On 08/05/2015 CACIQUE INC filed a Property - Other Real Property lawsuit against PROCTOR INDUSTRIAL INVESTORS LLC. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are SUSAN BRYANT-DEASON, BARBARA A. MEIERS and DEBRE K. WEINTRAUB. The case status is Disposed - Judgment Entered.
Disposed - Judgment Entered
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
BARBARA A. MEIERS
DEBRE K. WEINTRAUB
DOES 1 THROUGH 20
PROCTOR INDUSTRIAL INVESTORS LLC
PROCTOR INDUSTRIAL INVESTORS LLC
GRODSKY & OLECKI LLP
TAITELMAN MICHAEL A. ESQ.
FREEDMAN + TAITELMAN LLP
2/21/2018: NOTICE OF MOTION AND MOTION FOR ORDER AWARDING ACCRUED AND PRE-JUDGMENT INTEREST AND ATTORNEYS' FEES; ETC
3/9/2018: MEMORANDUM OF POINTS AND AUTHORITIES IN REPLY TO OPPOSITION TO MOTION FOR ORDER AWARDING ACCRUED AND PRE-JUDGMENT INTEREST AND ATTORNEYS' FEES; DECLARATION OF BRADLEY H. KRESHEK IN SUPPORT THEREOF
8/7/2015: ORDER TO SHOW CAUSE HEARING
8/20/2015: Minute Order
11/6/2015: PLAINTIFF CACIQUE'S DECLARATIONS AND EXHIBITS IN OPPOSITION TO DEFENDANT PROCTOR INDUSTRIAL INVESTORS' MOTION FOR ORDER EXPUNGING NOTICE OF PENDENCY OF ACTION (LIS PENDENS)
11/9/2015: NOTICE OF RULING AND ORDER REGARDING NOVEMBER 6, 2015 CASE MANAGEMENT CONFERENCE
11/25/2015: NOTICE OF ENTRY OF ORDER EXPUNGING NOTICE OF PENDENCY OF ACTION
6/15/2016: Minute Order
9/15/2016: NOTICE OF MOTION AND MOTION BY CACIQUE FOR SUMMARY JUDGMENT ANDIOR SUMMARY ADJUDICATION RE: PROCTOR'S CROSS-COMPLAINT
11/29/2016: ORDER APPOINTING COURT APPROVED REPORTER AS OFFICIAL REPORTER PRO TEMPORE
11/30/2016: NOTICE OF RULING ON CACIQUE'S MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION RE: PROCTOR'S CROSS-COMPLAINT
1/24/2017: Minute Order
5/5/2017: DEFENDANT AND CROSS-COMPLAINANT PROCTOR INDUSTRIAL INVESTORS, LLC'S MEMORANDUM OF POINTS AND AUTHORITIES IN REPLY TO OPPOSITION TO MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICAT
6/12/2017: PROCTOR INDUSTRIAL INVESTORS, LLC'S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO CACIQUE, INC.'S MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT
8/23/2017: Minute Order
9/21/2017: DEFENDANT AND CROSS-COMPLAINANT PROCTOR INDUSTRIAL INVESTORS, LLC'S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
11/21/2017: PROCTOR INDUSTRIAL INVESTORS, LLC'S SEPARATE STATEMENT OF DISPUTED AND UNDISPUTED FACTS IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION RE: PROCTOR'S CROSS-COMPLAINT
11/21/2017: PROCTOR INDUSTRIAL INVESTORS, LLC'S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION RE: PROCTOR'S CROSS-COMPLAINT; ETC.
