Preview
1 GARY LIVAICH, SBN 084186 07/13/2020
BRIAN MANNING, SBN 241512
2 KRISTEN RENFRO, SBN 259162
BENJAMIN TAGERT, SBN 330242
3 DESMOND, NOLAN, LIVAICH & CUNNINGHAM
15th & S Building
4 1830 15th Street
Sacramento, California 95811
5 Telephone: (916) 443.2051
Facsmile: (916) 443.2651
6
Attorneys for Plaintiff and Cross-Defendant
7 Sierra Northwest Properties, LLC
8
9 SUPERIOR COURT OF CALIFORNIA
10 COUNTY OF PLACER
11 SIERRA NORTHWEST PROPERTIES, LLC, Case No. SCV0041099
12 Plaintiff, PLAINTIFF AND CROSS-DEFENDANT
SNP’S OPPOSITION TO KILA TAHOE
13 v. LLC’S MOTION FOR ATTORNEYS’
FEES
14 KILA TAHOE, LLC; ALL PERSONS
UNKNOWN, claiming any legal or equitable Telephone Appearance
15 right, title, estate, lien, or interest in or to the
real property described in the complaint Date: July 24, 2020
16 adverse to plaintiffs’ title, or any cloud on Time: 8:30 a.m.
plaintiffs’ title thereto; DOES 1 through 100, Department: 31
17 inclusive,
18 Defendants. Action Filed: May 2, 2018
______________________________________
19
AND RELATED CROSS-ACTION.
20
21
22
23
24
25
26
27
28
SNP’S OPPOSITION TO KILA’S MOTION FOR ATTORNEYS’ FEES
1 TABLE OF CONTENTS
2
3 I. INTRODUCTION & SUMMARY OF ARGUMENT...................................................... 1
4 II. STATEMENT OF FACTS......................................................................................................... 2
5 A. Litigation Background........................................................................................... 2
6 B. The Settlement Agreement and Don Person’s Refusal to
Adjudicate Purchase Price Due to Undisclosed Social Contacts
7 with Kila’s Counsel..............................................................................................
2
8 C. Kila’s Subsequent Filings…………………………............................................. 4
9
III. ARGUMENT..................................................................................................................... 5
10
A. The Court Lacks Jurisdiction to Award Fees……………………………………. 5
11
B. Even If the Court Had Jurisdiction, Kila Is Not Entitled
12 to the Recovery of Fees Pursuant to Section
1717......................................................................................................................... 8
13
C. Even If Kila Were Entitled to Some Recovery, Its
14 Prevailing Party Status Is Limited, and the Scope
of Any Recovery It Might Be Entitled to Would Have
15 to Be Limited Accordingly …………………….................................................... 9
16 D. The Amount of Any Fee Recovery Should Be Limited to
an Amount Commensurate with the Award Previously
17 Made to SNP for Opposing Kila’s Motion to Enforce the
Settlement Agreement………………………………………………………..…. 10
18
E. Any Net Award of Fees the Court Might Consider Granting
19 Kila Is Unsupported By the Fee Records Supplied By Kila, Which
Make It Impossible for the Court to Credibly Assess Time Actually
20 Reasonably Expended and Fees Incurred By Kila……………………………… 11
21 F. Costs and Expenses Claimed in Kila’s Improper Cost Bill should
Not Be Awarded Pursuant to Kila’s Motion……………………………………. 13
22
23 IV. CONCLUSION .................................................................................................................14
24
25
26
27
28 i
SNP’S OPPOSITION TO KILA’S MOTION FOR ATTORNEYS’ FEES
1 TABLE OF AUTHORITIES
2 Page(s)
3 CASES
4 Hagan Engineering, Inc. v. Mills
(2003) 115 Cal.App.4th 1004.........................................................................................................6
5
J.B.B. Inv. Partners Ltd. v. Fair
6 (2019) 37 Cal. App. 5th 1...............................................................................................8, 9
7 Leach v. Home Sav. & Loan Assn.
(1986) 185 Cal. App. 3d 1295............................................................................................8
8
Rainier Nat'l Bank v. Bodily
9 (1991) 232 Cal. App. 3d 83................................................................................................8
10 Santisas v. Goodin
(1998) 17 Cal.4th 599.........................................................................................................9
11
Summers v. Superior Court
12 (1959) 53 Cal.2d 295..........................................................................................................7
13 Viejo Bancorp, Inc. v. Wood
(1989) 217 Cal. App. 3d 200..........................................................................................6, 7
14
Wackeen v. Malis
15 (2002) 97 Cal. App. 4th 429...............................................................................................6
16
FEDERAL CASES
17
Roy Allen Slurry Seal v. Laborers Intern.
18 Union of North America Highway and
Street Stripers/Road and Street Slurry Local Union 1184, AFL-CIO
19 (9th Cir. 2001) 241 F.3d 1142...........................................................................................7
20 OTHER AUTHORITIES
21 2 Witkin, Cal. Procedure
(3d ed. 1985) Jurisdiction, § 10, pp. 374...........................................................................7
22
STATUTES
23
CCP section 664.6 ..............................................................................................................6, 7, 8, 9
24
CCP section 1717................................................................................................................1, 7, 8, 9
25
CCP section 1032.......................................................................................................................1, 7
26
CCP section 1033.5....................................................................................................................1, 7
27
28 ii
SNP’S OPPOSITION TO KILA’S MOTION FOR ATTORNEYS’ FEES
1 I. INTRODUCTION & SUMMARY OF ARGUMENT
2 Every motion for attorney’s fees has two basic issues: 1. Entitlement to reimbursement of
3 attorney’s fees and, 2. the amount. Entitlement to fees is either based on statute or contract and
4 the amount must be reasonable. (CCP section 1033.5). Here, Kila prevailed on a motion to
5 vacate judgment. It did not prevail in the action, proceeding, or any other motion.
6 In consideration of its successful motion to vacate, Kila seeks the recovery of fees and
7 expenses in the amount of $144,462.50. Kila is not entitled to a recovery of attorney’s fees, nor
8 is the amount it seeks reasonable.
9 Subsequent to the filing of Kila’s motion to vacate judgment and enter a new judgment,
10 and the filing of the present motion, this Court ruled that it entered the new judgment without
11 jurisdiction and is void. Without the requisite jurisdiction, this Court does not presently have the
12 power or authority to consider Kila’s motion let alone grant it. Arguendo, if the Court were to
13 entertain Kila’s motion, California Code of Civil Procedure (“CCP”) section 1032 and California
14 Civil Code (“CC”) section 1717 do not operate to supply a statutory basis for the recovery of
15 attorney’s fees.
16 In an abundance of caution, SNP also offers that paragraph 11 of the Settlement
17 Agreement would only serve as a basis of a limited recovery. Kila was unsuccessful in its
18 opposition to SNP’s Motion to Enforce the Settlement Agreement. Kila was only successful in
19 its subsequent Motion to Vacate And Enter A New And Different Judgment, and that was only a
20 partial victory since the new Judgment was subsequently vacated as void for lack of jurisdiction.
21 It was not successful in the underlying action. Said action was dismissed by mutual consent with
22 each party bearing its own fees and costs.
23 In the unlikely event the Court were to consider Kila was entitled to recovery of fees, it
24 should decline to do so, or drastically reduce the amount claimed because Kila has failed to
25 supply sufficient facts, evidence or supporting billing records to establish the fees were necessary
26 or reasonable.
27 ///
28 ///
1
SNP’S OPPOSITION TO KILA’S MOTION FOR ATTORNEYS’ FEES
1 II. STATEMENT OF FACTS
2 A. Litigation Background
3 Kila continues to tell a tale that has never been grounded in fact – that SNP sought to and
4 succeeded in delaying construction of its Tahoe City Lodge project. The reality is that SNP’s suit
5 did not prevent Kila from proceeding with its project. SNP did not cause Kila to lose a building
6 season. Kila is the only one who has taken actions that have resulted in the project remaining
7 unbuilt. SNP never obtained an injunction preventing Kila’s project from moving forward. Yet
8 other than demolishing dilapidated old structures on the property, Kila has taken no action in
9 furtherance of construction of the project. There is no showing that Kila procured the necessary
10 permits for the grading or construction. Kila voluntarily bound itself not to proceed with vertical
11 construction, at its own proposal, via the Settlement Agreement. And now, even after the Court
12 ruled the Settlement Agreement is unenforceable, Kila continues to try to make SNP the
13 scapegoat for what appears much more likely to be Kila’s own financial and/or other
14 mismanagement of its project – exemplified by its foolhardy approach to resolving what is at its
15 core a relatively simple easement dispute with SNP.
