Tentative Rulings

Case Number: BC664551    Hearing Date: July 27, 2020    Dept: 58

Judge John P. Doyle

Department 58

Hearing Date: July 27, 2020

Case Name: Swartz v. Sargisian, et al.

Case No.: BC664551

Matter: Motion for Attorneys’ Fees

Moving Party: Defendant Hagop Sargisian

Responding Party: Plaintiff Daniel B. Swartz

Tentative Ruling: The Motion for Attorneys’ Fees is denied.

Having prevailed at trial, Defendant Hagop Sargisian seeks $153,780.87 in attorneys’ fees pursuant to a certain Residential Purchase Agreement (“RPA”). (Civ. Code § 1717.)

Plaintiff argues that the RPA’s fee provision does not encompass this matter and that this action instead sought to enforce a Specs Agreement (also known as a “Side Agreement”) having no attorneys’ fees provision. (FAC ¶ 3.)

The RPA’s fee provision states, “In any action, proceeding or arbitration between Buyer and Seller arising out of this Agreement, the prevailing Buyer or Seller shall be entitled to reasonable attorneys fees and costs from the non-prevailing Buyer or Seller, except as provided in paragraph 22A.”

Defendant argues the RPA’s fee provision encompasses this matter because at trial (1) Defendant argued the RPA’s integration clause barred the Specs Agreement and (2) the RPA was used to indicate that contemporaneous execution of the two agreements was required. Defendant primarily relies on Mountain Air Enterprises, LLC v. Sundowner Towers, LLC (2017) 3 Cal.5th 744, 759.

While Defendant’s argument is somewhat appealing, the fee provision in Mountain Air is distinguishable: “If any legal action or any other proceeding . . . is brought for the enforcement of this Agreement or because of an alleged dispute . . . in connection with any provision of this Agreement, the prevailing party shall be entitled to recover reasonable attorney fees . . . .” In Mountain Air, the Court found that while the action was brought to enforce an illegal contract, it could be said the action necessarily required determining the validity of a competing agreement which contained a fee provision. The court found that the action was, therefore, brought “because of an alleged dispute . . . with any provision of the” agreement providing for fees. In contrast, while the RPA’s fee provision here is broad, it is not apparently so broad as to allow for fees simply because an action includes a dispute relating to the RPA. Defendant has failed to cite any authority providing that the phrase “arising out of” within the RPA can encompass such. There are a plethora of cases which indicate this phrase is sufficiently broad so as to encompass tort claims, but such is not the issue here.

Because there is no contract providing for fees in this matter, the Motion for Attorneys’ Fees is denied.