Vestar/Kimco Tustin v. Sesbar CA4/3

FACTS AND PROCEDURAL BACKGROUND

Vestar filed its initial complaint against Kboby, Inc., Syed H. Miremad; Pei Chun Lin; Ayoub Sesar,1and Does one through 20. The complaint alleged two causes of action. As to Kboby, Inc. and Does one through 10, Vestar alleged a cause of action for breach of lease. As to Sesar, Miremad, Lin, and Does 11 through 20, the complaint alleged breach of guaranty. Vestar filed a first amended complaint in response to Sesar’s demurrer to the initial complaint. Sesar demurred to the four-page first amended complaint, which again alleged causes of action for breach of lease and breach of guaranty. The court sustained the demurrer to the breach of lease cause of action without leave to amend and overruled the demurrer to the breach of guaranty cause of action. Approximately eight months later, on December 4, 2012, the clerk of the court entered Vestar’s voluntary dismissal without prejudice on the date of trial and after counsel met with the assigned trial judge in chambers. Sesar subsequently filed a motion for attorney fees based on provisions in the lease and the guaranty. (See Civ. Code, § 1717; all undesignated statutory references are to the Civil Code.)…