16 B. The Settlement Agreement and Don Person’s Refusal to Adjudicate Purchase
Price Due to Undisclosed Social Contacts with Kila’s Counsel
17
18 The parties went to a binding mediation before Donald Person. And he refused to act
19 because of prior social contacts with Kila’s counsel, Mike Brown – a fact Kila has repeatedly
20 tried to downplay by inaccurately reporting to the Court that Mr. Person’s conflicts were due to
21 relations with counsel for both parties.
22 Mr. Person revealed at the beginning of the mediation that he dined at Mr. Brown’s
23 mother’s home and discussed plans for hiking together in the Sierras. (Livaich Decl., ¶ 21.)
24 Kila now seeks to benefit from its own wrongdoing in bringing about the demise of the
25 Settlement Agreement.
26 The Court ruled the Settlement Agreement was unenforceable since it determined that
27 Person acting as a mediator was a material term of the Settlement Agreement. This finding was
28 in spite of the fact that both parties indicated by their subsequent conduct Mr. Person was not
2
SNP’S OPPOSITION TO KILA’S MOTION FOR ATTORNEYS’ FEES
1 material to the deal. Kila itself filed a motion seeking the appointment of an alternative mediator
2 when the parties differed in their preferred alternative mediator. It did not insist on Person and
3 neither did SNP. SNP preferred Retired Judge Robert Hight and Kila preferred Retired Justice
4 Fred K. Morrison. SNP conceded shortly thereafter to Morrison, but Kila changed position so
5 that the case would not be resolved. Kila offered at least three other alternative mediators, two of
6 which were not mediators at all. One was an appraiser; the other was a real estate broker. SNP
7 suggested several mediator options. Kila rejected them all. Clearly Mr. Person was not material
8 to the settlement. And what is also clear is that the parties would have benefitted from the Court
9 providing assistance to have a mediator selected or appointed.
10 Kila further sabotaged SNP’s efforts to bring Mr. Person back into the process, refusing
11 to consider terms and conditions Mr. Person would require to be comfortable acting in an
12 adjudicative capacity. And Kila has the gall to baselessly accuse SNP’s counsel of
13 misrepresenting Mr. Person’s consideration of the matter, in an attempt to contort good faith last
14 ditch efforts on SNP’s part to try to salvage the Settlement Agreement 1.
15 Good faith and fair dealing were lacking on Kila’s part. That is why this case is not
16 resolved. SNP always tried, in good faith, to preserve the Settlement Agreement, to obtain the
17 benefit of their bargain, to wit: the sale and purchase of the building owned by SNP.
18 SNP sought entry of Judgment on the terms of the parties’ Settlement Agreement, as
19 deemed modified by operation of the severability clause contained in Paragraph 26 of the
20 Settlement Agreement, and a determination that the parties had identified a new mutually
21 agreeable mediator based on SNP’s reasonable concession to proceed Justice Morrison shortly
22 after the denial of Kila’s motion.
23
24 1 Brown accuses SNP’s counsel of misrepresenting communications with Donald Person. (See Brown
Dec., 4:5-25, ¶¶14-16.) In so doing, he distorts the facts, which were at all times reported to the
25 Court in good faith, that SNP’s counsel had communicated with Mr. Person, and that he had
indicated he would consider overseeing and adjudicating the purchase price, on terms acceptable to
26 him, if the parties could come to agreement on them. Mr. Person ultimately withdrew his offer to
wade back into the waters when it became clear that the parties were unable to do this. This was
27 precipitated by Kila’s rejection of any deviation in the binding mediation procedure and to employ
more formal aspects of binding arbitration. SNP properly promptly withdrew its motion for
28 reconsideration upon Mr. Person’s withdrawal.
3
SNP’S OPPOSITION TO KILA’S MOTION FOR ATTORNEYS’ FEES
1 SNP presented a reasonable interpretation of the Settlement Agreement, and made a
2 persuasive case for its enforcement. Kila unsuccessfully opposed SNP’s motion. The Court
3 entered a September 2, 2019 Ruling on Submitted Matter finding the Settlement Agreement
4 enforceable, and entered a November 4, 2019 Judgment pursuant to its terms. 2
5 C. Kila’s Subsequent Filings
6 Despite no change in relevant law or facts, Kila chose to undertake multiple efforts
7 following the Court’s finding that the Settlement Agreement was enforceable to persuade the
8 Court not to enter the Judgment and to vacate the Judgment and modify its order as to
9 enforceability. And we now know that Kila was so stubbornly set on extricating itself from its
10 obligations under the Settlement Agreement that apparently it was willing to incur in excess of
11 $144,000 to change the Court’s mind.
12 Kila was ultimately successful in its mission. It did convince the Court to vacate the
13 September 2, 2019 Ruling on Submitted Matter and the November 4, 2019 Judgment and enter
14 the April 14, 2020 Modified Order and an April 14, 2020 Judgment thereon.
15 This outcome was not a result of SNP bringing an unmeritorious motion. SNP reasonably
16 relied upon the express term included by the parties in Paragraph 26 of the Settlement
17 Agreement that “if any provision or part of this Agreement shall at any time be held invalid or
18 unenforceable, that provision or part thereof shall remain in force and effect to the extent allowed
19 by law and shall be deemed modified to the extent necessary to render it enforceable, preserving
20 to the fullest extent permissible the intent of the parties set forth in this Agreement, and all other
21 provisions of this Agreement shall remain in full force and effect, and be enforceable.” It
22 remains convinced the Court should have left the determination that the Settlement Agreement
23 was enforceable undisturbed, and ought to have reconsidered, if anything, only the terms
24 outlined in the November 4, 2019 Judgment. 3
25
2 Brown’s declaration mischaracterizes the initial result of SNP’s motion to enforce the Settlement
26 Agreement, saying “Kila successfully opposed this motion.” (Brown Dec., 3:5-6, ¶8.)
27 3 Kila offers the Court a quote from transcript of the hearing on SNP’s motion, which in the context
presented, is a clear attempt by Kila to misrepresent a comment made by SNP’s counsel Gary
28 Livaich at the hearing. Mr. Livaich desired to convey to the Court his impression of the practical
result the Court’s determination to find the Settlement Agreement enforceable would have on the
4
SNP’S OPPOSITION TO KILA’S MOTION FOR ATTORNEYS’ FEES
1 What SNP has stated in its pending Motion to Strike is that, irrespective of whether the
2 Court got it right or not, Kila failed to include what it ultimately deemed to be relevant
3 arguments and authorities in its opposition to SNP’s motion. These ultimately proved persuasive
4 to the Court, but not until all parties incurred a substantial amount of additional fees. Had Kila
5 simply made its case more comprehensively in its opposition, presumably the Court would have
6 reached its final determination without the need for protracted motion practice, saving all
7 involved undue time, trouble, and expense. 4
8 Upon SNP’s Motion to Set Aside and Vacate Judgment, the Court subsequently deemed
9 the April 14, 2020 Judgment void, and vacated it pursuant to its June 25, 2020 Ruling on
10 Submitted Matter. 5
11 III. ARGUMENT
12 A. The Court Lacks Jurisdiction to Award Fees.
13 The Court found:
14 This action was dismissed by stipulation of the parties and order thereon,
filed February 14, 2019. A voluntary dismissal of an entire action deprives the
15 court of both subject matter and personal jurisdiction. Sanabria v. Embrey (2001)
92 Cal.App.4th 422, 425. “[W]here the plaintiff has filed a voluntary dismissal of
16 an action …, the court is without jurisdiction to act further …, and any subsequent
17 parties’ incentive to resolve their dispute, but first acknowledged to the Court in apology that as
counsel merely attending and not arguing the motion that an interjection from him was for that
18 reason improper. As Kila presents the transcript quote, it implies Mr. Livaich was arguing to the
Court that it was improper to leave the Settlement Agreement to in force and effect, but that the
19 Court should nonetheless find it enforceable to encourage resolution.
20 4 Kila argues that it was forced to file a motion for new trial and motion to vacate because SNP
would not agree to “mediators” Kila proposed. Brown reports that “Kila sent the names of two
21 qualified mediators to SNP.” (Brown Dec., 3:15-16, ¶11 (emphasis added).) It did not. It suggested
the parties submit their dispute over the purchase price to either a commercial real estate agent,
22 Gordon Hooper, or an appraiser, Ben Johnson, neither of whom were acceptable to SNP due to lack
of training and experience as mediators or in an adjudicatory capacity.
