1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 AMERICAN FIRST FINANCE LLC, No. 1:23-cv-00117-KES-EPG 12 Plaintiff, 13 v. ORDER DENYING MOTION FOR

ATTORNEYS’ FEES

14 FERNANDO MENDOZA GARCIA,

15 Defendant. (Doc. 32) 16 17 Plaintiff American First Finance, LLC (“American First”) moves for attorneys’ fees, 18 arguing that it is entitled to recover reasonable attorneys’ fees and costs as the prevailing party 19 under the indemnification clause of the underlying contract. Motion for Attorneys’ Fee Award 20 and Supporting Memorandum (“Motion”), Doc. 32. Defendant Fernando Mendoza Garcia is a 21 defaulted defendant and has not filed an opposition to the Motion. This matter is suitable for 22 resolution without a hearing pursuant to Local Rule 230(g). For the reasons set forth below, the 23 Motion is denied. 24 I. BACKGROUND 25 On January 26, 2023, American First filed a complaint against Mendoza, dba FM 26 Wireless, FMG Wireless, and Aviliar Everything. Complaint, Doc. 1. American First alleged 27 that it entered into a retail installment sales contract (RISC) program agreement with Mendoza on 28 October 27, 2021. Id. ¶ 7. However, Mendoza “engaged in a fraudulent scheme” to defraud 1 individuals and American First. Id. ¶ 8. Upon discovering the scheme, American First 2 terminated its agreement with Mendoza. Id. ¶ 13. American First asserted three causes of action: 3 (1) fraud; (2) breach of contract; and (3) unfair business practices under California Business and 4 Professions Code § 17200 et seq. 5 On March 20, 2023, American First filed an ex parte application for an extension of time 6 to complete service of the summons and complaint. Doc. 6. American First asserted that it 7 attempted to personally serve Mendoza but had been unsuccessful and would likely need to serve 8 Mendoza by publication. Id. at 2. American First then filed an ex parte application for 9 publication of summons, which the court granted on June 28, 2023. Docs. 9, 17. After Mendoza 10 failed to respond to the complaint, American First requested and obtained a clerk’s entry of 11 default. Docs. 21, 22. 12 On October 23, 2023, American First moved for default judgment, seeking $515,000 plus 13 prejudgment interest. Doc. 24. The magistrate judge issued findings and recommendations, 14 recommending that American First be awarded $515,000 plus prejudgment interest. Doc. 27 at 15 10. The findings and recommendations were adopted on July 30, 2024, awarding American First 16 $515,000 plus prejudgment interest of $141,942.47.1 Doc. 29. American First submitted a bill of 17 costs, which the Clerk of Court taxed at $4,567.00. Doc. 34. American First now moves for 18 attorneys’ fees. 19 II. LEGAL STANDARD 20 “In a diversity case, the law of the state in which the district court sits determines whether a 21 party is entitled to attorney fees, and the procedure for requesting an award of attorney fees is 22 governed by federal law.” Carnes v. Zamani, 488 F.3d 1057, 1059 (9th Cir. 2007). California 23 Code of Civil Procedure § 1021 provides that “[e]xcept as attorney’s fees are specifically provided 24 for by statute, the measure and mode of compensation of attorneys and counselors at law is left to 25 the agreement, express or implied, of the parties.” Cal. Civ. Proc. Code § 1021. California Civil 26

27 1 Prejudgment interest was awarded at a rate of 10% from the entry of the contract on October 27, 2021 through the date of entry of judgment, pursuant to California Code of Civil Procedure § 28 3287 and § 3289(b). 1 Code § 1717 further provides: In any action on a contract, where the contract specifically provides that attorney’s fees and 2 costs, which are incurred to enforce that contract, shall be awarded either to one of the 3 parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, 4 shall be entitled to reasonable attorney’s fees in addition to other costs. 5 Cal. Civ. Code § 1717(a). “A party seeking recovery of attorneys’ fees under Section 1717(a) 6 must show that: (1) a contract authorizes such fees; (2) the moving party is the prevailing party; 7 and (3) the fees incurred are reasonable.” Javaheri v. Deutsche Mellon Nat'l Asset, LLC, No. 2:18- 8 CV-06615-ODW(FFM), 2020 WL 104995, at *2 (C.D. Cal. Jan. 9, 2020). Moreover, “to recover 9 fees incurred in connection with litigation of a claim under a fee shifting contract, a party must 10 show that the claim fell within the scope of the contract...” Id. 11 III. DISCUSSION 12 “Before section 1717 comes into play, it is necessary to determine whether the parties 13 entered an agreement for the payment of attorney fees, and if so, the scope of the attorney fee 14 agreement.” Mountain Air Enterprises, LLC v. Sundowner Towers, LLC, 3 Cal. 5th 744, 752 15 (2017) (internal quotation marks and citation omitted). American First points to the RISC’s 16 indemnity clauses as the basis for its request for attorneys’ fees:

