JIAN LIU ET AL VS ZHAN WU LIN ET AL

Tentative Rulings

Case Number: ****1080 Hearing Date: July 6, 2021 Dept: 48

[TENTATIVE] ORDER RE: MOTION TO SET ASIDE JUDGMENT

In January 2019, the Court held a court trial, and on March 20, 2019, it issued a Final Statement of Decision in favor of plaintiff and cross-defendant Jian Liu (“Plaintiff”) and against defendant and cross-complainant Zhan Wu Lin (“Defendant”) in the amount of $6,800.00. Plaintiff moved for a new trial, arguing for a higher damages award. On June 27, 2019, the Court denied Plaintiff’s motion for new trial. On August 28, 2019, the Court entered judgment in the amount of $6,800.00 plus costs.

On September 23, 2019, Plaintiff filed a second motion for a new trial, again arguing that the judgment was inadequate and that he was entitled to a higher damages award. On October 11, 2019, the Court denied the motion as an improper motion for reconsideration, and Plaintiff appealed.

On January 9, 2020, the Court awarded attorney fees to Plaintiff in the reduced amount of $21,000.00.

On February 24, 2020, Plaintiff filed a motion to correct the judgment and enter prejudgment costs, which included a memorandum of costs. On May 8, 2020, Plaintiff filed an amendment to the February 24, 2020 motion and memorandum of costs. The amendment stated that Plaintiff sought a total of $268,251.50 in costs plus $2,313.95 in interest. On July 7, 2020, the Court granted the motion in part, awarding costs of $2,768.17 to be added to the judgment. Plaintiff’s total judgment was therefore $30,568.17, consisting of the original judgment of $6,800.00, attorney fees of $21,000.00, and costs of $2,768.17.

Plaintiff then proceeded to file a series of memorandum of costs after judgment. On July 8, 2020, he filed one claiming $109,455.55, and stating that $101,652.25 had previously been allowed as postjudgment costs. That statement was not correct. On July 24, 2020 he filed another, stating a total of $120,274.33 of postjudgment costs. He stated $109,455.55 had previously been allowed. That statement was not correct. On August 14, 2020, Plaintiff filed a memorandum of costs after judgment in the amount of $124,508.03. The memo stated that $120,274.33 had previously been allowed as postjudgment costs, which was not correct. Plaintiff signed these documents under penalty of perjury even though the statements in the documents were not true and correct. Along with these memoranda of costs, Plaintiff filed documents entitled Notice of Worksheet in Support of Memorandum of Costs after Judgment, which improperly sought fees for dozens of hours each month spent by Plaintiff on this matter. Plaintiff included this time, even though the Court had previously told him that as a self-represented party, he was not entitled to recover attorney fees.

On July 21, 2020, the Court denied Plaintiff’s motion to correct Defendant’s name, finding that Plaintiff’s evidence did not support the requested correction.

On November 24, 2020, the Court of Appeal affirmed the denial of Plaintiff’s second motion for new trial.

On May 27, 2021, Plaintiff filed this motion to set aside the judgment due to Defendant’s fraud. Plaintiff seeks a redetermination of damages, a correction of Defendant’s name, and additional damages for sales of competing products. Plaintiff contends that Defendant concealed records, Defendant concocted false narratives, and the lawyers falsely told the Court during trial that nothing was found in discovery. (Motion at p. 7.) According to Plaintiff, he was “denied his day in court on account of Lin’s fraud.” (Id. at p. 12.)

A final judgment may be vacated on the grounds of extrinsic fraud. (City and County of San Francisco v. Cartagena (1995) 35 Cal.App.4th 1061, 1067 (Cartagena).) “Extrinsic fraud occurs when a party is deprived of the opportunity to present his claim or defense to the court; where he was kept ignorant or, other than from his own negligence, fraudulently prevented from fully participating in the proceeding. . . . The essence of extrinsic fraud is one party’s preventing the other from having his day in court.” (Ibid.) “[F]raud is intrinsic and not a valid ground for setting aside a judgment when the party has been given notice of the action and has had an opportunity to present his case and to protect himself from any mistake or fraud of his adversary but has unreasonably neglected to do so. [Citation.] Such a claim of fraud goes to the merits of the prior proceeding which the moving party should have guarded against at the time.” (Id. at pp. 1067-1068.)