23 5 SNP notes that there does appear to be an erroneous judgment date referenced in the June 25,
2020 Ruling. However, SNP anticipates this oversight will be corrected in due course. SNP also notes
24 that Kila falsely claims that “in multiple instances, SNP unsuccessfully attempted to challenge the
Court’s determination that the Agreement is unenforceable,” citing the filed, but withdrawn motion
25 for reconsideration, SNP’s Notice of Intention to Move to Set Aside and Vacate Judgment, and the
actual Motion to Set Aside and Vacate Judgment – which the Court had made no ruling upon prior
26 to Kila’s filing of its fee motion. (Brown Decl., 5:4-9, ¶18.) In reality, SNP’s motion for
reconsideration was withdrawn prior to any response being required thereto by Kila and was never
27 considered or ruled on by the Court, and the Motion to Vacate, which did not challenge the Court’s
determination that the Settlement Agreement was unenforceable, but was limited to arguing the
28 Court lacked jurisdiction to enter a judgment pursuant to section 664.6, has been granted.
5
SNP’S OPPOSITION TO KILA’S MOTION FOR ATTORNEYS’ FEES
1 orders of the court are simply void.” Paniagua v. Orange County Fire Auth.
(2007) 149 Cal.App.4th 83, 89. An exception exists under Code of Civil
2 Procedure section 664.6, which permits the court to “retain jurisdiction over the
parties to enforce the settlement until performance in full of the terms of the
3 settlement” if requested by the parties, and to “enter judgment pursuant to the
terms of the settlement.” (6.25.20 Ruling on Submitted Matter, p. 4:7-18).
4
And further found:
5
The Judgment entered by the court is not a “judgment pursuant to the
6 terms of the settlement”, as it does more than simply reduce the parties’ stipulated
settlement to a judgment. See Kilpatrick v. Beebe (1990) 219 Cal.App.3d 1527,
7 1529. It therefore exceeds the Court’s limited jurisdiction afforded by Section
664.6. As this action was terminated, the court lacked subject matter jurisdiction
8 over the case except as expressly reserved in conformance with the statute. See
Hagan Engineering, Inc. v. Mills (2003) 115 Cal.App.4th 1004, 1007-1008; Viejo
9 Bancorp, Inc. v. Wood (1989) 217 Cal.App.3d 200, 204. The court finds that the
Judgment was not in conformance with the statute, and is therefore void. (6.25.20
10 Ruling on Submitted Matter p.4-5:25-6).
11 On the basis of the Court’s ultimate entry of the April 14, 2020 Modified Order, Kila now
12 moves for an order awarding it attorney’s fees. However, “[a]bsent a pending lawsuit, a court
13 cannot issue judgments or orders.” (Hagan Engineering, Inc. v. Mills (2003) 115 Cal.App.4th
14 1004, 1007.)
15 The limited subject matter jurisdiction initially retained by the Court following entry of
16 dismissal terminated when the Court’s limited role defined in section 664.6 concluded. Once the
17 Court made the determination, and entered its April 14, 2020 Modified Order thereon,
18 determining the Settlement Agreement is unenforceable and that further performance by the
19 parties is excused, the Court retained no further authority to act pursuant to section 664.6. Hence,
20 the subsequently entered judgment, now vacated, has been found void. And the Court is without
21 jurisdiction to do anything further including entertaining a motion for an award of attorney’s
22 fees. (See Wackeen v. Malis (2002) 97 Cal. App. 4th 429, 441.) (“[N]o matter how meritorious
23 the parties’ respective positions may be on the right of Moran to gain relief from Wackeen
24 pursuant to the attorney’s fees and indemnification provisions of their settlement agreement, the
25 trial court did not have subject matter jurisdiction to consider such positions on their merits
26 because it lost such jurisdiction over the case . . ..”)
27 “[W]hether an action is pending and the court has concurrent jurisdiction to act is an
28 issue which must be determined at the time the court seeks to act.” (Viejo Bancorp, Inc. v. Wood
6
SNP’S OPPOSITION TO KILA’S MOTION FOR ATTORNEYS’ FEES
1 (1989) 217 Cal. App. 3d 200, 206.) “[S]ubject matter jurisdiction cannot be conferred by
2 consent, waiver, or estoppel,” and “the court cannot ‘retain’ jurisdiction it has lost.” (Id. at 207
3 (citing 2 Witkin, Cal. Procedure (3d ed. 1985) Jurisdiction, § 10, pp. 374–375 and Summers v.
4 Superior Court (1959) 53 Cal.2d 295, 298) (“While estoppel may operate to confer jurisdiction
5 over the parties to a controversy, jurisdiction over the subject matter cannot be conferred by
6 consent, waiver or estoppel.”) On this basis alone, Kila’s motion for attorneys’ fees must be
7 denied.
8 In addition, there is no statute conferring jurisdiction upon the Court to entertain a motion
9 for an award of attorney’s fees at this juncture. “[U]nlike statutory attorney’s fees provisions that
10 simply grant fees to prevailing parties, section 1717 does not supply an independent basis for a
11 fee award. Rather, it operates by broadening already-existing contractual fee-shifting
12 provisions.” (Roy Allen Slurry Seal v. Laborers Intern. Union of North America Highway and
13 Street Stripers/Road and Street Slurry Local Union 1184, AFL-CIO (9th Cir. 2001) 241 F.3d
14 1142, 1145 fn.3 (emphasis added).) It is the contract, not any statute, which supplies the basis for
15 the award, and confers upon the Court proper jurisdiction to consider a fee recovery motion.
16 In an action in which a contract has been deemed unenforceable, the fact of the contract’s
17 unenforceability does not generally prevent the Court from considering a fee motion because
18 fees to which a party is authorized to recover pursuant to the contract are recoverable as costs
19 pursuant to CCP sections 1032 and 1033.5(a)(10)(a). Section 1717 then works in conjunction
20 therewith by providing that “[r]easonable attorney’s fees shall be fixed by the court, and shall be
21 an element of the costs of suit.” But in this case, Kila is not a prevailing party entitled to
22 recovery pursuant to section 1032. It did not obtain any relief, monetary or otherwise, in the
23 underlying action, so the discretionary provisions of section 1032 do not come in to play. The
24 action was voluntarily dismissed by all of the parties: SNP, Kila, and TCPUD. The dismissal was
25 not in favor of any party. And the dismissal expressly provided each party would bear its own
26 attorney’s fees and costs in this action. Kila has merely prevailed, in a circuitous manner, in its
27 opposition to a motion pursuant to section 664.6. There is no authority for a court to award fees
28 or costs to a prevailing party on such a motion.
7
SNP’S OPPOSITION TO KILA’S MOTION FOR ATTORNEYS’ FEES
1 B. Even If the Court Had Jurisdiction, Kila Is Not Entitled to the Recovery of Fees
Pursuant to Section 1717.
2
3 If the Court were to determine it somehow has jurisdiction, it would be required to
4 determine whether Kila is entitled to recover fees, the scope of any such entitlement, and the
5 reasonable amount of fees, if any, to be awarded.
6 Kila asserts that “the Court ruled that Kila is the prevailing party in this proceeding.”
7 (Brown Decl., 5:1-2, ¶17.) To the contrary, the Court previously determined only that Kila “is
8 the prevailing party for the purpose of plaintiff’s motion to enforce settlement agreement.” (April
9 14, 2020 Modified Order.)
