On 12/16/2019 VENTOP, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY filed a Property - Commercial Eviction lawsuit against GARBIS CHRIKJIAN, INDIVIDUALLY AND DBA CIGAR COMPANY. This case was filed in Los Angeles County Superior Courts, Van Nuys Courthouse East located in Los Angeles, California. The Judge overseeing this case is JESSICA A. UZCATEGUI. The case status is Disposed - Judgment Entered.
Disposed - Judgment Entered
JESSICA A. UZCATEGUI
VENTOP LLC A CALIFORNIA LIMITED LIABILITY COMPANY
GARBIS CHRIKJIAN INDIVIDUALLY AND DBA CIGAR COMPANY
VENTOP LLC A CALIFORNIA LIMITED LIABILITY COMPANY
ROBERT A. LEWIS TRUSTEE OF THE ROBERT LEWIS FAMILY TRUST
ALMARAZ DAVID MICHAEL
SIMON JOSEPH PATRICK
ABB WAYNE MARK
LANSON DON E.
5/17/2021: Appellate Order Dismissing Appeal - Appellate Order Dismissing Appeal NOA: 12/29/20-X BV033424
5/11/2021: Appeal - Notice of Non-Compliance - Appeal - Notice of Non-Compliance "X" NOA 12-29-20
4/8/2021: Appeal - Notice of Fees Due for Clerk's Transcript on Appeal - Appeal - Notice of Fees Due for Clerk's Transcript on Appeal BV034228 NOA 10/08/20
4/28/2021: Notice of Change of Address or Other Contact Information - Notice of Change of Address or Other Contact Information BV034228
3/19/2021: Appeal - Notice to Appellant of Estimated Transcript Costs - Appeal - Notice to Appellant of Estimated Transcript Costs ;BV033424, NA 12/29/20;
1/22/2021: Proof of Service (not Summons and Complaint) - Proof of Service (not Summons and Complaint) re Notice of Appeal
11/2/2020: Opposition (name extension) - Opposition To Plaintiff's Motion for Attorney's Fees
10/8/2020: Ex Parte Application (name extension) - Ex Parte Application to Stay Execution Pending Hearing on Defendant's 1179 Motion
10/13/2020: Declaration (name extension) - Declaration DECLARATION OF PARNAZ MOSHTAEL IN SUPPORT OF PLAINTIFFS OPPOSITION TO DEFENDANTS MOTION TO STAY
9/18/2020: Judgment - Judgment Proposed Judgment
7/13/2020: Brief (name extension) - Brief Mandatory Settlement Brief of Garbis Chrikjian
6/30/2020: Certificate of Mailing for - Certificate of Mailing for (Hearing on Motion to Consolidate; Hearing on Motion for Summa...) of 06/30/2020
3/16/2020: Declaration (name extension) - Declaration OF WAYNE M. ABB IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT
3/2/2020: Separate Statement - Separate Statement
12/16/2019: Summons - Summons on Complaint
1/9/2020: Request for Judicial Notice - Request for Judicial Notice
3/2/2020: Notice of Posting of Jury Fees - Notice of Posting of Jury Fees
DocketRequest for Refund of Reporter Appeal Transcript Deposit with affidavit for release of funds attached; Approved 08/18/21; NA10/08/20;; Filed by: ClerkRead MoreRead Less
DocketUpdated -- Appeal - Remittitur - Appeal Dismissed BV033424: As To Parties: removedRead MoreRead Less
DocketAppeal - Remittitur - Appeal Dismissed BV033424; Filed by: ClerkRead MoreRead Less
DocketAppeal Record Delivered; Issued by: ClerkRead MoreRead Less
DocketAppeal - Original Clerk's Transcript 1 - 5 Volumes Certified 2 VOL 447 PAGES; Filed by: ClerkRead MoreRead Less
DocketAppellate Order Dismissing Appeal NOA: 12/29/20-X BV033424; Filed by: ClerkRead MoreRead Less
DocketAppeal - Notice of Non-Compliance "X" NOA 12-29-20; Filed by: ClerkRead MoreRead Less
DocketUpdated -- Appeal - Notice of Fees Due for Clerk's Transcript on Appeal BV034228 NOA 10/08/20: As To Parties: removedRead MoreRead Less
DocketUpdated -- Notice of Change of Address or Other Contact Information BV034228: As To Parties: removedRead MoreRead Less
DocketUpdated -- Notice of Change of Address or Other Contact Information BV034228: As To Parties: Ventop, LLC, a California limited liability company (Plaintiff)Read MoreRead Less
DocketUpdated -- Event scheduled for 02/13/2020 at 01:30 PM in Van Nuys Courthouse East at Department H Type changed from Hearing on Demurrer - without Motion to Strike to Hearing on Demurrer - with Motion to Strike (CCP 430.10)Read MoreRead Less
