(Super. Ct. No. CV023970)
The opinion of the court was delivered by: Raye , P. J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Plaintiff Peter Halamandaris (hereafter Halamandaris) appeals from an order awarding attorney fees to defendant Steven Sephos (hereafter Sephos) following entry of judgment dismissing Halamandaris's action due to dilatory prosecution. Halamandaris contends the trial court erred when it awarded attorney fees to Sephos because (a) the action was not an "action on the contract" under Civil Code section 1717, (b) the court did not have jurisdiction to award attorney fees, and (c) the fees awarded resulted from the court's abuse of its discretion. We will affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On June 18, 2004, Halamandaris and his wife, Anna,*fn1 filed a complaint against Sephos and Dual Arch International, Inc.,*fn2 for cancellation of deed of trust and quiet title (first cause of action), declaratory relief (second cause of action), injunctive relief (third cause of action), fraud (fourth cause of action), and slander of title (fifth cause of action). The following exhibits were attached to the complaint: a legal description of commercial real property located at 1233 East Charter Way in Stockton (Exhibit "A"), a legal description of residential real property located at 16089 Tecklenburg Road in the County of San Joaquin (Exhibit "B"), a promissory note (Exhibit "C"), a deed of trust (Exhibit "D"), and a notice of default and election to sell (Exhibit "E").
The promissory note (the note) contains the following language: "If action be instituted on the note, I promise to pay such sum as the Court may fix as attorney's fees."
Sephos filed his answer to the complaint on August 4, 2004. Thereafter, the parties engaged in law and motion, a case management conference, and a settlement conference. Jury trial was set to commence on May 31, 2005. The record, which consists mainly of the trial court register of actions, reflects that the trial date was continued several times, either by the court or at the request of the parties.
Sephos filed motions to dismiss the action for lack of prosecution on June 4, 2009, and October 23, 2009. Halamandaris opposed Sephos's motions, as well as the trial court's sua sponte motion to dismiss the action pursuant to the five-year rule set forth in Code of Civil Procedure section 583.310.*fn3
On December 11, 2009, the court granted Sephos's motion to dismiss, and a minute order issued that day. The minute order was amended on January 11, 2010, to include the following language: "The court finds judgment for Steven A[.] Sephos against Peter Halamandaris, Anna Halamandaris in the amount of: $0 principal, $0 pre-judgment interest, $0 attorney fees and $0 costs." Halamandaris's subsequent motion for reconsideration was denied.
On February 2, 2010, Sephos filed a motion to fix attorney fees pursuant to Civil Code section 1717.*fn4 The motion was supported, in part, by the declarations of attorneys Joseph Nolan and Karen Sadler (wife of attorney James Sadler, who passed away on July 27, 2008).
Halamandaris opposed the attorney fees motion on the grounds that the causes of action in the complaint were not based on the contract; the order prepared by Sephos after the hearing was neither approved by Halamandaris nor consistent with the trial court's amended minute order; the memorandum of costs was not timely filed in violation of California Rules of Court, rule 3.1700(a)(1) (hereafter rule 3.1700(a)(1)); the request for fees included "inflated work hours, duplicative work, excessive hours expended and lack of documentary support"; and the request for fees ...