10 None of the cases cited by Kila involved the application of section 1717 to a party who
11 successfully opposed a motion for entry of judgment pursuant to Section 664.6 on a court’s
12 determination that the parties’ settlement agreement was unenforceable. Nor has SNP been able
13 to identify a single published decision where section 1717 has been applied to support a fee
14 award to any prevailing party when motion made under section 664.6 is denied.
15 Moreover, even if section 1717 were applicable in this case, recovery of fees pursuant to
16 contract and section 1717 are based upon the equitable principle of mutuality of remedy. “Civil
17 Code section 1717 requires reciprocity of remedy in the award of fees in ‘any action on a
18 contract, where the contract specifically provides that attorney’s fees and costs, which are
19 incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing
20 party.’” (J.B.B. Inv. Partners Ltd. v. Fair (2019) 37 Cal. App. 5th 1, 21, as modified (July 1,
21 2019), review denied (Oct. 9, 2019).)
22 “Under Civil Code section 1717, the prevailing party is entitled to attorney’s fees even
23 when it wins on the grounds that the contract is inapplicable, invalid, unenforceable or non-
24 existent,” but this is only “so long as the party pursuing the lawsuit would have been entitled to
25 attorney’s fees had it prevailed.” (Rainier Nat'l Bank v. Bodily (1991) 232 Cal. App. 3d 83, 86.)
26 “The California Supreme Court has determined that one may only recover attorney’s fees
27 pursuant to section 1717 if one ‘would have been liable’ for such fees had the opposing party
28 prevailed. (Leach v. Home Sav. & Loan Assn. (1986) 185 Cal. App. 3d 1295, 1306–07 (quoting
8
SNP’S OPPOSITION TO KILA’S MOTION FOR ATTORNEYS’ FEES
1 Reynolds Metals Co. v. Alperson (1979) 25 Cal. 3d 124, 129); see also J.B.B. Inv. Partners Ltd.
2 v. Fair (2019) 37 Cal. App. 5th 1, 21, as modified (July 1, 2019), review denied (Oct. 9, 2019)
3 and Santisas v. Goodin (1998) 17 Cal.4th 599, 611.) The California Supreme Court’s holding in
4 “Reynolds and section 1717 require that the party claiming a right to receive fees establish that
5 the opposing party actually would have been entitled to receive them if he or she had been the
6 prevailing party.” (Id.)
7 In this case, we know that when SNP was previously successful in obtaining a
8 determination that the Settlement Agreement was enforceable and that SNP was entitled to a
9 judgment pursuant to its terms, the Court deemed it not entitled to receive fees. (p.4:19-20).
10 Therefore, Kila cannot make the requisite showing to support an award of fees where it has
11 prevailed in obtaining a different determination as to the same issue.
12 C. Even If Kila Were Entitled to Some Recovery, Its Prevailing Party Status Is
Limited, and the Scope of Any Recovery It Might Be Entitled to Would Have to
13 Be Limited Accordingly.
14 SNP brought a single successful motion. Its filing of the Motion to Enforce Settlement
15 Agreement was not the initiation of some broader proceeding that would justify an award of fees
16 related to any and every expense incurred by Kila in its efforts to extricate itself from the
17 Settlement Agreement, which Kila itself had brought its own motion to enforce. Even if Kila
18 were to properly be treated as a prevailing party, it prevailed on the Kila’s motion to vacate the
19 November 4, 2019 Judgment, which resulted in the Court’s entry of the April 14, 2020 Modified
20 Order.
21 Kila’s effort to be treated as a prevailing party more broadly, claiming to be “the
22 prevailing party on the motions and proceeding relating to the interpretation and enforcement of
23 the Agreement, including on the ultimate issue of enforceability of the Agreement” is improper.
24 This scope of recovery is simply not supported by Paragraph 11 of the Settlement Agreement,
25 which refers to the award of fees to a prevailing party when a “motion, suit, or proceeding is
26 commenced,” in the context of section 664.6’s provision for relief by filing of a motion, and not
27 the initiation of a suit or proceeding.
28
9
SNP’S OPPOSITION TO KILA’S MOTION FOR ATTORNEYS’ FEES
1 Furthermore, when SNP’s motion to enforce was initially granted and judgment entered
2 thereon, the Court rejected SNP’s request for an award of any fees, calling the result “mixed”
3 (presumably because the Court declined to make a requested factual finding that Justice
4 Morrison had been deemed a mutually agreeable mediator, which the Court declined to do.) (See
5 9/2/19 Ruling on Submitted Matter.) So, even if the Court were to evaluate the entire course of
6 the motion practice following SNP’s filing of the Motion to Enforce, Kila’s results would
7 likewise have to be deemed mixed, at best. Kila first filed an unsuccessful opposition. Kila then
8 filed an unsuccessful objection to judgment. (See 11/4/19 Ruling on Objections to Proposed
9 Judgment.) Kila then filed a successful motion to vacate the judgment, but also an unsuccessful
10 (moot) motion for new trial. Kila then prepared and filed a modified order and judgment, both of
11 which were rejected by the Court in favor of entry of the Court’s own modified order and new
12 judgment. And the Court has now granted SNP’s motion to vacate the judgment it entered in
13 Kila’s favor.
14 The fact that Kila lost before it won, and then engaged in so many ineffective and
15 unsuccessful efforts to achieve its objectives, makes it impossible for the Court to conclude Kila
16 achieved the “unqualified victory” it claims. Therefore, if the court is inclined to find Kila is
17 entitled to fees, it should award a fraction of what Kila claims it is entitled to.
18 D. The Amount of Any Fee Recovery Should Be Limited to an Amount
Commensurate with the Award Previously Made to SNP for Opposing Kila’s
19 Motion to Enforce the Settlement Agreement.
20
• Kila’s original Motion to Enforce – denied. SNP sought $4,070 in fees – awarded $1,375.
21
• SNP Motion to Enforce – Granted. SNP sought $8,287.50 in fees – Denied. Kila’s
22 sought $9,452 as reasonable fees in opposition.
23 • Now Kila seeks $144,452.50 in fees and costs.
24 • That amount is 15 times more than Kila originally sought.
25 • That amount is 17 times more than SNP sought.
26 • That amount is more that 105 times the amount SNP was awarded for
successfully opposing Kila’s motion.
27
28
10
SNP’S OPPOSITION TO KILA’S MOTION FOR ATTORNEYS’ FEES
1 Kila’s task in opposing SNP’s motion was not magnitudes more difficult than SNP’s task
2 in opposing Kila’s. Kila itself continues to argue that SNP brought fundamentally the same
3 motion to enforce Kila did. The terms of the Settlement Agreement had not changed. The facts
4 and circumstances of the case had not changed. The law had not changed. Kila simply did a poor
5 job of its opposition. It failed to prevail. Then it was forced to make subsequent filings to try to
6 change the outcome. In so doing, it made inefficient decisions, and it grossly overstaffed and
7 over-litigated at every stage of the way. 6 An award in an amount any greater than, at the very
8 most, what Kila originally sought to be awarded would be inappropriate. If it is to recover at all,
9 recovery should be limited to some amount commensurate with the fee award to SNP when it
10 was previously awarded fees.
11 E. Any Net Award of Fees the Court Might Consider Granting Kila Is Unsupported
By the Fee Records Supplied By Kila, Which Make It Impossible for the Court
12 to Credibly Assess Time Actually Reasonably Expended and Fees Incurred By
Kila.
13
14 Kila’s motion requests $22,425 in fees charged by Greg Gatto. Mr. Gatto declares he is
15 an attorney for Kila in the dual capacity of counsel for its development project and litigation
16 counsel. Other than Mr. Gatto’s name being included in the pleadings, he has never appeared.
17 He is not the signator on any pleading. A review of his declaration clearly shows his efforts were
18 duplicative of Mr. Brown’s time. There is no showing Mr. Gatto’s time was reasonable or
19 necessary.
20 • Invoice 286 has no entries related to the motion to vacate.
21 • Invoice 302 is not related to the motion to vacate and has an entry regarding
eminent domain.
22
• Invoice 321 has entries related to “leasing issues”.
