JIAN LIU ET AL VS ZHAN WU LIN ET AL

Tentative Rulings

Case Number: BC661080    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.