6126, LLC v. DNAM Apparel Industries CA2/4

Filed 4/22/13 6126, LLC v. DNAM Apparel Industries CA2/4 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

6126, LLC, B239780

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BC459842) v.

DNAM APPAREL INDUSTRIES, LLC,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Ralph W. Dau, Judge. Reversed and remanded with directions. Law Offices of Michael J. Perry, Michael J. Perry and Adam S. Rossman for Defendant and Appellant. Law Offices of Perry C. Wander and Perry C. Wander for Plaintiff and Respondent. ______________________________

DNAM Apparel Industries, LLC, appeals from an order denying its motion for attorney fees. It argues the trial court erroneously ruled that Civil Code section 1717 barred the motion. We agree and reverse.

FACTUAL AND PROCEDURAL SUMMARY Respondent 6126, LLC, owns the trademark to a clothing line created by actress Lindsay Lohan. In 2009, respondent gave appellant an exclusive license for the manufacture, marketing, and distribution of trademarked apparel. Section 17.16 of the license agreement provides broadly: “In any dispute arising out of this Agreement, the prevailing party as determined by the Court shall be entitled to its reasonable attorneys‟ fees and costs.” Under section 17.8 of the contract, the parties agree to submit any dispute to mediation before filing a lawsuit; if a party files a lawsuit without making a good faith attempt to mediate, it waives the right to attorney fees and costs. In April 2011, respondent sued appellant and its managing member, Henry Levy, for breach of the license agreement, fraud and negligent misrepresentation. Appellant and Levy demurred on the grounds that Levy was not a party to the contract, and that the claims for fraud and misrepresentation were not sufficiently alleged. Instead of opposing the demurrer, respondent filed a first amended complaint, asserting the same three causes of action and alleging an agency relationship between appellant and Levy. Another demurrer followed. Respondent filed a second amended complaint, which included a request for an accounting and alleged an alter ego relationship between appellant and Levy. It was followed by a third demurrer, which the court sustained with leave to amend. In the meantime, the parties engaged in initial discovery, some of which concerned respondent‟s alter ego theory as to Levy‟s liability on the breach of contract claim. The third and final amended complaint, filed in November 2011, asserted claims for breach of contract and fraud, and requested an accounting. Appellant and Levy demurred to the fraud cause of action. Meanwhile, respondent presented to the court a