23
6 Kila had two separate law firms engaged in this matter. Stoel Rives staffed the matter with four
24 attorneys and a paralegal. Kila’s lead counsel, and highest rat
Preview
1 GARY LIVAICH, SBN 084186 07/13/2020 BRIAN MANNING, SBN 241512 2 KRISTEN RENFRO, SBN 259162 BENJAMIN TAGERT, SBN 330242 3 DESMOND, NOLAN, LIVAICH & CUNNINGHAM 15th & S Building 4 1830 15th Street Sacramento, California 95811 5 Telephone: (916) 443.2051 Facsmile: (916) 443.2651 6 Attorneys for Plaintiff and Cross-Defendant 7 Sierra Northwest Properties, LLC 8 9 SUPERIOR COURT OF CALIFORNIA 10 COUNTY OF PLACER 11 SIERRA NORTHWEST PROPERTIES, LLC, Case No. SCV0041099 12 Plaintiff, PLAINTIFF AND CROSS-DEFENDANT SNP’S OPPOSITION TO KILA TAHOE 13 v. LLC’S MOTION FOR ATTORNEYS’ FEES 14 KILA TAHOE, LLC; ALL PERSONS UNKNOWN, claiming any legal or equitable Telephone Appearance 15 right, title, estate, lien, or interest in or to the real property described in the complaint Date: July 24, 2020 16 adverse to plaintiffs’ title, or any cloud on Time: 8:30 a.m. plaintiffs’ title thereto; DOES 1 through 100, Department: 31 17 inclusive, 18 Defendants. Action Filed: May 2, 2018 ______________________________________ 19 AND RELATED CROSS-ACTION. 20 21 22 23 24 25 26 27 28 SNP’S OPPOSITION TO KILA’S MOTION FOR ATTORNEYS’ FEES 1 TABLE OF CONTENTS 2 3 I. INTRODUCTION & SUMMARY OF ARGUMENT...................................................... 1 4 II. STATEMENT OF FACTS......................................................................................................... 2 5 A. Litigation Background........................................................................................... 2 6 B. The Settlement Agreement and Don Person’s Refusal to Adjudicate Purchase Price Due to Undisclosed Social Contacts 7 with Kila’s Counsel.............................................................................................. 2 8 C. Kila’s Subsequent Filings…………………………............................................. 4 9 III. ARGUMENT..................................................................................................................... 5 10 A. The Court Lacks Jurisdiction to Award Fees……………………………………. 5 11 B. Even If the Court Had Jurisdiction, Kila Is Not Entitled 12 to the Recovery of Fees Pursuant to Section 1717......................................................................................................................... 8 13 C. Even If Kila Were Entitled to Some Recovery, Its 14 Prevailing Party Status Is Limited, and the Scope of Any Recovery It Might Be Entitled to Would Have 15 to Be Limited Accordingly …………………….................................................... 9 16 D. The Amount of Any Fee Recovery Should Be Limited to an Amount Commensurate with the Award Previously 17 Made to SNP for Opposing Kila’s Motion to Enforce the Settlement Agreement………………………………………………………..…. 10 18 E. Any Net Award of Fees the Court Might Consider Granting 19 Kila Is Unsupported By the Fee Records Supplied By Kila, Which Make It Impossible for the Court to Credibly Assess Time Actually 20 Reasonably Expended and Fees Incurred By Kila……………………………… 11 21 F. Costs and Expenses Claimed in Kila’s Improper Cost Bill should Not Be Awarded Pursuant to Kila’s Motion……………………………………. 13 22 23 IV. CONCLUSION .................................................................................................................14 24 25 26 27 28 i SNP’S OPPOSITION TO KILA’S MOTION FOR ATTORNEYS’ FEES 1 TABLE OF AUTHORITIES 2 Page(s) 3 CASES 4 Hagan Engineering, Inc. v. Mills (2003) 115 Cal.App.4th 1004.........................................................................................................6 5 J.B.B. Inv. Partners Ltd. v. Fair 6 (2019) 37 Cal. App. 5th 1...............................................................................................8, 9 7 Leach v. Home Sav. & Loan Assn. (1986) 185 Cal. App. 3d 1295............................................................................................8 8 Rainier Nat'l Bank v. Bodily 9 (1991) 232 Cal. App. 3d 83................................................................................................8 10 Santisas v. Goodin (1998) 17 Cal.4th 599.........................................................................................................9 11 Summers v. Superior Court 12 (1959) 53 Cal.2d 295..........................................................................................................7 13 Viejo Bancorp, Inc. v. Wood (1989) 217 Cal. App. 3d 200..........................................................................................6, 7 14 Wackeen v. Malis 15 (2002) 97 Cal. App. 4th 429...............................................................................................6 16 FEDERAL CASES 17 Roy Allen Slurry Seal v. Laborers Intern. 18 Union of North America Highway and Street Stripers/Road and Street Slurry Local Union 1184, AFL-CIO 19 (9th Cir. 2001) 241 F.3d 1142...........................................................................................7 20 OTHER AUTHORITIES 21 2 Witkin, Cal. Procedure (3d ed. 1985) Jurisdiction, § 10, pp. 374...........................................................................7 22 STATUTES 23 CCP section 664.6 ..............................................................................................................6, 7, 8, 9 24 CCP section 1717................................................................................................................1, 7, 8, 9 25 CCP section 1032.......................................................................................................................1, 7 26 CCP section 1033.5....................................................................................................................1, 7 27 28 ii SNP’S OPPOSITION TO KILA’S MOTION FOR ATTORNEYS’ FEES 1 I. INTRODUCTION & SUMMARY OF ARGUMENT 2 Every motion for attorney’s fees has two basic issues: 1. Entitlement to reimbursement of 3 attorney’s fees and, 2. the amount. Entitlement to fees is either based on statute or contract and 4 the amount must be reasonable. (CCP section 1033.5). Here, Kila prevailed on a motion to 5 vacate judgment. It did not prevail in the action, proceeding, or any other motion. 6 In consideration of its successful motion to vacate, Kila seeks the recovery of fees and 7 expenses in the amount of $144,462.50. Kila is not entitled to a recovery of attorney’s fees, nor 8 is the amount it seeks reasonable. 9 Subsequent to the filing of Kila’s motion to vacate judgment and enter a new judgment, 10 and the filing of the present motion, this Court ruled that it entered the new judgment without 11 jurisdiction and is void. Without the requisite jurisdiction, this Court does not presently have the 12 power or authority to consider Kila’s motion let alone grant it. Arguendo, if the Court were to 13 entertain Kila’s motion, California Code of Civil Procedure (“CCP”) section 1032 and California 14 Civil Code (“CC”) section 1717 do not operate to supply a statutory basis for the recovery of 15 attorney’s fees. 16 In an abundance of caution, SNP also offers that paragraph 11 of the Settlement 17 Agreement would only serve as a basis of a limited recovery. Kila was unsuccessful in its 18 opposition to SNP’s Motion to Enforce the Settlement Agreement. Kila was only successful in 19 its subsequent Motion to Vacate And Enter A New And Different Judgment, and that was only a 20 partial victory since the new Judgment was subsequently vacated as void for lack of jurisdiction. 21 It was not successful in the underlying action. Said action was dismissed by mutual consent with 22 each party bearing its own fees and costs. 23 In the unlikely event the Court were to consider Kila was entitled to recovery of fees, it 24 should decline to do so, or drastically reduce the amount claimed because Kila has failed to 25 supply sufficient facts, evidence or supporting billing records to establish the fees were necessary 26 or reasonable. 