Bacher vs. Prasad

Consequently, Plaintiff is “the party who recovered a greater relief in the action on the contract.” (Civ. Code, § 1717, subd. (b)(1).)

In opposing this motion, Defendants dispute Plaintiff’s compliance with a mediation provision encompassed within the agreement. The relevant contractual language states as follows: “If, for any dispute or claim to which this paragraph applies, any party (i) commences an action without first attempting to

resolve the matter through mediation, or (ii) before commencement of an action, refuses to mediate after a request has been made, then that party shall not be entitled to recover attorney’s fees....” (¶3 of Knierim Declaration and Exhibit 1 thereto, at §11(A).)

To establish compliance, Plaintiff attaches a Demand for Mediation made on December 14, 2021. (¶6 of Knierim Declaration and Exhibit 4 thereto.) The evidence indicates Defense Counsel responded to this demand on December 16, 2021, stating: “In accordance with the contract they are willing to participate in mediation...I would suggest using Peter Smith whose resume is attached as a mediator.” (¶7 of Knierim Declaration and Exhibit 5 thereto; See also ¶5 of Mehta Declaration and Exhibit A thereto.) On that same day, Plaintiff’s Counsel stated: “My preference is to use a mediator with broker experience. Attached are CV’s from Roger Moss and Frederic Trester to consider. Their rates are also less. Please review and we can talk tomorrow morning at 9:00 a.m., if you are available.” (¶7 of Knierim Declaration and Exhibit 5 thereto.)

Plaintiff, additionally, offers an email dated February 1, 2022, wherein Plaintiff’s Counsel states: “This is a follow up after your clients last communication dated 1-7-2022 and a request for a status update, move forward with the Buyer Representation Agreement or Mediation.” (¶8 of Knierim Declaration and Exhibit 6 thereto.)

On February 4, 2022, Defendant’s former Counsel emailed Defendant Ajeshni Doreen Singh, advising: “I should respond that I no longer represent you and that he should communicate with you directly. As you may note they are requesting mediation pursuant to the listing agreement and you should respond to their request otherwise you may not be entitled to attorney’s fees if you are the prevailing party in subsequent litigation. Please advise.” (¶9 of Knierim Declaration and Exhibit 7 thereto.)

Subsequent to the above, on April 5, 2022, and again on April 8, 2022, Plaintiff himself emailed Defendants Ajeshni Doreen Singh and Madhu Prasad, requesting a response to the above referenced February 1, 2022, email. (¶10 of Knierim Declaration and Exhibit 8 thereto.)

Finally, on May 2, 2022, a formal letter was sent to Defendants, which outlined the nature of the dispute and again requested mediation pursuant to ¶11 of the Buyer Representation Agreement. (¶11 of Knierim Declaration and Exhibit 10 thereto.) While the letter dated May 2, 2022, asserts Defendants did not respond to the earlier communications, dated February 1, 2022, April 5, 2022, and April 8, 2022, this fact is not confirmed within a declaration. (Ibid.)

Similarly, while the motion asserts a response was not received to the above (Motion: 8:17-19), Counsel does not confirm this statement within his declaration. (See Knierim Declaration, generally.)

In the event Plaintiff’s Counsel submits a declaration which confirms Defendants did not respond to the mediation communications, between February and June of 2022, the Court is inclined to find compliance with the mediation requirement.

While it is true that Defendants agreed to participate in mediation, on December 16, 2021 (¶7 of Knierim Declaration and Exhibit 5 thereto; See also ¶5 of Mehta Declaration and Exhibit A thereto), a subsequent failure to respond to Plaintiff’s mediation-related communications would indicate Defendants were unwilling to follow through with their earlier agreement. Thus, while Plaintiff did not

schedule mediation, the same is reasonable in response to an apparent rejection of the request.

In opposing the motion, Defendants offer an email from Plaintiff’s Counsel dated September 14, 2022, wherein Plaintiff again offered mediation; however, Defendants attach an email from former Defense Counsel Patricia Welling, wherein Ms. Welling states “despite Mr. Trester’s request for mediation last month, you indicated that the client is now not interested in mediation.” (¶7 of Mehta Declaration and Exhibit C thereto.)

Defendants suggest the above evidence shows that Plaintiff refused to mediate after a request for mediation was made; however, the relevant contractual provision prohibits recovery of attorneys’ fees only where such a refusal occurs “before commencement of an action....” (¶3 of Knierim Declaration and Exhibit 1 thereto, at §11(A).) As the above emails were sent after an action was initiated, they are irrelevant for purposes of determining compliance with ¶11 of the BRAE.

Next, the Court finds that Plaintiff is not entitled to recover fees incurred solely as the result of litigation against Defendants Agarwal Markarian Holdings, Inc. and Inderjit Ghusar (“Broker Defendants”), as no contractual right to attorneys’ fees has been shown, as against these parties.