Plaintiff argues that Defendant intentionally and fraudulently lied during his deposition about the volume of sales of competing products, and Plaintiff discovered Defendant’s true commissions by subpoenaing records from LycaTel and China Telecom. (Motion at pp. 12-13.) Plaintiff criticizes counsel for both parties for not “let[ting] the judge know the sales and Lin’s lies were of this magnitude,” citing a portion of the trial transcript in which Plaintiff’s counsel stated that no discovery was obtained regarding the amount of profits Defendant earned from the sale of competing products. (Id. at p. 13.) Plaintiff argues that the Court would not hear evidence of Plaintiff’s lost profits because of the false statement that he found nothing in discovery. (Liu Decl. ¶ 20.)

Plaintiff provides no evidence of extrinsic fraud that denied him his day in court. Plaintiff’s argument that Defendant concealed evidence of Plaintiff’s damages before and during trial is not grounds to set aside the judgment. (Cartagena, supra, 35 Cal.App.4th at pp. 1067-1068.) “It is insufficient for a party to come into court and simply assert that the judgment was premised upon false facts. The party must show that such facts could not reasonably have been discovered prior to the entry of judgment.” (Id. at p. 1068.) Plaintiff cannot do so, as his evidence in support of this motion are exhibits that were introduced in the January 2019 trial and a transcript from a deposition taken before the trial. Although Plaintiff is dissatisfied with the final amount of the judgment, he had his opportunity to present his case and has not shown any extrinsic fraud that prevented him from doing so. His complaint is that his attorney did not adequately litigate the case and that Defendant’s attorney lied to the Court during the trial, but that is not extrinsic fraud.

Plaintiff also argues that Defendant’s name should be corrected from “Zhan Wu Lin” to “Zhanwu Lin,” based on Defendant’s signature on a contract and a police report for theft. (Motion at p. 16.) As with Plaintiff’s prior motion to correct Defendant’s name, this evidence is insufficient to support the requested correction. Plaintiff’s complaint names Zhan Wu Lin. After the trial, Plaintiff filed a proposed judgment, which the Court signed, naming Zhan Wu Lin. Plaintiff litigated this case through trial against Zhan Wu Lin. The Court already ruled on this request on July 21, 2020. Therefore, this most recent request is a late improper motion for reconsideration.

The motion to set aside the judgment is DENIED.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. Parties intending to appear are STRONGLY encouraged to appear remotely.

Case Number: ****1080    Hearing Date: January 19, 2021    Dept: 48

[TENTATIVE] ORDER RE: MOTION FOR SANCTIONS

In January 2019, the Court held a court trial, and on March 20, 2019, it issued a Final Statement of Decision in favor of plaintiff and cross-defendant Jian Liu (“Plaintiff”) and against defendant and cross-complainant Zhan Wu Lin (“Defendant”) in the amount of $6,800.00. On August 28, 2019, the Court entered judgment in the amount of $6,800.00 plus costs. On January 9, 2020, the Court awarded attorney fees to Plaintiff in the reduced amount of $21,000.00.

Plaintiff is now a self-represented party. On February 24, 2020, Plaintiff filed a motion to correct the judgment and enter prejudgment costs, which included a memorandum of costs. On May 8, 2020, Plaintiff filed an amendment to the February 24, 2020 motion and memorandum of costs. The amendment stated that Plaintiff sought a total of $268,251.50 in costs plus $2,313.95 in interest. On July 7, 2020, the Court granted the motion in part, awarding costs of $2,768.17 to be added to the judgment. Plaintiff’s total judgment is therefore $30,568.17, consisting of the original judgment of $6,800.00, attorney fees of $21,000.00, and costs of $2,768.17. The Court stated at the July 7, 2020 hearing, which Plaintiff attended, and in the written ruling that Plaintiff was seeking $102,040.40 in attorney fees as costs, but the Court has already made an order determining the proper amount of attorney fees ($21,000.00.) The Court also noted that Plaintiff was requesting $100 per hour for time he spent representing himself. The Court explained that a non-attorney representing himself may not recover fees for the time the party spends on the matter.