27 /// 28 /// 1 SNP’S OPPOSITION TO KILA’S MOTION FOR ATTORNEYS’ FEES 1 II. STATEMENT OF FACTS 2 A. Litigation Background 3 Kila continues to tell a tale that has never been grounded in fact – that SNP sought to and 4 succeeded in delaying construction of its Tahoe City Lodge project. The reality is that SNP’s suit 5 did not prevent Kila from proceeding with its project. SNP did not cause Kila to lose a building 6 season. Kila is the only one who has taken actions that have resulted in the project remaining 7 unbuilt. SNP never obtained an injunction preventing Kila’s project from moving forward. Yet 8 other than demolishing dilapidated old structures on the property, Kila has taken no action in 9 furtherance of construction of the project. There is no showing that Kila procured the necessary 10 permits for the grading or construction. Kila voluntarily bound itself not to proceed with vertical 11 construction, at its own proposal, via the Settlement Agreement. And now, even after the Court 12 ruled the Settlement Agreement is unenforceable, Kila continues to try to make SNP the 13 scapegoat for what appears much more likely to be Kila’s own financial and/or other 14 mismanagement of its project – exemplified by its foolhardy approach to resolving what is at its 15 core a relatively simple easement dispute with SNP. 16 B. The Settlement Agreement and Don Person’s Refusal to Adjudicate Purchase Price Due to Undisclosed Social Contacts with Kila’s Counsel 17 18 The parties went to a binding mediation before Donald Person. And he refused to act 19 because of prior social contacts with Kila’s counsel, Mike Brown – a fact Kila has repeatedly 20 tried to downplay by inaccurately reporting to the Court that Mr. Person’s conflicts were due to 21 relations with counsel for both parties. 22 Mr. Person revealed at the beginning of the mediation that he dined at Mr. Brown’s 23 mother’s home and discussed plans for hiking together in the Sierras. (Livaich Decl., ¶ 21.) 24 Kila now seeks to benefit from its own wrongdoing in bringing about the demise of the 25 Settlement Agreement. 26 The Court ruled the Settlement Agreement was unenforceable since it determined that 27 Person acting as a mediator was a material term of the Settlement Agreement. This finding was 28 in spite of the fact that both parties indicated by their subsequent conduct Mr. Person was not 2 SNP’S OPPOSITION TO KILA’S MOTION FOR ATTORNEYS’ FEES 1 material to the deal. Kila itself filed a motion seeking the appointment of an alternative mediator 2 when the parties differed in their preferred alternative mediator. It did not insist on Person and 3 neither did SNP. SNP preferred Retired Judge Robert Hight and Kila preferred Retired Justice 4 Fred K. Morrison. SNP conceded shortly thereafter to Morrison, but Kila changed position so 5 that the case would not be resolved. Kila offered at least three other alternative mediators, two of 6 which were not mediators at all. One was an appraiser; the other was a real estate broker. SNP 7 suggested several mediator options. Kila rejected them all. Clearly Mr. Person was not material 8 to the settlement. And what is also clear is that the parties would have benefitted from the Court 9 providing assistance to have a mediator selected or appointed. 10 Kila further sabotaged SNP’s efforts to bring Mr. Person back into the process, refusing 11 to consider terms and conditions Mr. Person would require to be comfortable acting in an 12 adjudicative capacity. And Kila has the gall to baselessly accuse SNP’s counsel of 13 misrepresenting Mr. Person’s consideration of the matter, in an attempt to contort good faith last 14 ditch efforts on SNP’s part to try to salvage the Settlement Agreement 1. 15 Good faith and fair dealing were lacking on Kila’s part. That is why this case is not 16 resolved. SNP always tried, in good faith, to preserve the Settlement Agreement, to obtain the 17 benefit of their bargain, to wit: the sale and purchase of the building owned by SNP. 18 SNP sought entry of Judgment on the terms of the parties’ Settlement Agreement, as 19 deemed modified by operation of the severability clause contained in Paragraph 26 of the 20 Settlement Agreement, and a determination that the parties had identified a new mutually 21 agreeable mediator based on SNP’s reasonable concession to proceed Justice Morrison shortly 22 after the denial of Kila’s motion. 23 24 1 Brown accuses SNP’s counsel of misrepresenting communications with Donald Person. (See Brown Dec., 4:5-25, ¶¶14-16.) In so doing, he distorts the facts, which were at all times reported to the 25 Court in good faith, that SNP’s counsel had communicated with Mr. Person, and that he had indicated he would consider overseeing and adjudicating the purchase price, on terms acceptable to 26 him, if the parties could come to agreement on them. Mr. Person ultimately withdrew his offer to wade back into the waters when it became clear that the parties were unable to do this. This was 27 precipitated by Kila’s rejection of any deviation in the binding mediation procedure and to employ more formal aspects of binding arbitration. SNP properly promptly withdrew its motion for 28 reconsideration upon Mr. Person’s withdrawal. 3 SNP’S OPPOSITION TO KILA’S MOTION FOR ATTORNEYS’ FEES 1 SNP presented a reasonable interpretation of the Settlement Agreement, and made a 2 persuasive case for its enforcement. Kila unsuccessfully opposed SNP’s motion. The Court 3 entered a September 2, 2019 Ruling on Submitted Matter finding the Settlement Agreement 4 enforceable, and entered a November 4, 2019 Judgment pursuant to its terms. 2 5 C. Kila’s Subsequent Filings 6 Despite no change in relevant law or facts, Kila chose to undertake multiple efforts 7 following the Court’s finding that the Settlement Agreement was enforceable to persuade the 8 Court not to enter the Judgment and to vacate the Judgment and modify its order as to 9 enforceability. And we now know that Kila was so stubbornly set on extricating itself from its 10 obligations under the Settlement Agreement that apparently it was willing to incur in excess of 11 $144,000 to change the Court’s mind. 12 Kila was ultimately successful in its mission. It did convince the Court to vacate the 13 September 2, 2019 Ruling on Submitted Matter and the November 4, 2019 Judgment and enter 14 the April 14, 2020 Modified Order and an April 14, 2020 Judgment thereon. 15 This outcome was not a result of SNP bringing an unmeritorious motion. SNP reasonably 16 relied upon the express term included by the parties in Paragraph 26 of the Settlement 17 Agreement that “if any provision or part of this Agreement shall at any time be held invalid or 18 unenforceable, that provision or part thereof shall remain in force and effect to the extent allowed 19 by law and shall be deemed modified to the extent necessary to render it enforceable, preserving 20 to the fullest extent permissible the intent of the parties set forth in this Agreement, and all other 21 provisions of this Agreement shall remain in full force and effect, and be enforceable.” It 22 remains convinced the Court should have left the determination that the Settlement Agreement 23 was enforceable undisturbed, and ought to have reconsidered, if anything, only the terms 24 outlined in the November 4, 2019 Judgment. 3 25 2 Brown’s declaration mischaracterizes the initial result of SNP’s motion to enforce the Settlement 26 Agreement, saying “Kila successfully opposed this motion.” (Brown Dec., 3:5-6, ¶8.) 27 3 Kila offers the Court a quote from transcript of the hearing on SNP’s motion, which in the context presented, is a clear attempt by Kila to misrepresent a comment made by SNP’s counsel Gary 28 Livaich at the hearing. Mr. Livaich desired to convey to the Court his impression of the practical result the Court’s determination to find the Settlement Agreement enforceable would have on the 4 SNP’S OPPOSITION TO KILA’S MOTION FOR ATTORNEYS’ FEES 1 What SNP has stated in its pending Motion to Strike is that, irrespective of whether the 2 Court got it right or not, Kila failed to include what it ultimately deemed to be relevant 3 arguments and authorities in its opposition to SNP’s motion. These ultimately proved persuasive 4 to the Court, but not until all parties incurred a substantial amount of additional fees. Had Kila 5 simply made its case more comprehensively in its opposition, presumably the Court would have 6 reached its final determination without the need for protracted motion practice, saving all 7 involved undue time, trouble, and expense. 4 8 Upon SNP’s Motion to Set Aside and Vacate Judgment, the Court subsequently deemed 9 the April 14, 2020 Judgment void, and vacated it pursuant to its June 25, 2020 Ruling on 10 Submitted Matter. 