Writ - ReturnRead MoreRead Less
Designation of Record on Appeal; Filed by Cacique, Inc. (Legacy Party)Read MoreRead Less
NOTICE DESIGNATING RECORD ON APPEALRead MoreRead Less
at 09:00 AM in Department 47; Jury Trial - Not Held - Advanced and VacatedRead MoreRead Less
Minute order entered: 2018-04-10 00:00:00; Filed by ClerkRead MoreRead Less
NOTICE OF FILING OF NOTICE OF APPEAL (UNLIMITED JURISDICTION)Read MoreRead Less
UNDERTAKING ON APPEALRead MoreRead Less
Undertaking; Filed by Cacique, Inc. (Legacy Party)Read MoreRead Less
Notice of Appeal; Filed by Cacique, Inc. (Legacy Party)Read MoreRead Less
NOTICE OF APPEALRead MoreRead Less
Minute OrderRead MoreRead Less
Challenge To Judicial Officer - Peremptory (170.6); Filed by Cacique, Inc. (Legacy Party)Read MoreRead Less
PEREMPTORY CHALLENGE TO JUDICIAL OFFICER (CODE CIV. PROC., 170.6)Read MoreRead Less
OSC-Failure to File Proof of Serv; Filed by ClerkRead MoreRead Less
ORDER TO SHOW CAUSE HEARINGRead MoreRead Less
NOTICE OF PENDENCY OF ACTION (LIS PENDENS)Read MoreRead Less
Notice; Filed by Cacique, Inc. (Legacy Party)Read MoreRead Less
Complaint; Filed by nullRead MoreRead Less
COMPLAINT FOR (1) SPECIFIC PERFORMANCE; ETCRead MoreRead Less
SUMMONSRead MoreRead Less
Case Number: BC589523 Hearing Date: October 27, 2020 Dept: 47
Cacique, Inc. v. Proctor Industrial Investors, LLC
(1) MOTION FOR ORDER AWARDING ATTORNEYS’ FEES; (2) MOTION FOR AWARD OF ATTORNEY’S FEES; (3) MOTION TO STRIKE COSTS
MOVING PARTY: (1) Defendant/Cross-Complainant Proctor Industrial Investors, LLC; (2)-(3) Plaintiff/Cross-Defendant Cacique, Inc.
RESPONDING PARTY(S): (1) Plaintiff/Cross-Defendant Cacique, Inc.; (2)-(3) Defendant/Cross-Complainant Proctor Industrial Investors, LLC
STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:
Plaintiff buyer alleged that Defendant seller breached an agreement for sale of real property by refusing to complete improvements before the close of escrow.
Defendant filed a cross-complaint alleging that Plaintiff did not deposit an additional $1,500,000 into escrow as required by the terms of the Agreement once the Contingency Date had passed.
On December 27, 2017, judgment was entered in favor of Defendant/Cross-Complainant Proctor on what remained of the complaint and cross-complaint, and Proctor was declared the prevailing party. On October 31, 2019, the Court of Appeal affirmed the judgment for Proctor on the complaint, reversed the judgment in favor of Proctor on the cross-complaint, and instructed the Court to enter summary judgment in favor of Cacique on the cross-complaint and determine whether there is a prevailing party and, if so, which party, and award attorney fees if deemed appropriate.
Defendant/Cross-Complainant Proctor Industrial Investors, LLC’s motion for attorney’s fees is DENIED.
Plaintiff/Cross-Defendant Cacique, Inc.’s motion for attorneys’ fees is DENIED.
Plaintiff/Cross-Defendant’s motion to strike costs is GRANTED.
Motions for Attorney’s Fees
Both Defendant/Cross-Complainant Proctor Industrial Investors, LLC (“Proctor”) and Plaintiff/Cross-Defendant Cacique, Inc. (“Cacique”) move for attorney’s fees as the prevailing party in this action.
The parties both seek fees pursuant to Civil Code § 1717, which provides, in relevant part:
In 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, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney's fees in addition to other costs.
(Civil Code § 1717(a), bold emphasis added.)
Contractual Basis for Fees
Here, the underlying agreement between the parties provided for the recovery of attorney’s fees by the prevailing party:
Attorneys’ Fees. In the event either Buyer or Seller brings any suit or other proceeding with respect to the subject matter or enforcement of this Agreement, the prevailing party . . . shall, in addition to such other relief as may be awarded, be entitled to recover attorneys’ fees, expenses and costs of investigation as actually incurred.
(Proctor’s Exh. 1 § 14.11.)
Here, Cacique’s complaint was for (1) specific performance, (2) breach of contract, (3) breach of the covenant of good faith and fair dealing, and (4) declaratory relief. Proctor’s cross-complaint was likewise for breach of written contract. The Court finds that these actions were filed with respect to the subject matter or enforcement of the contract.
Thus, if either party is the prevailing party, it is entitled to attorney’s fees under Civil Code § 1717. However, the Court “may also determine that there is no party prevailing on the contract for purposes of this section.” (Civil Code § 1717(b)(1).) Thus, as a threshold issue, the Court must determine whether either of the parties is the “prevailing party” for purposes of an award of attorney’s fees.