DocketMotion to Strike (not initial pleading); Filed by: Garbis Chrikjian, individually and dba Cigar Company (Defendant)Read MoreRead Less
DocketNotice of Unlawful Detainer mailed 12/17/2019Read MoreRead Less
DocketSummons on Complaint; Issued and Filed by: Ventop, LLC, a California limited liability company (Plaintiff); As to: Garbis Chrikjian, individually and dba Cigar Company (Defendant)Read MoreRead Less
DocketProperty Owner/Landlord Only Hearing Notice; Filed by: ClerkRead MoreRead Less
DocketNotice of Case Assignment - Limited Civil Case; Filed by: ClerkRead MoreRead Less
DocketCivil Case Cover Sheet; Filed by: Ventop, LLC, a California limited liability company (Plaintiff); As to: Garbis Chrikjian, individually and dba Cigar Company (Defendant)Read MoreRead Less
DocketComplaint; Filed by: Ventop, LLC, a California limited liability company (Plaintiff); As to: Garbis Chrikjian, individually and dba Cigar Company (Defendant)Read MoreRead Less
DocketOrder to Show Cause Re: Failure to File Proof of Service scheduled for 02/24/2020 at 08:30 AM in Van Nuys Courthouse East at Civil Clerk's OfficeRead MoreRead Less
DocketCase assigned to Hon. Jessica A. Uzcategui in Department H Van Nuys Courthouse EastRead MoreRead Less
Case Number: 19VEUD03285 Hearing Date: November 16, 2020 Dept: W
ventop, llc v. garbis chrikjian dba cigar company
motion for attorney fees
Date of Hearing: November 16, 2020 Trial Date: N/A
Department: W Case No.: 19VEUD03285
Moving Party: Plaintiff Ventop, LLC
Responding Party: Defendant Garbis Chrikjian dba Cigar Company
This is an unlawful detainer action involving commercial property. On December 16, 2019, Plaintiff filed a complaint against Defendant on the grounds the lease had expired on its own terms on April 30, 2018 and that lease did not allow for any more options to renew. Defendant remains in possession of the subject property.
Throughout the initial litigation regarding this issue, Defendant maintained that the lease Plaintiff is suing under is not the applicable lease. Plaintiff alleges even under the Defendant’s lease, Defendant is not entitled to possession because the option language that purports to grant unlimited renewals is ambiguous and equivocal.
The court related the instant case with Chrikjian’s complaint for breach of contract (LC107173) and the Ventop, LLC’s previous unlawful detainer action (LC107250).
On November 2, 2020, the court granted Defendant Chrikjian’s Motion to Stay the Proceedings Pending Appeal. The court denied Defendant’s Motion for Relief from Forfeiture.
Plaintiff’s Motion for Attorney Fees is DENIED.
Plaintiff Ventop, LLC moves the court for an order awarding attorney fees in the amount of $35,483.50 against Defendant Garbis Chrikjian on the grounds that the parties’ lease agreement contains an attorney fee clause that entitles Plaintiff, as the prevailing party, to recover its reasonable attorney fees, costs and expenses incurred in this action.
A prevailing party is entitled to reasonable attorney fees in addition to other costs. (CCP § 1033.5(a)(10).) “Prevailing party” includes the party with a net monetary recovery, a defendant in whose favor a dismissal is entered, a defendant where neither plaintiff nor defendant obtains any relief, and a defendant as against those plaintiffs who do not recover any relief against that defendant. (CCP § 1032(a)(4).) In all other circumstances, the “prevailing party” shall be as determined by the court. (Id.)
The prevailing party bears the burden of proof and the amount is left to the trial court’s sound discretion. (Christian Research Institute v. Alnor (2008) 165 Cal. App. 4th 1315, 1320.) A fee request that appears unreasonably inflated is a special circumstance permitting the trial court to reduce the award or deny one altogether. (Serrano v. Unruh (1982) 32 Cal.3d 621, 635.)