5 11 III. ARGUMENT 12 A. The Court Lacks Jurisdiction to Award Fees. 13 The Court found: 14 This action was dismissed by stipulation of the parties and order thereon, filed February 14, 2019. A voluntary dismissal of an entire action deprives the 15 court of both subject matter and personal jurisdiction. Sanabria v. Embrey (2001) 92 Cal.App.4th 422, 425. “[W]here the plaintiff has filed a voluntary dismissal of 16 an action …, the court is without jurisdiction to act further …, and any subsequent 17 parties’ incentive to resolve their dispute, but first acknowledged to the Court in apology that as counsel merely attending and not arguing the motion that an interjection from him was for that 18 reason improper. As Kila presents the transcript quote, it implies Mr. Livaich was arguing to the Court that it was improper to leave the Settlement Agreement to in force and effect, but that the 19 Court should nonetheless find it enforceable to encourage resolution. 20 4 Kila argues that it was forced to file a motion for new trial and motion to vacate because SNP would not agree to “mediators” Kila proposed. Brown reports that “Kila sent the names of two 21 qualified mediators to SNP.” (Brown Dec., 3:15-16, ¶11 (emphasis added).) It did not. It suggested the parties submit their dispute over the purchase price to either a commercial real estate agent, 22 Gordon Hooper, or an appraiser, Ben Johnson, neither of whom were acceptable to SNP due to lack of training and experience as mediators or in an adjudicatory capacity. 23 5 SNP notes that there does appear to be an erroneous judgment date referenced in the June 25, 2020 Ruling. However, SNP anticipates this oversight will be corrected in due course. SNP also notes 24 that Kila falsely claims that “in multiple instances, SNP unsuccessfully attempted to challenge the Court’s determination that the Agreement is unenforceable,” citing the filed, but withdrawn motion 25 for reconsideration, SNP’s Notice of Intention to Move to Set Aside and Vacate Judgment, and the actual Motion to Set Aside and Vacate Judgment – which the Court had made no ruling upon prior 26 to Kila’s filing of its fee motion. (Brown Decl., 5:4-9, ¶18.) In reality, SNP’s motion for reconsideration was withdrawn prior to any response being required thereto by Kila and was never 27 considered or ruled on by the Court, and the Motion to Vacate, which did not challenge the Court’s determination that the Settlement Agreement was unenforceable, but was limited to arguing the 28 Court lacked jurisdiction to enter a judgment pursuant to section 664.6, has been granted. 5 SNP’S OPPOSITION TO KILA’S MOTION FOR ATTORNEYS’ FEES 1 orders of the court are simply void.” Paniagua v. Orange County Fire Auth. (2007) 149 Cal.App.4th 83, 89. An exception exists under Code of Civil 2 Procedure section 664.6, which permits the court to “retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the 3 settlement” if requested by the parties, and to “enter judgment pursuant to the terms of the settlement.” (6.25.20 Ruling on Submitted Matter, p. 4:7-18). 4 And further found: 5 The Judgment entered by the court is not a “judgment pursuant to the 6 terms of the settlement”, as it does more than simply reduce the parties’ stipulated settlement to a judgment. See Kilpatrick v. Beebe (1990) 219 Cal.App.3d 1527, 7 1529. It therefore exceeds the Court’s limited jurisdiction afforded by Section 664.6. As this action was terminated, the court lacked subject matter jurisdiction 8 over the case except as expressly reserved in conformance with the statute. See Hagan Engineering, Inc. v. Mills (2003) 115 Cal.App.4th 1004, 1007-1008; Viejo 9 Bancorp, Inc. v. Wood (1989) 217 Cal.App.3d 200, 204. The court finds that the Judgment was not in conformance with the statute, and is therefore void. (6.25.20 10 Ruling on Submitted Matter p.4-5:25-6). 11 On the basis of the Court’s ultimate entry of the April 14, 2020 Modified Order, Kila now 12 moves for an order awarding it attorney’s fees. However, “[a]bsent a pending lawsuit, a court 13 cannot issue judgments or orders.” (Hagan Engineering, Inc. v. Mills (2003) 115 Cal.App.4th 14 1004, 1007.) 15 The limited subject matter jurisdiction initially retained by the Court following entry of 16 dismissal terminated when the Court’s limited role defined in section 664.6 concluded. Once the 17 Court made the determination, and entered its April 14, 2020 Modified Order thereon, 18 determining the Settlement Agreement is unenforceable and that further performance by the 19 parties is excused, the Court retained no further authority to act pursuant to section 664.6. Hence, 20 the subsequently entered judgment, now vacated, has been found void. And the Court is without 21 jurisdiction to do anything further including entertaining a motion for an award of attorney’s 22 fees. (See Wackeen v. Malis (2002) 97 Cal. App. 4th 429, 441.) (“[N]o matter how meritorious 23 the parties’ respective positions may be on the right of Moran to gain relief from Wackeen 24 pursuant to the attorney’s fees and indemnification provisions of their settlement agreement, the 25 trial court did not have subject matter jurisdiction to consider such positions on their merits 26 because it lost such jurisdiction over the case . . ..”) 27 “[W]hether an action is pending and the court has concurrent jurisdiction to act is an 28 issue which must be determined at the time the court seeks to act.” (Viejo Bancorp, Inc. v. Wood 6 SNP’S OPPOSITION TO KILA’S MOTION FOR ATTORNEYS’ FEES 1 (1989) 217 Cal. App. 3d 200, 206.) “[S]ubject matter jurisdiction cannot be conferred by 2 consent, waiver, or estoppel,” and “the court cannot ‘retain’ jurisdiction it has lost.” (Id. at 207 3 (citing 2 Witkin, Cal. Procedure (3d ed. 1985) Jurisdiction, § 10, pp. 374–375 and Summers v. 4 Superior Court (1959) 53 Cal.2d 295, 298) (“While estoppel may operate to confer jurisdiction 5 over the parties to a controversy, jurisdiction over the subject matter cannot be conferred by 6 consent, waiver or estoppel.”) On this basis alone, Kila’s motion for attorneys’ fees must be 7 denied. 8 In addition, there is no statute conferring jurisdiction upon the Court to entertain a motion 9 for an award of attorney’s fees at this juncture. “[U]nlike statutory attorney’s fees provisions that 10 simply grant fees to prevailing parties, section 1717 does not supply an independent basis for a 11 fee award. Rather, it operates by broadening already-existing contractual fee-shifting 12 provisions.” (Roy Allen Slurry Seal v. Laborers Intern. Union of North America Highway and 13 Street Stripers/Road and Street Slurry Local Union 1184, AFL-CIO (9th Cir. 2001) 241 F.3d 14 1142, 1145 fn.3 (emphasis added).) It is the contract, not any statute, which supplies the basis for 15 the award, and confers upon the Court proper jurisdiction to consider a fee recovery motion. 16 In an action in which a contract has been deemed unenforceable, the fact of the contract’s 17 unenforceability does not generally prevent the Court from considering a fee motion because 18 fees to which a party is authorized to recover pursuant to the contract are recoverable as costs 19 pursuant to CCP sections 1032 and 1033.5(a)(10)(a). Section 1717 then works in conjunction 20 therewith by providing that “[r]easonable attorney’s fees shall be fixed by the court, and shall be 21 an element of the costs of suit.” But in this case, Kila is not a prevailing party entitled to 22 recovery pursuant to section 1032. It did not obtain any relief, monetary or otherwise, in the 23 underlying action, so the discretionary provisions of section 1032 do not come in to play. The 24 action was voluntarily dismissed by all of the parties: SNP, Kila, and TCPUD. The dismissal was 25 not in favor of any party. And the dismissal expressly provided each party would bear its own 26 attorney’s fees and costs in this action. Kila has merely prevailed, in a circuitous manner, in its 27 opposition to a motion pursuant to section 664.6. There is no authority for a court to award fees 28 or costs to a prevailing party on such a motion. 7 SNP’S OPPOSITION TO KILA’S MOTION FOR ATTORNEYS’ FEES 1 B. Even If the Court Had Jurisdiction, Kila Is Not Entitled to the Recovery of Fees Pursuant to Section 1717. 2 3 If the Court were to determine it somehow has jurisdiction, it would be required to 4 determine whether Kila is entitled to recover fees, the scope of any such entitlement, and the 5 reasonable amount of fees, if any, to be awarded. 6 Kila asserts that “the Court ruled that Kila is the prevailing party in this proceeding.” 7 (Brown Decl., 5:1-2, ¶17.) To the contrary, the Court previously determined only that Kila “is 8 the prevailing party for the purpose of plaintiff’s motion to enforce settlement agreement.” (April 9 14, 2020 Modified Order.) 