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Dc Painting, Inc v. Michael Summers

December 17, 2010

DC PAINTING, INC., PLAINTIFF AND RESPONDENT,
v.
MICHAEL SUMMERS, DEFENDANT AND APPELLANT.



Super. Ct. No. 37-2007-00074199-CL-BC-CTL APPEAL from an order of the Superior Court of San Diego County, William R. Nevitt, Jr., Judge. Affirmed.

The opinion of the court was delivered by: Nares, J.

DC Painting v. Summers CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

This action involves a dispute over a contract for DC Painting, Inc. (DC Painting) to paint a commercial property owned by Michael Summers. The contract called for payment to DC Painting in the amount of $4,200 and contained an attorney fee clause. A dispute arose between the parties and Summers refused to pay DC Painting.

DC Painting sued Summers, and, following a court trial, judgment was entered in favor of DC Painting in the amount of $3,800.

Thereafter, DC Painting brought a motion for attorney fees, seeking $69,735 in fees. The court found that (1) DC Painting was the prevailing party on the contract; (2) DC Painting provided the requisite prelitigation notice to Summers that he might be liable for fees and costs, required under Code of Civil Procedure*fn1 section 1033, subdivision (b)(2), where a party obtains a judgment within the jurisdictional amount of the small claims court; (3) Summers's section 998 offer did not preclude an award of attorney fees to DC Painting; and (4) $37,100 constituted a reasonable amount of attorney fees.

Summers appeals the order awarding attorney fees, asserting (1) he was not given proper notice under section 1033 that the action could result in an award of fees and costs to DC Painting; (2) an award of fees was not proper because Summers's section 998 offer to compromise was greater than DC Painting's recovery; (3) DC Painting was not the prevailing party on the contract; (4) the above facts, taken together, required a denial of fees; and (4) the amount of the fee award was unreasonable. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A. DC Painting's Painting Work for Summers

In March 2007 Summers, through his agent Mark Ewing, entered into a written contract with DC Painting for painting work on Summers's commercial building. The contract was in the amount of $4,200. The contract contained a provision for recovery of attorney fees in any action brought to enforce the contract.

In April 2007 DC Painting substantially completed the painting work.

B. The Dispute

Summers refused to pay DC Painting, and, according to DC Painting, refused it access to the property to address punch list items and touch-up painting. According to DC Painting, Summers was unsatisfied with the color of the paint, although Summers chose the paint color.

Thereafter, Ewing sent DC Painting a check in the amount of $3,050 for partial payment, but Summers stopped payment on the check. Summers then asserted that he did not enter into the contract, he did not know about the contract, and Ewing did not have authority to enter into the contract. Summers denied receiving a preliminary notice of the work being performed and threatened that the costs of collecting would make it impossible for DC Painting to be made whole.

DC Painting's counsel sent Summers two letters notifying Summers that if the amounts owed were not paid in full, DC Painting would be forced to institute legal action, which could include an award of attorney fees and costs. Specifically, in a letter sent July 2, 2007, counsel for DC Painting stated, "As you are aware, the contract with DC Painting provides for the payment of all costs associated with the collection of overdue payments, including attorneys' fees." The letter then totaled the amount of principal and interest due, as well as the amount of attorney fees incurred to that date, and stated, "If payment to DC Painting in the amount of $6,306.19 is not delivered to our offices by the close of business on July 5, 2007, we will file suit in the Superior Court of San Diego for breach of contract and to foreclose on the mechanic's lien already recorded against the Thornmint property."

Thereafter, DC Painting received a check for $3,900 from a third party, Ameri Care Medical Services, Inc., a company owned by Summers, with the notation, "Partial payment being paid under protest due to ...


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