Plaintiff then proceeded to file a series of memorandum of costs after judgment. On July 8, 2020, he filed one claiming $109,455.55, and stating that $101,652.25 had previously been allowed as postjudgment costs. That statement was not correct. On July 24, 2020 he filed another, stating a total of $120,274.33 of postjudgment costs. He stated $109,455.55 had previously been allowed. That statement was not correct. On August 14, 2020, Plaintiff filed a memorandum of costs after judgment in the amount of $124,508.03. The memo stated that $120,274.33 had previously been allowed as postjudgment costs, which was not correct. Plaintiff signed these documents under penalty of perjury even though the statements in the documents were not true and correct.

Along with these memoranda of costs, Plaintiff filed documents entitled Notice of Worksheet in Support of Memorandum of Costs after Judgment. These documents listed dozens of hours each month spent by Plaintiff on this matter. And in each worksheet, Plaintiff charged $100 per hour for his time. For example, the Notice of Worksheet Plaintiff filed on July 24, 2020 included $10,520.00 at $100.00 per hour for the 105.20 hours Plaintiff stated he had spent on this matter in the previous five weeks. Plaintiff included this time, even though the Court had previously told him during the July 7, 2020 hearing and in the July 7, 2020 order that as a self-represented party, he is not entitled to recover attorney fees. In the worksheet filed on August 14, 2020, Plaintiff claimed he spent 41.30 hours in the previous three weeks working on this matter, for a total of $4,130.00 in fees.

On October 22, 2020, Defendant and non-party Wen Zhang filed an ex parte application to vacate, quash, or recall an October 6, 2020 writ of execution. Wen Zhang is the wife of Defendant. They explained that Plaintiff was seeking to levy on Wen Zhang’s bank account thereby blocking her access to her bank account, using the writ of execution stating that Plaintiff had a judgment in the amount of $134,766.80. The Court granted the ex parte application in part and vacated, quashed, and recalled the writ of execution on the ground that the Court had awarded only $30,568.17, and the $124,508.03 in additional costs were improper. The Court denied the ex parte application for sanctions against Plaintiff.

On October 28, 2020, Defendant filed this motion for attorney fees and costs arising from Plaintiff’s writ of execution pursuant to Code of Civil Procedure section 128.5, subdivision (a). “A trial court may order a party, the party’s attorney, or both, to pay the reasonable expenses, including attorney’s fees, incurred by another party as a result of actions or tactics, made in bad faith, that are frivolous or solely intended to cause unnecessary delay.” (Code Civ. Proc., ; 128.5, subd. (a).) “ ‘Frivolous’ means totally and completely without merit or for the sole purpose of harassing an opposing party.” (Code Civ. Proc., ; 128.5, subd. (b)(2).)

Defendant argues Plaintiff falsely stated on the Writ of Execution form that the total amount due was $134,766.80. Defendant’s counsel contacted Plaintiff on October 19, 2020, informing him that the writ was improper and asking that the writ be withdrawn. (Hwu Decl. ¶ 7.) Plaintiff refused to do so. (Ibid.)

Plaintiff argues that he acted in good faith. Plaintiff explains that the additional $124,508.03 in the writ total is calculated from his August 14, 2020 memorandum of costs after judgment, to which Defendant agreed by not objecting or filing a motion to tax costs. (Opposition at p. 2.) Plaintiff bases the costs on the parties’ contract term stating, “All late payments are subject to 1.5% per month interest and you are responsible for all collection and legal expense.” (Id. at p. 3.) According to Plaintiff, that language means he can charge $100 per hour for his time and can apply a 1.5% per month interest rate on his unpaid fees.

Although Defendant did not file a motion to strike or tax costs, the memoranda of costs after judgment and worksheets do not request proper costs. The Court previously explained to Plaintiff that he is not entitled to charge for the time he spends on this matter because he is not an attorney. The memorandum of costs after judgment and writ of execution forms refer to Code of Civil sections 685.050 and 685.090 for the allowable costs after judgment. Section 685.050 allows the statutory fee for the issuance of the writ, interest at the legal rate, and the levying officer’s costs. Section 685.040 and 685.080 allow a judgment creditor to claim reasonable and necessary costs of enforcing a judgment, including attorney fees, by making a noticed motion. Section 685.070 states that a judgment creditor may claim certain costs of enforcing a judgment: certain statutory fees, certain costs approved by a judge, and attorney fees approved after a noticed motion. Nothing in these sections states that a party can collect for the time he spends on collecting at the rate of $100 per hour or can charge more than the legal rate of interest.