17 7. SELLERS INDEMNITY OBLIGATIONS. In addition to and in furtherance of Seller’s indemnity obligations described elsewhere in this Agreement, Seller agrees to 18 indemnify, to defend, and to save and to hold Purchaser, Purchaser’s parent, and all 19 subsidiaries and affiliates of Purchaser, and their respective officers, employees, agents, insurers, and attorneys (“Indemnified Persons”), harmless from any and all claims, suits, 20 obligations, damages, losses, costs, expenses (including without limitation, reasonable attorneys’ fees and costs) . . . of every nature and kind that may be asserted against or 21 incurred by such Indemnified Persons arising out of or in any way occasioned by this Agreement . . . . This includes, without limitation, any adverse claim, demand, 22 administrative proceeding, or lawsuit asserting that actions or inactions on the part of 23 Seller or of Seller’s officers, employees, or agents, were fraudulent, misleading, or constitute an unfair or deceptive practice, or violated any applicable federal or state law, 24 rule, or regulation, or arising out of any other adverse claim, demand, administrative proceeding, or lawsuit in any way related to the Product or services provided by Seller, or 25 in any way arising directly or indirectly out of any default by Seller under this Agreement.

26 Motion for Default Judgment, Ex. A, Doc. 24 at 26-27. 27 Indemnification clauses, however, presumptively do not provide for attorneys’ fees 28 1 incurred for disputes between the parties. “California courts presume that ‘[a] clause that 2 contains the words “indemnify” and “hold harmless” generally obligates the indemnitor to 3 reimburse the indemnitee for any damages the indemnitee becomes obligated to pay third 4 persons—that is, it relates to third party claims, not attorney fees incurred in a breach of contract 5 action between the parties to the indemnity agreement itself.’” Epic Games, Inc. v. Apple, Inc., 6 67 F.4th 946, 1003 (9th Cir. 2023) (quoting Alki Partners, LP v. DB Fund Servs., LLC, 4 Cal. 7 App. 5th 574, 600 (2016)). The “presumption applies to even broad language in indemnity 8 provisions, like ‘all claims ... arising out of or resulting from performance of the Work,’ . . . and 9 ‘all liability’ relating to claims by ‘any person’ for injuries ‘aris[ing] out of, or ... in any way 10 connected with, or incidental to the performance of the work’” under the contract. AGK Sierra 11 De Montserrat, L.P. v. Comerica Bank, 109 F.4th 1132, 1141 (9th Cir. 2024) (internal citations 12 omitted). There needs to be “much more specific language that clearly evinces a desire to include 13 first-party litigation costs” to rebut the presumption. Id. A contract “can rebut this presumption 14 with language that ‘specifically provide[s] for attorney’s fees in an action on the contract.’” Epic 15 Games, 67 F.4th at 1003. 16 American First has not argued how the indemnity provision in the RISC “clearly evinces” 17 the parties’ desire to include litigation fees between the parties as part of the indemnity clause. 18 Instead, American First highlights language that is applicable to third party claims: “harmless 19 from any and all” expenses, “of every nature and kind,” “arising out of or in any way 20 occasioned,” and “arising directly or indirectly out of any default by Seller under this 21 Agreement.” Motion, Doc. 32 at 6. Although broad, nothing in those phrases can be construed as 22 clearly contemplating indemnification for a suit between the parties. “[A]n indemnification 23 clause in which one party promised to ‘indemnify’ the other from ‘any, all, and every claim’ 24 which arises out of ‘the performance of the contract’ deals only with third party claims, and 25 cannot support an award of attorney fees in an action for breach of contract between the parties to 26 the agreement.” Alki Partners, 4 Cal. App. 5th at 601 (quoting Myers Building Industries, Ltd. v. 27 Interface Technology, Inc., 13 Cal.App.4th 949, 974 (1993)). Broad language, such as “any and 28 all loss,” is presumed to apply only to third-party fees and costs; such broad phrases contain 1 | “none of the specific language that would indicate an agreement to include first-party litigation 2 | costs.” AGK Sierra, 109 F.4th at 1141. The plain language of the indemnification clause, 3 | including its title, suggests that it was intended as an indemnification clause for third party claims. 4 | There is no language in the indemnification clause, or another part of the contract that American 5 | First points to, that “would be unnecessary if indemnification only referred to third party claims” 6 | or which expressly states that the parties contemplated that the indemnification clause provided 7 | for attorneys’ fees for lawsuits between the parties. Epic Games, 67 F.4th at 1003-04. There is 8 | no basis upon which the Court could conclude that the parties clearly intended for the 9 | indemnification clause to provide for attorneys’ fees between the parties. As there is no language 10 || in the indemnity provision, or any other part of the RISC, from which the Court can reasonably 11 | infer that the parties had a clear desire to include litigation costs between the parties, American 12 | First’s motion for attorneys’ fees is denied. 13 | IV. CONCLUSION 14 For the reasons set forth above, the Court denies American First’s motion for attorneys’ 15 | fees. 16 17 | TIS SO ORDERED. _ 18 Dated: _ February 5, 2025 4h 19 UNITED STATES DISTRICT JUDGE

20 21 22 23 24 25 26 27 28