In the instant matter, there is no dispute Plaintiff is the prevailing party. Rather, the parties dispute whether the clause in the lease allows for attorney fees in the instant matter. In the alternative, Defendant disputes the amount of fees requested.
The court finds Plaintiff is not entitled to attorney fees. Plaintiff contends the fee provision broadly applies to the parties’ dispute and the mutuality of remedy under Civil Code section 1717 separately supports awarding Plaintiff its attorney fees. However, the provision does not broadly apply to the issue at hand. Here, the provision fee states: “Tenant shall pay all costs, damages and expenses (including reasonable attorney’s fees and expenses) suffered by Landlord by reason of Tenant’s defaults.” (Abb Decl. Exh. A.)
Plaintiff does not explain how this provision is broad enough to apply to Plaintiff’s unlawful detainer action in which Defendant was a holdover tenant. The court notes there is a holdover tenant provision in the lease agreement, which provides, “If Tenant maintains possession of the Premises for any period after the termination of this Lease (“Holdover Period”), Tenant shall pay to Landlord lease payment(s) during the Holdover Period at a rate equal to the normal payment rate set forth in the Renewal Terms paragraph.” (Abb Decl. Exh. A.)
However, this hold over provision does not reflect Defendant was in default of the lease agreement. The default provision provides the “Tenant shall be in default of this Lease if Tenant fails to fulfill any lease obligation or term by which Tenant is bound.” (Abb Decl. Exh. A.) Plaintiff has failed to demonstrate how Defendant did not fulfill their lease obligations. Plaintiff filed the instant complaint on the grounds the lease had expired on its own terms and that although the lease did not allow for any more options to renew, Defendant remained in possession of the subject property.
Next, Plaintiff has not demonstrated they are entitled to attorney fees through Civil Code section 1717’s “mutuality of remedy” provision. “The first situation in which section 1717 makes an otherwise unilateral right reciprocal, thereby ensuring mutuality of remedy, is “when the contract provides the right to one party but not to the other.” (Olen, supra, 21 Cal.3d 218, 223, 145 Cal.Rptr. 691, 577 P.2d 1031.) In this situation, the effect of section 1717 is to allow recovery of attorney fees by whichever contracting party prevails, “whether he or she is the party specified in the contract or not” (§ 1717, subd. (a)). The second situation in which section 1717 makes an otherwise unilateral right reciprocal, thereby ensuring mutuality of remedy, is when a person sued on a contract containing a provision for attorney fees to the prevailing party defends the litigation “by successfully arguing the inapplicability, invalidity, unenforceability, or nonexistence of the same contract.” (North Associates v. Bell (1986) 184 Cal.App.3d 860, 865, 229 Cal.Rptr. 305.)” (Santisas v. Goodin (1998) 17 Cal.4th 599, 610–611.)
Plaintiff argues the instant action is similar to the second situation and cites North Associates to support their contention. However, North Associates is not similar to the situation at hand. The attorney fee provision in North Associates was much broader. There, the attorney fee provision provided that “[i]n case suit should be brought for recovery of the premises, or any sum due hereunder, or because of any act which may arise out of the possession of the premises, by either party, the prevailing party shall be entitled to all costs incurred in connection with such action, including a reasonable attorney's fee.” (North Associates, supra, 184 Cal.App.3d at p. 862.) This provision is not limited to defaults like the provision in the current lease agreement. As a result, Defendant would not have been entitled to attorney fees in the prior unlawful detainer action. The Tentative Ruling in the prior unlawful detainer action found “the attorney fee clause in the lease agreement is not broad enough to encompass noncontract claims. The lease agreement provides: “Tenant shall be in default of the lease if he fails to fulfill any obligations under the lease... Tenant shall pay all costs, damages, and expenses (including reasonable attorney fees and expenses) suffered by Landlord by reason of Tenant's defaults.” As such, the provision for attorney fees does not broadly cover both contract and tort claims; rather, it covers only in the event of defaults – a contract claim.” (LC107250 Minute Order, March 4, 2020.)
Lastly, the court finds Defendant is not judicially estopped from arguing that the attorney fee provision does not apply to this unlawful detainer action. Even if they were judicially estopped from making the argument, the terms of the lease agreement applies to defaults only.
Based on the foregoing, Plaintiff’s Motion for Attorney Fees is DENIED.
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