Also the statements in the memoranda of costs that postjudgment costs had previously been allowed were false. None of the amounts listed as “previously allowed postjudgment costs” had been allowed or approved.

Plaintiff had no basis in the law for the amounts in his memoranda of costs and worksheets, especially after the Court told him that he could not recover for his personal time. Even though Plaintiff is not a lawyer, he still has the obligation to follow the law. If Plaintiff had read the statutes cited in the writ of execution and cost memorandum forms and listened to the Court, he would have understood there is no legal basis for claiming his personal time as costs. According to defense counsel, he told Plaintiff the writ was improper and asked him to withdraw it. Plaintiff refused. Because Plaintiff refused, Defendant and his wife were forced to bring the ex parte application in order to obtain access to their bank accounts.

Plaintiff has tried every which way to increase the judgment amount after his request for attorney fees was reduced to $21,000. His actions in seeking to levy on Defendant’s wife’s bank account with a false writ of execution were frivolous, harassing, and done in bad faith. Therefore, the Court finds sanctions are warranted under section 128.5.

California courts apply the “lodestar” approach to determine what fees are reasonable. (See, e.g., Holguin v. DISH Network LLC (2014) 229 Cal.App.4th 1310, 1332.) This inquiry “begins with the ‘lodestar,’ i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate.” (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095.) From there, the “lodestar figure may then be adjusted, based on consideration of factors specific to the case, in order to fix the fee at the fair market value for the legal services provided.” (Ibid.) Relevant factors include “(1) the novelty and difficulty of the questions involved, (2) the skill displayed in presenting them, (3) the extent to which the nature of the litigation precluded other employment by the attorneys, [and] (4) the contingent nature of the fee award.” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132.) The party seeking fees has the burden of documenting the appropriate hours expended and hourly rates. (City of Colton v. Singletary (2012) 206 Cal.App.4th 751, 784.)

Defendant’s counsel states that his reasonable hourly rate is $450 per hour. (Hwu Decl. ¶ 10.) The Court finds the stated rate is reasonable and fair for the services provided based on counsel’s qualifications, skills, and experience in the Los Angeles market. This matter was not complicated, but needed to be handled quickly and properly to achieve the desired result, which defense counsel did.

Defendant requests a total of $7,232.82, consisting of $7,065.00 in attorney fees for 15.7 hours of work, plus $167.82 in costs. (Motion at p. 7; Hwu Decl., Ex. A. The Court finds that the requested hours are reasonable. The Court declines to award fees for counsel’s anticipated 1.5 hours preparing for and arguing this motion. Because the Court strongly encourages remote hearings, that amount of time is not necessary for preparing for and arguing the motion.

Accordingly, the motion for attorney fees is GRANTED IN PART. The Court awards sanctions against Plaintiff and in favor of Defendant in the amount of $6,390.00 in attorney fees and $167.82 in costs, for a total of $6,557.82, to be paid within 30 days of the date of this order.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. Parties intending to appear are STRONGLY encouraged to appear remotely.

Case Number: ****1080    Hearing Date: July 21, 2020    Dept: 48

[TENTATIVE] ORDER RE: MOTION TO CORRECT DEFENDANT NAME

In January 2019, the Court held a court trial, and on March 20, 2019, it issued a Final Statement of Decision in favor of plaintiff and cross-defendant Jian Liu (“Plaintiff”) and against defendant and cross-complainant Zhan Wu Lin (“Defendant”). On August 28, 2019, the Court entered judgment, and on July 7, 2020, the Court granted in part Plaintiff’s motion to correct judgment. Plaintiff now moves for an order to correct Defendant’s name from Zhan Wu Lin to Zhanwu Lin, citing Code of Civil Procedure section 473, subdivision (a)(1).

As an initial matter, this motion was not set on proper notice. Code of Civil Procedure section 1005, subdivision (b), requires sixteen court days’ notice. Plaintiff served this motion on July 7, fourteen days before the July 21, 2020 hearing, which was insufficient time.

Plaintiff bases his request on a document produced during discovery and admitted into evidence at trial. Therefore Plaintiff knew about this issue before the trial and should have sought to name the correct Defendant on the pleadings before the trial.

