LUXONE LLC VS. DAVID PELLONE

August 24, 2026 LAW AND MOTION CALENDAR PAGE 11 Judge: HONORABLE DAVID A. SILBERMAN, DEPARTMENT 11 ________________________________________________________________________

02:00 PM 25-CIV-03512 LUXONE LLC VS. DAVID PELLONE LINE 4

LUXONE LLC MARK POE DAVID PELLONE

RESPONDENT: DAVID PELLONE’S MOTION FOR AWARD OF ATTORNEYS' FEES

TENTATIVE RULING:

Respondent David Pellone’s motion for reasonable attorney’s fees is DENIED.

On May 7, 2025, Petitioner Luxon LLC initiated this action by filing a petition to compel arbitration concerning a dispute arising from a real estate sale contract with Respondent David Pellone. (Petition, filed May 7, 2025.)

California Civil Code § 1717(a) provides that “[i]n 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 ... shall be entitled to reasonable attorney’s fees in addition to other costs.”

Respondent argues that he is entitled to reasonable attorney’s fees under § 1717(a) for prevailing on the petition to compel arbitration in this action. Respondent argues that the fees are warranted pursuant to a clause allowing for such in the Purchase and Sale Agreement (“PSA”) between the parties regarding the real estate transaction underlying their dispute. (Sheldon Decl., Ex. 1, PSA.) The provision allows for the awarding “reasonable attorneys’ fees and all court or arbitration costs” to the prevailing party in “any legal action, arbitration, or other proceeding between Buyer and Seller arising out of this Contract.” (Id., Ex. 1 at 27.G.)

The issue is before the Court is whether Respondent is a prevailing party for the purpose of recovering attorney’s fees under Civil Code § 1717. On the one hand, Respondent has prevailed on the petition to compel arbitration in this action. On the other hand, the parties’ underlying disputes are still being litigated in Respondent’s action.

Respondent relies predominately on Turner v. Schultz (2009) 175 Cal.App. 4th 974, 977. Respondent argues that, like Turner, arbitrability was determined in this standalone action filed by Petitioner, separate from Respondent’s action concerning the dispute arising from the contract. Petitioner argues that his case is akin to DisputeSuite.com, LLC v. Scoreinc.com (2017) 2 Cal.5th 968, in which the California Supreme Court held that a party who prevailed on a motion to dismiss based on a forum selection clause was not a prevailing party for the purposes of § 1717 because the parties’ underlying claims were not resolved, but only moved to a different forum. (Id., at p. 981-92.)

The Court finds the facts here distinguishable from Turner and more akin to DisputeSuite.

August 24, 2026 LAW AND MOTION CALENDAR PAGE 12 Judge: HONORABLE DAVID A. SILBERMAN, DEPARTMENT 11 ________________________________________________________________________

In Turner, a dispute arose between a former employee (Turner) and his employer (and other parties) regarding alleged false representations made to induce Turner into a share buyout agreement. (Turner, 175 Cal.App.4th at 977.) Turner refused to participate in arbitration absent a court order. (Id.) Turner filed an action in Contra Costa County Superior Court on the underlying disputes. (Id.) Shortly thereafter, Turner brought a separate action in the San Francisco Superior Court seeking a declaration that defendants could not proceed in arbitration relating to the agreement until first obtaining a court order, and further seeking an injunction requiring the American Arbitration Association to stay its proceedings until such an order was obtained. (Id., at 978.)

There, the trial court granted a motion for judgment on the pleadings against Turner and subsequently granted a motion for attorney’s fees incurred by the defendants. (Id.) The Court of Appeal upheld the ruling, holding that “irrespective of who becomes the prevailing party in the subsequent arbitration, there was a prevailing party for purposes of section 1717 in this discrete proceeding on the contract, and the trial court could properly award attorney fees.” (Id., at 983-84.) The Court concluded its ruling by specifically noting that “[i]t was Turner who initiated both actions; he must accept the consequences of forcing defendants to fight on two fronts.”

In DisputeSuite, the California Supreme Court distinguished Turner, in part, on the basis that DisputeSuite did not choose to make the opposing party “fight on two fronts.” (DisputeSuite, 2 Cal.5th at 980.) Further, the relief sought in Turner is distinct from the relief sought in this action. Here, Petitioner sought only to compel arbitration of the parties’ underlying dispute, a basic step in resolving a dispute arising from contract where the parties disagree on the applicability of an arbitration clause. In Turner, Turner’s second action, filed separately from his first action on the underlying dispute, sought declaratory relief declaring that the defendants must obtain a court order before proceeding with arbitration, and further sought to enjoin the American Arbitration Association from proceeding with arbitration of the parties’ dispute without such an order.

Accordingly, the Court finds that DisputeSuite controls here. The denial of Petitioner’s petition to compel arbitration did not make it the prevailing party as matter of law under section 1717, as the parties’ underlying disputes for (among other things) breach of contract remain pending in this Court.

Accordingly, Respondent Pellone’s motion for attorney’s fees is DENIED without prejudice.

Any party who contests a tentative ruling must email Dept11@sanmateocourt.org with a copy to all other parties by 4:00 p.m. stating, without argument, the portion(s) of the tentative ruling that the party contests.

If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, counsel for the prevailing party shall prepare for the Court’s signature a written order consistent with the Court’s ruling pursuant to California Rules of Court, rule 3.1312 and provide written notice of the ruling to all parties who have appeared in the action, as required by law and by the California Rules of Court. Please note that Local Rule 3.403(b)(iv) states in part “prevailing party on a tentative ruling is required to prepare a proposed order REPEATING VERBATIM the tentative ruling” (emphasis added). The order should be efiled only, do not email or mail a hard copy to the Court.