1 2 O 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 TANYA MALCH a/k/a TANYA ) Case No. EDCV 15-00517 DDP (KKx)

PETROVNA, )

12 ) Plaintiff, ) 13 ) v. ) ORDER DENYING PLAINTIFF’S MOTION 14 ) FOR NEW TRIAL AND GRANTING DANIEL G. DOLAN, an ) DEFENDANTS’ MOTION FOR ATTORNEY 15 individual; ANDREA McGINTY, ) FEES an individual; NATIVE FOODS ) 16 HOLDINGS CORPORATION; et al., [Dkt. 185, 189, 200, 202] 17 Defendants. 18 19 20 Presently before the court is Plaintiff’s “Notice of Motion 21 and Motion for New Trial” (Dkt. 189) and Defendant’s Motion for 22 Attorney Fees (Dkt. 185). Having considered the submissions of the 23 parties, the court denies Plaintiff’s motion, such as it is, grants 24 Defendants’ motion, and adopts the following Order. 25 I. Discussion 26 A. Plaintiff’s “Motion” for New Trial 27 Under Federal Rule of Civil Procedure 59, a motion to alter or 28 amend a judgment, or a motion for a new trial, must be filed within 1 59(a), (e). In this case, on the twenty-eighth day after entry of 2 judgment against Plaintiff, Plaintiff filed a “Notice of Motion and 3 Motion for New Trial Under Rule 59(a) and to Alter or Amend the 4 Judgment Under [Rule] 59(e).” (Dkt. 189.) Plaintiff’s filing 5 consisted of a half-page document stating that the “ground for the 6 motion for a new trial is insufficiency of evidence for the jury to 7 find” against Plaintiff. Although the half-page notice stated that 8 the motion was based upon Plaintiff’s Memorandum of Points and 9 Authorities, declarations in support thereof, supporting exhibits, 10 and other court documents, Plaintiff did not attach or submit 11 those, or any other, documents. Defendants opposed the motion, and 12 Plaintiff did not file a reply. 13 At oral argument, Plaintiff acknowledged that there was no 14 evidence before the court upon which to grant Plaintiff a new 15 trial. Indeed, Plaintiff’s notice of motion did not so much as 16 “specify with particularity the respects in which the evidence is 17 claimed to be sufficient.” C.D. Cal. L.R. 59-1.2. Furthermore, 18 the local rules of this district require that all notices of motion 19 be accompanied by a “complete memorandum in support thereof and the 20 points and authorities upon which the moving party will rely,” 21 along with “the evidence upon which the moving party will reply in 22 support of the motion.” C.D. Cal. L.R. 7-5. This Court may 23 decline to consider a motion that fails to meet these requirements. 24 C.D. Cal. L.R. 7-4. As discussed on the record, Plaintiff did not 25 file a timely (or untimely) motion for a new trial or motion to 26 alter or amend the judgment. To the extent Plaintiff argues that 27 the “Notice of Motion” is sufficient to constitute such a motion, 28 1 the argument has no merit. Plaintiff’s motion for new trial, such 2 as it is, is DENIED. 3 B. Defendants’ Motion for Attorney Fees 4 Defendants move for attorneys fees pursuant to the contract at 5 issue in this case, as well as under California Civil Code § 3344. 6 There appears to be no dispute that the settlement agreement 7 underlying Plaintiff’s breach of contract claim included a 8 California choice of law provision and provided that “in the event 9 of litigation relating to [the] agreement, the prevailing party 10 shall be entitled to its/her reasonable fees and costs.” See Cal. 11 Civil Code § 1717(a) (“In any action on a contract, where the 12 contract specifically provides that attorney’s fees and costs . . . 13 shall be awarded either to one of the parties or to the prevailing 14 party, then the party who is determined to be the party prevailing 15 on the contract . . . shall be entitled to reasonable attorney’s 16 fees . . . .”); Bos v. Bd. of Trustees, 818 F.3d 486, 489 (9th Cir. 17 2016). Section 3344 of the California Civil Code, which formed the 18 basis of the Fifth Amended Complaint’s Third Cause of Action, 19 forbids unauthorized use of a person’s name or likeness and, among 20 other things, provides that the “prevailing party in any action 21 under [Section 3344] shall also be entitled to attorney’s fees and 22 costs.” Cal. Civil Code § 3344(a). 23 Although Plaintiff asserts that Defendants seek a “ridiculous 24 dollar figure,” she provides no argument whatsoever as to why 25 counsel’s specific rates or hours expended are unreasonable.1 The 26 1 The court notes that at the time of the hearing, Plaintiff 27 had not filed any opposition at all to Defendants’ motion for attorney’s fees. The court could have construed that failure as 28 (continued...) 1 court finds the evidence proffered by Defendants satisfactory on 2 both accounts.2 Instead, Plaintiff argues that (1) Defendants 3 improperly seek attorney’s fees related to all five of Plaintiff’s 4 causes of action, despite the fact that Defendants cite only two 5 causes of action entitling them to fees, (2) Defendants cannot 6 recover fees that were paid by Defendants’ insurers, and (3) 7 Defendants were not the prevailing party.3 8 1. Apportionment 9 Plaintiff argues that “the fees and costs must be apportioned 10 to the causes of action being moved upon.” Plaintiff’s argument is 11 not persuasive. Although California Civil Code Section 1717 “only 12 applies to attorney fees incurred to litigate [] contract claims,” 13 the California Supreme Court has explained that “[a]ttorney’s fees 14 15 1(...continued) consent to the granting of the motion. C.D. Cal. L.R. 7-12. As 16 discussed on the record, counsel’s claim that he was unable to file an opposition to the motion because of technical difficulties with 17 his firm’s computer system was not credible. The court nevertheless granted Plaintiff additional time to file a written 18 opposition. Although Plaintiff did file an opposition, counsel repeated the assertion that he was hampered by technical 19 difficulties. The court is no more convinced at this point than it was at the time of the hearing. 20 2 As Defendants point out, these fees were higher than they 21 otherwise might have been as a result of Plaintiff’s counsel’s litigation conduct, including conduct resulting in the imposition 22 of monetary sanctions. Defendants also made three offers of judgment pursuant to Federal Rule of Procedure 68 in amounts 23 ranging from $200,000 to $400,000. Defendants have not, however, sought sanctions against counsel. See 28 U.S.C. § 1927 (“Any 24 attorney . . . who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to 25 satisfy personally the excess costs, expenses, and attorneys’ fees reasonably incurred because of such conduct.”). 26 3 The Fifth Amended Complaint asserted, in addition to causes 27 of action for breach of contract and under California Civil Code Section 3344, claims for invasion of privacy, federal unfair 28 competition, and common law trademark infringement. need not be apportioned when incurred for representation on an issue common to both a cause of action in which fees are proper and 3]}one in which they are not allowed.” Santisas v. Goodin, 17 Cal. 4] 4th 599, 615, 951 P.2d 399, 409 (1998); Reynolds Metals Co. v. 5] Alperson, 25 Cal. 3d 124, 129 (1979). Courts in this circuit, applying Section 1717, frequently decline to apportion fees when a plaintiff’s claims are intertwined with contract claims. See, 8|}/e.g., Linde, LLC v. Valley Protein, LLC, No. 116CVO00527DADEPG, 2019 9} WL 4879206, at *2 (E.D. Cal. Oct. 3, 2019); Marcus v. Countrywide 10] Home Loans, Inc., No. CV 17-950 PA (FFMX), 2017 WL 11286023, at *9 (C.D. Cal. Oct. 13, 2017) Makreas v. First Nat’l Bank of N. 12] California, No. 11-CV-02234-JST, 2014 WL 2582027, at *4 (N.D. Cal. June 9, 2014); Gustafson v. U.S. Bank, No. CV 13-5916 PSG SHX, 2014 14 WL 302242, at *3 (C.D. Cal. Jan. 27, 2014). Here, there is no 15] doubt that all of Plaintiff’s claims are intertwined. As Defendants point out, the Fifth Amended Complaint incorporates the facts related to the alleged breach of contract into each of the five causes of action, and even Plaintiff’s pre-trial documents identify evidence of “use of likeness,” which Plaintiff alleged to constitute a breach of contract, as “key” to each of Plaintiff’s five claims. (Dkt. 131 at 8-9.) Apportionment of fees is not 22 || required. 23 2. Insurer’s participation 24 Plaintiff, relying entirely upon Nightingale v. Hyundai Motor 25 Am., 31 Cal. App. 4th 99 (1994), argues that Defendants did not “incur,” and therefore cannot recover, fees because “the responsibility for the litigation expenses fell on insurance companies, not the Defendants.” Nightengale, however, says no such