There is an insufficient basis to make the correction that Plaintiff seeks. Plaintiff notes that his March 25, 2019 post-trial objections requested Defendant’s name be changed, citing a contract between the parties and a police report. Plaintiff also attaches a copy of the parties’ handwritten contract, reflecting Defendant’s name as Zhanwu Lin. However, Defendant’s own filings in this action state his name as Zhan Wu Lin. Thus, the Court does not find that the evidence supports Plaintiff’s requested correction.

Accordingly, the motion to correct defendant name is DENIED.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. Parties intending to appear are STRONGLY encouraged to appear remotely.

Case Number: ****1080    Hearing Date: July 07, 2020    Dept: 48

[TENTATIVE] ORDER RE: MOTION TO CORRECT JUDGMENT

In January 2019, the Court held a court trial, and on March 20, 2019, it issued a Final Statement of Decision in favor of plaintiff and cross-defendant Jian Liu (“Plaintiff”) and against defendant and cross-complainant Zhan Wu Lin (“Defendant”) in the amount of $6,800.00. On August 28, 2019, the Court entered judgment. On February 24, 2020, Plaintiff filed a motion to correct the judgment and enter prejudgment costs, which included a memorandum of costs. On May 8, 2020, Plaintiff filed an amendment to the February 24, 2020 motion and memorandum of costs.

Legal Standard

Plaintiff cites Code of Civil Procedure section 473, subdivision (a)(1) to support his request for costs. That section authorizes the Court to permit parties to amend pleadings or to file untimely answers and demurrers. It does not authorize the Court to amend judgments. Rather, corrections to judgments are governed by Code of Civil Procedure section 473, subdivision (d), which states that “[t]he court may, upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed . . . .” (Code Civ. Proc., ; 473, subd. (d).)

Cost Memorandums

A prevailing party must file and serve a memorandum of costs within 15 days after service of the notice of judgment. (Cal. Rules of Court, rule 3.1700(a)(1).) The Court entered judgment on August 28, 2019. The Court entered judgment in favor of Plaintiff in the amount of $6,800.00 on the complaint. The Court also entered judgment in favor of Plaintiff as cross-defendant on Defendant’s cross-complaint. Plaintiff is thus the prevailing party in this action and is entitled to costs. (Code Civ. Proc., ; 1032, subds. (a)(4), (b).)

Written notice of the entry of judgment was served by mail on the same date, meaning that Plaintiff had 20 days—i.e., 15 days plus five additional days due to service by mail—to file and serve a memorandum of costs after the judgment was entered. Plaintiff filed and served a memorandum of costs on March 11, 2019. Plaintiff explains that he filed a memorandum of costs on June 24, 2019, with his Addendum 4 to Objections. (Motion at p. 1.) According to Plaintiff, the clerk did not separate these into two filings. (Id.) Plaintiff also filed and served a memorandum of costs on February 24, 2020. Plaintiff filed and served an amended memorandum of costs on May 8, 2020. These last two were filed and served well beyond the 20-day deadline and are untimely.

Although the March 11, 2019 and June 24, 2019 memorandum of costs were filed and served before the entry of judgment, “the premature filing of a memorandum of costs is treated as ‘a mere irregularity at best’ that does not constitute reversible error absent a showing of prejudice. [Citation.]” (Haley v. Casa Del Rey Homeowners Assn. (2007) 153 Cal.App.4th 863, 880.) “Rather, courts treat prematurely filed cost bills as being timely filed.” (Ibid.) Defendant did not file any oppositions, and so he has not shown than Plaintiff’s premature filing of these memorandums of costs caused any prejudice.

Plaintiff explains that he revised the March 11, 2019 memorandum of costs and filed the June 24, 2019 memorandum with more details. (Motion at p. 4.) The Court therefore deems the June 24, 2019 filing, which requested $105,928.66, as the operative memorandum of costs. The June 24, 2019 memorandum of costs includes a proof of service showing that it was served on Defendant by mail on June 21, 2019. Defendant did not file a motion to strike or tax costs. However, some of Plaintiff’s items are not allowable as costs. The right to costs is strictly governed by statute, so the Court has no discretion to award costs that are not statutorily authorized. (Sanford v. Rasnick (2016) 246 Cal.App.4th 1121, 1128; Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774.)

