completed before treatment. There can be no doubt that it applied to the care she received from Defendants. That she felt rushed, or that she did not fully grasp the significance of the document does not make it unenforceable.
Status conference re arbitration is set for November 6, 2026 at 9:30 am, in Dept. N17.
Defendants to give notice. 12 Brookhurst The unopposed motion of defendant Julie Chang (Chang) for leave 107, LLC v. to file a second amended answer is GRANTED. (Code Civ. Proc., § Chang 473(a)(1).)
Courts are bound to apply a policy of great liberality in permitting amendments to the complaint “at any stage of the proceedings, up to and including trial,” absent prejudice to the adverse party. (Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 761.) Absent prejudice, delay alone is not ground for denial. If delay in seeking the amendment has not misled or prejudiced the other side, the liberal policy of allowing amendments prevails. Indeed, it is an abuse of discretion to deny leave in such a case, even if sought as late as the time of trial. (Higgins v. Del Faro (1981) 123 Cal.App.3d 558, 564-565.)
The Court finds Chang has demonstrated the interests of justice would be served by allowing the amendment.
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Accordingly, the motion is GRANTED.
Chang is to separately file and serve the proposed second amended answer which is attached to the motion at Exhibit A within 7 days.
Chang shall give notice of this ruling. 13 Burke v. Before the Court is a motion for attorney fees filed by defendants Benworth Benworth Capital Partners, LLC (Benworth) and Bernardo Navarro Capital (Navarro)(collectively, Defendants) against plaintiff Griffin Burke Partners, LLC (Plaintiff). For the reasons set forth below, the motion is GRANTED in the reduced amount of $16,514.84.
Defendants’ request for judicial notice is GRANTED.
Plaintiff’s request for judicial notice is DENIED based on relevance. Plaintiff’s evidentiary objections are OVERRULED.
Entitlement to Fees: Contractual attorney’s fees are recoverable as costs to the prevailing party. (Code Civ. Proc., § 1033.5, subd. (a)(10)(A).) Under Civil Code Section 1717, in an action to enforce a contract authorizing an award of fees and costs to one party, the party “prevailing on the contract” is entitled to reasonable attorney’s fees. (Civ. Code § 1717, subd. (a).) The “prevailing party on the contract” is the party who recovered a greater relief in the action on the contract.” (Civ. Code § 1717, subd.(b)(1).)
There is no dispute Defendants are the prevailing parties in this action, having obtained a judgment following the Court’s sustention of their demurrer. (ROA 182, 368.) The question is whether Defendants are prevailing parties “on the contract” for purposes of Section 1717.
Defendants produced the promissory noted dated March 24, 2021 (“Note”) referenced in Plaintiff’s complaint, which includes a unilateral attorney fee provision in favor of the lender. Where the contract specifics that attorney fees are recoverable by only one of the contracting parties, as a matter of law it will be read as authorizing a fee award to whichever party prevails in the litigation. (Civ. Code § 1717, subd. (a); Santisas v. Goodin (1998) 17 Cal.4th 599, 611; Pacific Custom Pools, Inc. v. Turner Const. Co. (2000) 79 Cal.App.4th 1254, 1268.) Notwithstanding contrary language in the fee provision, the reciprocal right conferred by Civil Code section 1717 applies to an action on the contract regardless of who initiates the action. (Pacific Custom Pools, Inc., supra, 79 Cal.App.4th at 1268; Boyd v. Oscar Fisher Co. (1989) 210 Cal.App.3d 368, 380.)
Here, the attorney fee provision includes an action to “enforce the terms of this Note.” (Navarro Decl., Ex. 1 at ¶ 6(B).) The reciprocal right conferred by Civil Code section 1717 applies where Plaintiff files an action to enforce the terms of the Note. (Pacific Custom Pools, Inc., supra, 79 Cal.App.4th at 1268.) Plaintiff’s claims arise out of the alleged breach of the terms in the Note requiring Benworth to deliver the loan funds of $10,097 as agreed. (FAC ¶¶ 61, 77.)
The Court rejects Plaintiff’s argument that Benworth has not shown it currently owns or holds the Note. It is undisputed Benworth is a party to the Note, upon which Plaintiff sued Benworth. Plaintiff fails to cite to any competent authority that a party to a contract must produce evidence it currently owns or holds the contract to seek attorney fees thereunder. The cases cited by Plaintiff are inapposite.
The Court also rejects Plaintiff’s argument Navarro is not entitled to fees. To establish entitlement to fees under Civil Code § 1717, a nonsignatory defendant must establish 1) it was sued on a contract with an attorney fee provision; 2) it prevailed on the contract
claim(s); and 4) the opponent would have a right to recover fees had he prevailed. (Reynolds Metals Co. v. Alperson (1979) 25 Cal.3d 124, 128-129.) A nonsignatory sued as though a party to the contract can recover fees as a prevailing party, i.e., because the nonsignatory would have been liable for fees had he lost, he is entitled to fees if he prevails. (Mepco Services, Inc. v. Saddleback Valley Unified School Dist. (2010) 189 Cal.App.4th 1027, 1045- 1048.)
