VanLaw Food Products v. New England Country Foods CA4/3

Filed 7/6/23 VanLaw Food Products v. New England Country Foods CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

VANLAW FOOD PRODUCTS, INC.,

Plaintiff and Appellant, G061375

v. (Super. Ct. No. 30-2017-00962844)

NEW ENGLAND COUNTRY FOODS, OPINION LLC,

Defendant and Respondent.

Appeal from a judgment of the Superior Court of Orange County, Robert J. Moss, Judge. (Retired judge of the Orange Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed. Magarian & DiMercurio, Mark D. Magarian and Krista L. DiMercurio for Plaintiff and Appellant. M.K. Hagemann and Michael K. Hagemann for Defendant and Respondent.

INTRODUCTION This is the second of two appeals by manufacturer VanLaw Food Products, Inc. (VanLaw) in its litigation with a former client, New England Country Foods, LLC (NECF). Here, VanLaw appeals the trial court’s award of attorney fees in favor of NECF. In the statement of decision, the trial court named NECF the prevailing party because it would obtain a net monetary recovery. We affirm the attorney fee award. FACTS We have provided an exhaustive factual summary of the underlying litigation in our opinion in VanLaw Food Products, Inc. v. New England Country Foods, LLC, case No. G060848 (the appeal of the judgment), and we need not revisit those facts in full. We held that the parties’ written operating agreement was only in effect from January 2015 forward. Prior to January 2015, the parties were operating based on a mixture of oral, written, and implied terms. The trial court named NECF the prevailing party in its final statement of decision issued September 9, 2021, reasoning “the net judgment undoubtedly w[ould] be in favor of” NECF. The same day, the court entered judgment in favor of both parties on their respective cases: VanLaw received $27,441.25 plus prejudgment interest on its complaint, and NECF received $115,571.31 plus prejudgment interest on its cross- complaint. The net amount of damages in the case was $88,130.06 in favor of NECF. The court included blanks in the judgment for NECF’s costs and attorney fees.1 On November 5, 2021, NECF filed a motion for $90,013 in attorney fees pursuant to Civil Code section 17172 based on a fee provision in the operating agreement