Instead, the relevant agreement provides only for fees incurred in a proceeding “between Buyer and Broker regarding the obligation to pay compensation under this Agreement....” (¶3 of Knierim Declaration and Exhibit 1 thereto, at §9.) This language does not encompass litigation incurred against third-parties to the contract.

“Where a cause of action based on the contract providing for attorney’s fees is joined with other causes of action beyond the contract, the prevailing party may recover attorney’s fees under section 1717 only as they relate to the contract action.” (Amtower v. Photon Dynamics, Inc. (2008) 158 Cal.App.4th 1582, 1603, citing Reynolds Metals Co. v. Alperson (1979) 25 Cal.3d 124, 129-130.)

“Attorney fees, however, ‘need not be apportioned when incurred for representation on an issue common to both a cause of action in which fees are proper and one in which they are not allowed.” (Brown Bark III, L.P. v. Haver (2013) 219 Cal.App.4th 809, 829.) “The governing standard is whether 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....” (Id. at pp. 829-830.)

While Plaintiff asserts all fees are interrelated, a clear division is discernable in the record of this action.

Defendants Agarwal Markarian Holdings, Inc. and Inderjit Ghusar were not added to the Complaint until April 18, 2023 (ROA No. 77) and did not make an appearance in this action via an Answer, until June 7, 2023. (ROA No. 505.)

While this action was pending against both sets of Defendants, a review of the record indicates Plaintiff filed multiple discovery motions, directed solely at the Broker Defendants. (See ROA Nos. 104, 125, 126, 183 and 191.) Plaintiff offers no explanation as to why the Client Defendants should be held finically responsible for fees incurred by Plaintiff, when the Broker Defendants did not comply with their discovery obligations.

Thereafter, on October 31, 2024, the Court adjudicated Plaintiff’s first cause of action for breach of contract, in his favor, against the Client Defendants. (ROA No. 224.) While Plaintiff filed a second Motion for Summary Adjudication against the Client Defendants on January 29, 2025 (ROA No. 279), the same was denied, given the claim was duplicative. (See ROA No. 316.) Subsequently, Plaintiff dismissed the second cause of action. (ROA No. 357.)

After the above, all litigation in this action has proceeded solely against the Broker Defendants, with the sole exception of a Motion for Entry of Judgment filed on August 1, 2025 (ROA No. 373) and the instant Motion for Attorneys’ Fees (ROA No. 462).

In contrast to the authorities cited by Plaintiff, a clear line of demarcation exists, between the litigation pursued against the Client Defendants (for whom a contractual attorney’s fee provision exists) and litigation against the Broker Defendants (for whom fees are not recoverable.)

“A litigant may not increase his recovery of attorney’s fees by joining a cause of action in which attorney’s fees are not recoverable to one in which an award is proper.” (Erickson v. R.E.M. Concepts, Inc. (2005) 126 Cal.App.4th 1073, 1083- 1084.)

Given the above, Plaintiff is ordered to resubmit his billing, with all entries relating solely to litigation against the Broker Defendants removed. Counsel for Plaintiff is also ordered to provide a summary of the work performed, similar to the summary offered within ¶25 of the Knierim Declaration, limited to the work performed against the Client Defendants.

Plaintiff is ordered to file and serve the above, no later than 16 court days prior to the continued hearing date. Defendants may provide a limited response to the above, no later than 9 court days prior to the continued hearing date. Defendants’ response shall be limited to identifying any charges Defendants believe were incurred solely in connection with litigation against the Broker Defendants. No other objections can be raised.

Plaintiff to give notice.

56 Fiore vs. Wagon Wheel Canyon Community Association

24-01397793 Motion for Attorney Fees

Defendant/Cross-Complainant/Cross-Defendant Wagan Wheel Canyon Community Association (“Association”) motion for attorneys’ fees is DENIED.

If authorized by statute, attorney fees may be awarded to a prevailing party. (Code of Civ. Proc. §§ 1032, subd. (b), 1033.5, subds. (a)(10)(B) & (c)(5).) Code of Civil Procedure section 1032 is the general cost recovery statute for civil lawsuits. “Attorney fees are not normally recoverable costs.” (Riverside Mining Limited v. Quality Aggregates (2024) 104 Cal.App.5th 269, 275.) However, recoverable costs may include attorneys’ fees where authorized by contract, statute, or another law. (See Code Civ.

Proc., § 1033.5, subd. (a)(10); see also Santisas v. Goodin (1998) 17 Cal.4th 599, 606 [attorneys’ fees are recoverable as costs “if, but only if” the party seeking such fees has “a legal basis, independent of the cost statutes and grounded in an agreement, statute, or other law, upon which to claim recovery of attorney fees”].) Civil Code section 5975, subdivision (c), contains a mandatory reciprocal fee shifting provision: “In an action to