The memorandum of costs lists attorney fees. Plaintiff’s request includes $94,668.00 for the Law Offices of Anthony Chu, $6,222.49 for his “New Jersey lawyer” Howard for depositions, and $1,150.00 for lawyer Marry Mock, for a total of $102,040.49. The Court already considered Plaintiff’s motion for attorney fees and awarded attorney fees in the reduced amount of $21,000.00 on January 9, 2020. The request for attorney fees on the costs memorandum are not allowable.

Plaintiff requests $1,120.00 for his purchase of the trial transcript. Transcripts not ordered by the court are not allowable as costs. (Code Civ. Proc., ; 1033.5, subd. (b)(5).)

After deducting the above costs, Plaintiff is entitled to $2,768.17 in costs.

Costs Based on Contract

Plaintiff also asserts that he is entitled to “prejudgment costs” under the contract upon which this action was based. (Motion at pp. 4-6.) Plaintiff refers to a provision in the contract providing for interest on late payments. In effect, Plaintiff is arguing that the Court’s measure of damages was wrong and the Court should have ordered the interest on the late payments as part of the judgment. That is not a basis on which to correct a judgment. If Plaintiff believes there was error during the trial and in the Court’s decision on the trial, his recourse was to appeal from the judgment.

Attorney Fees for Self-Represented Party

Additionally, Plaintiff requests $100 per hour for time he spent on representing himself when he was acting in pro per. (Motion at p. 7; Plaintiff Decl. ¶ 18.) A non-attorney representing himself may not recover attorney fees for representing himself or herself. (Atherton v. Bd. of Supervisors (1986) 176 Cal.App.3d 433, 437.)

Conclusion

Accordingly, the motion to correct judgment is GRANTED IN PART. Plaintiff is awarded costs in the amount of $2,768.17, to be entered in the judgment.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. Parties intending to appear are STRONGLY encouraged to appear remotely.

Case Number: ****1080    Hearing Date: January 09, 2020    Dept: 48

MOTION FOR ATTORNEY’S FEES

MOVING PARTY: Plaintiff Jian Liu a.k.a. Matt Liu

RESPONDING PARTY(S): Defendants Zhan Wu Line a/k/a John Lin

PROOF OF SERVICE:

• Correct Address: Yes.
• 16/21 (CCP ; 1005(b)): OK. Served by mail on October 28, 2019.

• GRANT motion for attorney’s fees in the reduced amount of $21,000.00.

ANALYSIS

Motion for Attorney’s Fees

Plaintiff Jian Liu a.k.a. Matt Liu moves for an award of attorney’s fees in the amount of $88,875.00.

Plaintiff only submitted one invoice in the amount of $553 dated March 20, 2017, which states at the bottom “All late payments are subject to 1.5% per month interest and you’re responsible for all collection and legal expenses.” Motion, Exh. B. At most Plaintiff submitted evidence that Plaintiff is entitled to recover attorney’s fees incurred in collection $553.

Civil Code ; 1717(b)(1) provides:

The court, upon notice and motion by a party, shall determine who is the party prevailing on the contract for purposes of this section, whether or not the suit proceeds to final judgment. Except as provided in paragraph (2), the party prevailing on the contract shall be the party who recovered a greater relief in the action on the contract. The court may also determine that there is no party prevailing on the contract for purposes of this section.

(Bold emphasis added.)

On August 28, 2019, the Court entered judgment in favor of Plaintiff Jian Liu and against Defendant Zhan Wu Lin in the sum of $6,800.00. Additionally, judgment on the Cross-Complaint was awarded in favor of Cross-Defendant Jian Liu and against Cross-Complainant Zhan Wu Lin.

In his 2AC, Plaintiff sought $143,812 in damages for breach of contract. 2AC, ¶¶ 22, 27, 32. Yet, Plaintiff only recovered $6,800.00. The Court finds that pursuant to Civil Code ; 1717(b)(1), there is no party prevailing on the contract for purposes of ; 1717.

Plaintiff also argues that he is entitled to recover attorney fees under Civil Code ; 1738.16. Defendant asserted a violation of Civil Code ; 1738.10 et seq. in his Cross-Complaint, alleging that Plaintiff/Cross-Defendant did not provide a written contract including the rate and method by which commissions are computed, the time the commission would be paid, the exceptions to the assigned territory and what chargebacks may be made against the commission. Civil Code ; 1738.13(b); Cross-Complaint, ¶¶ 47 – 49. Plaintiff/Cross-Defendant also allegedly did not provide an accounting of orders for which payment is made. Civil code ; 1738.13(d)(1)(2) & (3); Cross-complaint, ¶ 50.