1 thing. Furthermore, courts have repeatedly rejected this argument. 2 See Nemecek & Cole v. Horn, 208 Cal. App. 4th 641, 652 (2012) (“We 3 also reject [the] contention that the attorney fee request should 4 have been denied because the fees were paid by Lawyers Mutual 5 rather than [the prevailing party] itself.”), citing Staples v. 6 Hoefke, 189 Cal.App.3d 1397, 1410 (1987) (“Plaintiffs were not 7 entitled to avoid their contractual obligation to pay reasonable 8 attorney fees based on the fortuitous circumstance that they sued a 9 defendant who obtained insurance coverage providing a defense.”); 10 see also Lolley v. Campbell, 28 Cal. 4th 367, 373 (2002) 11 (“[A]ttorney fees are incurred by a litigant if they are incurred 12 in his behalf, even though he does not pay them.”) (internal 13 quotation and citation omitted). 14 3. Prevailing Party 15 Lastly, Plaintiff argues very briefly that Defendants were not 16 the prevailing party. Plaintiff appears to suggest that even 17 though the jury found for Defendants on each of Plaintiff’s causes 18 of action, Defendants nevertheless should not be considered the 19 prevailing party because the jury found that Plaintiff proved some 20 of the elements of some of her claims. This argument, which is not 21 supported by any citation to authority, has no merit. 22 II. Conclusion 23 For the reasons stated above, Plaintiff’s Motion for New Trial 24 is DENIED and Defendants’ Motion for Attorney Fees is GRANTED. 25 Defendants are hereby awarded reasonable attorney’s fees and costs 26 of $763,694, subject to supplementation for amounts incurred 27 subsequent to the filing of the fee motion. 28 1 IT IS SO ORDERED. 2 3 Dated: July 3, 2020

DEAN D. PREGERSON

4 United States District Judge 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28