10 None of the cases cited by Kila involved the application of section 1717 to a party who 11 successfully opposed a motion for entry of judgment pursuant to Section 664.6 on a court’s 12 determination that the parties’ settlement agreement was unenforceable. Nor has SNP been able 13 to identify a single published decision where section 1717 has been applied to support a fee 14 award to any prevailing party when motion made under section 664.6 is denied. 15 Moreover, even if section 1717 were applicable in this case, recovery of fees pursuant to 16 contract and section 1717 are based upon the equitable principle of mutuality of remedy. “Civil 17 Code section 1717 requires reciprocity of remedy in the award of fees in ‘any action on a 18 contract, where the contract specifically provides that attorney’s fees and costs, which are 19 incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing 20 party.’” (J.B.B. Inv. Partners Ltd. v. Fair (2019) 37 Cal. App. 5th 1, 21, as modified (July 1, 21 2019), review denied (Oct. 9, 2019).) 22 “Under Civil Code section 1717, the prevailing party is entitled to attorney’s fees even 23 when it wins on the grounds that the contract is inapplicable, invalid, unenforceable or non- 24 existent,” but this is only “so long as the party pursuing the lawsuit would have been entitled to 25 attorney’s fees had it prevailed.” (Rainier Nat'l Bank v. Bodily (1991) 232 Cal. App. 3d 83, 86.) 26 “The California Supreme Court has determined that one may only recover attorney’s fees 27 pursuant to section 1717 if one ‘would have been liable’ for such fees had the opposing party 28 prevailed. (Leach v. Home Sav. & Loan Assn. (1986) 185 Cal. App. 3d 1295, 1306–07 (quoting 8 SNP’S OPPOSITION TO KILA’S MOTION FOR ATTORNEYS’ FEES 1 Reynolds Metals Co. v. Alperson (1979) 25 Cal. 3d 124, 129); see also J.B.B. Inv. Partners Ltd. 2 v. Fair (2019) 37 Cal. App. 5th 1, 21, as modified (July 1, 2019), review denied (Oct. 9, 2019) 3 and Santisas v. Goodin (1998) 17 Cal.4th 599, 611.) The California Supreme Court’s holding in 4 “Reynolds and section 1717 require that the party claiming a right to receive fees establish that 5 the opposing party actually would have been entitled to receive them if he or she had been the 6 prevailing party.” (Id.) 7 In this case, we know that when SNP was previously successful in obtaining a 8 determination that the Settlement Agreement was enforceable and that SNP was entitled to a 9 judgment pursuant to its terms, the Court deemed it not entitled to receive fees. (p.4:19-20). 10 Therefore, Kila cannot make the requisite showing to support an award of fees where it has 11 prevailed in obtaining a different determination as to the same issue. 12 C. Even If Kila Were Entitled to Some Recovery, Its Prevailing Party Status Is Limited, and the Scope of Any Recovery It Might Be Entitled to Would Have to 13 Be Limited Accordingly. 14 SNP brought a single successful motion. Its filing of the Motion to Enforce Settlement 15 Agreement was not the initiation of some broader proceeding that would justify an award of fees 16 related to any and every expense incurred by Kila in its efforts to extricate itself from the 17 Settlement Agreement, which Kila itself had brought its own motion to enforce. Even if Kila 18 were to properly be treated as a prevailing party, it prevailed on the Kila’s motion to vacate the 19 November 4, 2019 Judgment, which resulted in the Court’s entry of the April 14, 2020 Modified 20 Order. 21 Kila’s effort to be treated as a prevailing party more broadly, claiming to be “the 22 prevailing party on the motions and proceeding relating to the interpretation and enforcement of 23 the Agreement, including on the ultimate issue of enforceability of the Agreement” is improper. 24 This scope of recovery is simply not supported by Paragraph 11 of the Settlement Agreement, 25 which refers to the award of fees to a prevailing party when a “motion, suit, or proceeding is 26 commenced,” in the context of section 664.6’s provision for relief by filing of a motion, and not 27 the initiation of a suit or proceeding. 28 9 SNP’S OPPOSITION TO KILA’S MOTION FOR ATTORNEYS’ FEES 1 Furthermore, when SNP’s motion to enforce was initially granted and judgment entered 2 thereon, the Court rejected SNP’s request for an award of any fees, calling the result “mixed” 3 (presumably because the Court declined to make a requested factual finding that Justice 4 Morrison had been deemed a mutually agreeable mediator, which the Court declined to do.) (See 5 9/2/19 Ruling on Submitted Matter.) So, even if the Court were to evaluate the entire course of 6 the motion practice following SNP’s filing of the Motion to Enforce, Kila’s results would 7 likewise have to be deemed mixed, at best. Kila first filed an unsuccessful opposition. Kila then 8 filed an unsuccessful objection to judgment. (See 11/4/19 Ruling on Objections to Proposed 9 Judgment.) Kila then filed a successful motion to vacate the judgment, but also an unsuccessful 10 (moot) motion for new trial. Kila then prepared and filed a modified order and judgment, both of 11 which were rejected by the Court in favor of entry of the Court’s own modified order and new 12 judgment. And the Court has now granted SNP’s motion to vacate the judgment it entered in 13 Kila’s favor. 14 The fact that Kila lost before it won, and then engaged in so many ineffective and 15 unsuccessful efforts to achieve its objectives, makes it impossible for the Court to conclude Kila 16 achieved the “unqualified victory” it claims. Therefore, if the court is inclined to find Kila is 17 entitled to fees, it should award a fraction of what Kila claims it is entitled to. 18 D. The Amount of Any Fee Recovery Should Be Limited to an Amount Commensurate with the Award Previously Made to SNP for Opposing Kila’s 19 Motion to Enforce the Settlement Agreement. 20 • Kila’s original Motion to Enforce – denied. SNP sought $4,070 in fees – awarded $1,375. 21 • SNP Motion to Enforce – Granted. SNP sought $8,287.50 in fees – Denied. Kila’s 22 sought $9,452 as reasonable fees in opposition. 23 • Now Kila seeks $144,452.50 in fees and costs. 24 • That amount is 15 times more than Kila originally sought. 25 • That amount is 17 times more than SNP sought. 26 • That amount is more that 105 times the amount SNP was awarded for successfully opposing Kila’s motion. 27 28 10 SNP’S OPPOSITION TO KILA’S MOTION FOR ATTORNEYS’ FEES 1 Kila’s task in opposing SNP’s motion was not magnitudes more difficult than SNP’s task 2 in opposing Kila’s. Kila itself continues to argue that SNP brought fundamentally the same 3 motion to enforce Kila did. The terms of the Settlement Agreement had not changed. The facts 4 and circumstances of the case had not changed. The law had not changed. Kila simply did a poor 5 job of its opposition. It failed to prevail. Then it was forced to make subsequent filings to try to 6 change the outcome. In so doing, it made inefficient decisions, and it grossly overstaffed and 7 over-litigated at every stage of the way. 6 An award in an amount any greater than, at the very 8 most, what Kila originally sought to be awarded would be inappropriate. If it is to recover at all, 9 recovery should be limited to some amount commensurate with the fee award to SNP when it 10 was previously awarded fees. 11 E. Any Net Award of Fees the Court Might Consider Granting Kila Is Unsupported By the Fee Records Supplied By Kila, Which Make It Impossible for the Court 12 to Credibly Assess Time Actually Reasonably Expended and Fees Incurred By Kila. 13 14 Kila’s motion requests $22,425 in fees charged by Greg Gatto. Mr. Gatto declares he is 15 an attorney for Kila in the dual capacity of counsel for its development project and litigation 16 counsel. Other than Mr. Gatto’s name being included in the pleadings, he has never appeared. 17 He is not the signator on any pleading. A review of his declaration clearly shows his efforts were 18 duplicative of Mr. Brown’s time. There is no showing Mr. Gatto’s time was reasonable or 19 necessary. 20 • Invoice 286 has no entries related to the motion to vacate. 21 • Invoice 302 is not related to the motion to vacate and has an entry regarding eminent domain. 22 • Invoice 321 has entries related to “leasing issues”. 23 6 Kila had two separate law firms engaged in this matter. Stoel Rives staffed the matter with four 24 attorneys and a paralegal. Kila’s lead counsel, and highest rat