Here, Plaintiff sued both Benworth and Navarro for breach of the terms of the Note. Plaintiff alleges Navarro “all times mentioned in this complaint was the CEO and sole shareholder of Benworth” and sued Navarro as if he were a party to the Note. (FAC ¶¶ 5, 64-77; 123.) Because Navarro would have been liable for fees had he lost on Plaintiff’s claims, Navarro is entitled to fees since he prevailed.
The Court finds Benworth and Navarro are both entitled to reasonable attorney fees and costs.
Reasonableness of Fees: Reasonable attorney’s fees authorized by contract shall be awarded to the prevailing party as “fixed by the court.” (Civ. Code § 1717, subd. (a).) The matter of reasonableness of a party’s attorney fees is within the sound discretion of the trial court. (Bruckman v. Parliament Escrow Co. (1989) 190 Cal.App.3d 1051, 1062.) Generally, courts employ the lodestar method to determine if attorney’s fees are reasonable, which involves multiplying the reasonable rate of services by the number of hours spent on the case. (Nichols v. City of Taft (2007) 155 Cal.App.4th 1233, 1242.)
The Court finds the hourly rates sought by Defendants ranging from $290 to $370 reasonable. (Syers Properties III, Inc. v. Rankin (2014) 226 Cal.App.4th 691, 695-696 [a “reasonable” hourly rate is the prevailing rate for similar work in the community where the court is located]; Heritage Pac. Fin., LLC v. Monroy (2013) 215 Cal.App.4th 972, 1009 [the court may rely on personal knowledge and familiarity with the legal market in setting a reasonable hourly rate].
As for time spent, Defendants seek a total of 76 hours, inclusive of fees incurred and anticipated on this motion. The Court declines to apportion fees based on contract versus noncontract claims because counsel’s services were related to an issue common to all causes of action, i.e., the res judicata defense. (Amtower v. Photon Dynamics, Inc. (2008) 158 Cal.App.4th 1582, 1604-1605 [allocation not required when the 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].)
However, the Court finds the time spent defending a separate action, OCSC Case no. 2022-01296496 (“2022 case”) is not recoverable. Defendants needed to have filed a timely motion for attorney fees in that action showing entitlement to Section 1717 fees as the prevailing party in that action. The time awarded is reduced by 23 hours.
The Court also declines to award time spent on Defendants’ ex parte application to deem the demurrer and motion to strike as timely (01/26/24 to 01/30/24). The application was based on attorney error and should not be borne by Plaintiff. The time awarded is further reduced by 7.1 hours.
Costs: Defendants seek $3,258.14 in costs incurred in this action and the 2022 case. For the reasons set forth above, the costs incurred in the 2022 are not recoverable. The costs otherwise appear reasonable.
In sum, the Court GRANTS the motion and awards attorney fees in the amount of $14,688.50 and $1,826.34 in costs, for a total of $16,514.84.
Counsel for Defendants shall provide notice of this ruling. 14 Vicens vs. Plaintiffs Francisco Vicens and Jennifer Vicens’s (“Plaintiffs” General together) Motion for Attorney Fees and Costs (“Motion”) is Motors, LLC GRANTED.
Plaintiffs are the prevailing parties in this action after settling defendant General Motors, LLC (“Defendant”). (Barry Decl., Ex. 1.) Pursuant to Civ. Code §§ 1794(d) and (e) and 15 U.S.C.A. § 2310(d)(2), as the prevailing parties on a lemon law matter, Plaintiffs are entitled to recover reasonable attorney fees. (Serrano v. Priest (1977) 20 Cal. 3d 25, 49; Doppes v. Bentley Motors, Inc. (2009) 174 Cal. App. 4th 967, 998.)
Plaintiffs’ counsel requests $55,483 in attorney fees. The court, having reviewed the billing entries provided by Plaintiffs’ counsel finds the hourly billing rates are slightly high, but still within the reasonable range. In reviewing the hours billed the court finds some excessive or unnecessary billed time. Approximately 21.7 hours were excessive or not necessary including time billed related to a non-existent motion to tax costs. The court finds a total of $12,619.50 in overbilling.
The court finds the reasonable sum for attorney fees to be $42,863.50. (PCLM Group, Inc. vs. Drexler (2000) 22 Cal.4th 1084, 1094-96.)
The request for costs totaling $2,906.62 is granted as Plaintiffs produced a signed memorandum of costs Defendant did not file the required motion to tax said costs. (Civ. Proc. Code § 1033.5(a)(4) and (14); CA ST CIVIL RULES Rule 3.1700(b)(1).) However, even if the court were to consider the opposition as appropriate to attack the costs, Defendant did not meet its burden of showing any of the costs were unnecessary or excessive.
The total sum of attorney fees and costs awarded to Plaintiffs against Defendant is: $42,863.50 + $2,906.62 = $45,770.12.
Plaintiffs to give notice.