Civil Code ; 1738.16 provides:

“In a civil action brought by the sales representative pursuant to this chapter, the prevailing party shall be entitled to reasonable attorney’s fees and costs in addition to any other recovery.”

Because Plaintiff prevailed as to this cross-claim against him, he is entitled to attorney’s fees, but only to the extent such fees were incurred to defend against the Civil Code ; 1738.16 cause of action.

" When a cause of action for which attorney fees are provided by statute is joined with other causes of action for which attorney fees are not  [*687]  permitted, the prevailing party may recover only on the statutory cause of action. However, the joinder of causes of action should not dilute the right to attorney fees." (Akins v. Enterprise Rent-A-Car Co. (2000) 79 Cal. App. 4th 1127, 1133 [94 Cal. Rptr. 2d 448].) . . . 'A trial court's exercise of discretion is abused only when its ruling " 'exceeds the bounds of reason, all of the circumstances before it being considered.  ' " [Citation.]' " (San Dieguito Partnership, supra, 61 Cal. App. 4th at p. 920, quoting Gonzales v. Personal Storage, Inc. (1997) 56 Cal. App. 4th 464, 479 [65 Cal. Rptr. 2d 473].) Such fees need not be apportioned when incurred for representation on an issue common to both causes of action in which fees are proper and those in which they are not. (See Reynolds Metals Co. v. Alperson (1979) 25 Cal. 3d 124, 129-130 [158 Cal. Rptr. 1, 599 P.2d 83].) Apportionment is not required when the claims for relief are so intertwined that it would be impracticable, if not impossible, to separate the attorney's time into compensable and noncompensable units. (See Akins v. Enterprise Rent-A-Car Co., supra, 79 Cal. App. 4th at p. 1133; Abdallah v. United Savings Bank (1996) 43 Cal. App. 4th 1101, 1111 [51 Cal. Rptr. 2d 286]; Pearl, Cal. Attorney Fee Awards (Cont.Ed.Bar 1999) ; 6.28, p. 6-38.)

Bell v. Vista Unified School Dist. (2000) 82 Cal.App.4th 672, 686-87.

The Court notes that the Cross-Complaint was filed on March 26, 2018. The Court has reviewed the billing records submitted by Plaintiff as Exhibit A to the motion and finds that the reasonable amount of attorney’s fees which can be attributed to defense of the above issue in the Cross-Complaint is $21,000.00.

Plaintiff argues that he is entitled to recover attorney’s fees under Penal Code ; 496(c), which provides; “Any person who has been injured by a violation of subdivision (a) or (b) may bring an action for three times the amount of actual damages, if any, sustained by the plaintiff, costs of suit, and reasonable attorney’s fees.” Penal Code ; 496(a) provides in pertinent part:

(a) Every person who buys or receives any property that has been stolen or that has been obtained in any manner constituting theft or extortion, knowing the property to be so stolen or obtained, or who conceals, sells, withholds, or aids in concealing, selling, or withholding any property from the owner, knowing the property to be so stolen or obtained, shall be punished by imprisonment in a county jail for not more than one year, or imprisonment pursuant to subdivision (h) of Section 1170. However, if the value of the property does not exceed nine hundred fifty dollars ($950), the offense shall be a misdemeanor, punishable only by imprisonment in a county jail not exceeding one year, if such person has no prior convictions for an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or for an offense requiring registration pursuant to subdivision (c) of Section 290.

A principal in the actual theft of the property may be convicted pursuant to this section. However, no person may be convicted both pursuant to this section and of the theft of the same property.

(Bold emphasis added.)

Plaintiff’s ninth cause of action was for violation of Penal Code 496, seeking $200,000 in damages. However, nowhere in the Statement of Decision did the Court find in favor of Plaintiff on his ; 496 claim. The Court does not find that this statute authorizes an award of attorney’s fees in favor of Plaintiff.

Accordingly, the motion for attorney’s fees is GRANTED in the reduced amount of $21,000.