Prevailing Party Determination
This Court had previously determined that Proctor was the prevailing party, given that the Court had granted summary judgment to Proctor on both the complaint and the cross-complaint in this action. On Cacique’s appeal, however, the Court of Appeal reversed in part, instructing this Court to enter summary judgment in favor of Cacique on the cross-complaint. The Court of Appeal also reversed the award of attorney’s fees to Proctor as the prevailing party and instructed this Court to “determine which party, if any, is the ‘prevailing party’ in this action, and award any attorney fees it deems appropriate.”
“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. If any party recovers other than monetary relief and in situations other than as specified, the “prevailing party” shall be as determined by the court, and under those circumstances, the court, in its discretion, may allow costs or not and, if allowed, may apportion costs between the parties on the same or adverse sides pursuant to rules adopted under Section 1034.
(CCP § 1032(a)(4).) Under Section 1717, the “party prevailing on the contract shall be the party who recovered a greater relief in the action on the contract.” (CCP § 1717(b)(1).)
As noted above, however, the Court may determine that there is no prevailing party under Section 1717. (Civil Code § 1717(b)(1).) Indeed, the “results of litigation may be so equivocal as to permit or even require that no party be found to have prevailed for purposes of attorney fees under section 1717.” (Hsu v. Abbara (1995) 9 Cal.4th 863, 874.) This is particularly common in cases in which “the opposing litigants could each legitimately claim some success in the litigation.” (Id. at 875.) In contrast, “when the decision on the litigated contract claims is purely good news for one party and bad news for the other[,] the Courts of Appeal have recognized that a trial court has no discretion to deny attorney fees to the successful litigant.” (Id. at 876.) Ultimately, in deciding whether there is a prevailing party, the Court is to “compare the relief awarded on the contract claim or claims with the parties’ demands on those same claims and their litigation objectives as disclosed by the pleadings, trial briefs, opening statements, and similar sources.” (Ibid.)
Here, having compared the parties’ demands with the final resolution of their contract claims, the Court finds that there is no prevailing party in this action.
Proctor argues that it achieved its primary goals of retaining the property and defeating Cacique’s claim for damages. (Proctor’s motion, at p. 8.) This ignores, however, that Proctor’s win on its cross-complaint was reversed. Indeed, Proctor ignores this fact in arguing that Silver Creek, LLC v. Blackrock Realty Advisors (2009) 173 Cal.App.4th 1533 is “directly on point and determinative.” In that case, however, Silver Creek had prevailed on both its complaint and Blackrock’s cross-complaint, even though Silver Creek had been ordered to return Blackrock’s deposit. (Id. at 1537.) Here, in contrast, following the Court of Appeals’ reversal-in-part, Proctor has prevailed only on Cacique’s complaint, not both Cacique’s complaint and Proctor’s cross-complaint. In that cross-complaint, Proctor had sought liquidated damages consisting of the $500,000 Cacique deposited in escrow plus an additional $1,500,000. (Cross-Complaint ¶ 26.) Following the reversal of the judgment in its favor on that cross-complaint (and its earlier partial loss on summary adjudication of the cross-complaint in November 2016), Proctor no longer had a right to claim those amounts. Thus, the final resolution of the parties’ contract claims was far from “purely good news” for Proctor. Cacique’s explanation of the other distinctions between Silver Creek and this case are also persuasive.
Likewise, Cacique argues that it is the prevailing party because it prevailed on Proctor’s cross-complaint, defeating both Proctor’s claim to the $500,000 deposit and its claim for an additional $1,500,000. Cacique also, however, sought monetary damages in its complaint, and it did not prevail on its complaint.
As shown by the litigation results that each party highlights in arguing that it prevailed (and as alternatively argued by Cacique), neither party here obtained a “complete victory,” and therefore it is in the Court’s discretion to determine that “neither party prevailed sufficiently to justify an award of attorney fees.” (Scott Co. v. Blount, Inc. (1999) 20 Cal.4th 1103, 1109.) Ultimately, the results are so equivocal here, as discussed above, that neither party can be considered the prevailing party.
Accordingly, both parties’ motions for attorney’s fees are DENIED.
Motion to Strike Costs
Cacique also moves to strike Proctor’s costs on the ground that Proctor is not the prevailing party for purposes of an award of costs.
A “prevailing party is entitled as a matter of right to recover costs in any action or proceeding.” (CCP § 1032(b).) Here, however, as discussed above, Proctor was not the prevailing party.
Accordingly, for the reasons discussed in connection with the parties’ motions for attorney’s fees, this motion is GRANTED.
Moving party to give notice, unless waived.
IT IS SO ORDERED.
Dated: October 27, 2020 ___________________________________
Randolph M. Hammock
Judge of the Superior Court
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