First Carrier v. IDX West et al

Exh. B.)

Relevant Procedural History

Walmart filed a motion for summary judgment to be heard on February 11, 2026. On January 16,

2026, Plaintiff filed a dismissal without prejudice of the entire action of all parties and all causes

of action. Walmart filed an ex parte application to set aside the dismissal, which was denied. At

the ex parte hearing, Walmart stated it intends to file a motion for attorney’s fees.

Timeliness

“A notice of motion to claim attorney's fees for services up to and including the rendition

of judgment in the trial court--including attorney's fees on an appeal before the rendition of

judgment in the trial court--must be served and filed within the time for filing a notice of appeal

under rules 8.104 and 8.108 in an unlimited civil case or under rules 8.822 and 8.823 in a limited

civil case.” (Cal. Rules of Court, rule 3.1702(b)(1).)

Effective January 1, 2024, one of the requirements for a limited civil action is that the amount in

controversy does not exceed $35,000.00. (Code Civ. Proc., § 86, subd. (a).) Here, the amount

demanded was less than $35,000.00. As such, the limited civil appellate rules apply here to

determine the timing standards.

A notice of appeal of a limited civil action must be filed on or before the earliest of: (A) 30 days

after the trial court clerk serves the party filing the notice of appeal a document entitled “Notice of

Entry” of judgment a filed-endorsed copy of the judgment showing the date it was served; (B) 30

days after the party filing the notice of appeal serves or is served by a party with a document

entitled “Notice of Entry” of judgment or a filed-endorsed copy of the judgment accompanied by a

proof of service; (C) 90 days after entry of judgment. (Cal. Rules of Court, rule 8.822.) Here, the

Register of Actions reflects that no judgment has been entered yet in this case. Therefore, the

Court finds Walmart’s fee motion timely filed.

Analysis of Merits

Walmart seeks contractual attorney’s fees pursuant to Civil Code section 1717. As

Walmart explains it, the contract providing for recovery of attorney’s fees is an agreement

between Plaintiff and third party In Line Brokerage Inc. (In Line Brokerage), which Walmart calls

the In Line Agreement. (Lewis Decl., ¶¶2, 3, 6, Exhs. A, B, E.) According to Walmart, when

Plaintiff and In Line Brokerage entered into the In Line Agreement, one of Plaintiff’s

representatives agreed to In Line Brokerage’s online agreement. (Lewis Decl., ¶3, Exh. B, pp.

031-048.)

The In Line Agreement states it is between the CARRIER named on the Signed

Agreement Affidavit and In Line Brokerage. (Lewis Decl., Exh. B, p. 032.) Importantly, Walmart

does not direct the court to any portion of the In Line Agreement showing the Signed Agreement

Affidavit page that would identify the CARRIER. Lewis’s declaration supporting the fees motion

is 139 pages. “[J]udges need not paw over the files without assistance from the parties.” (Orr v.

Bank of Am., NT & SA (9th Cir. 2002) 285 F.3d 764, 775 (Orr), citing to Huey v. UPS, Inc. (7th

Cir. 1999) 165 F.3d 1084, 1085.) Despite this failure to direct the court to relevant evidence, the

Court can observe that the Signed Agreement Affidavit appears to be found on Bates page 031

of Exhibit B to the Lewis Declaration and specifies that Plaintiff First Carrier, LLC agreed to In

Line Brokerage’s online agreement on June 26, 2023. (Lewis Decl., Exh. B, p. 031.)

However, Walmart does not direct the court to any part of the In Line Agreement specifying that

Walmart is a party to or beneficiary of the contract. The portion of the In Line Agreement that

purportedly authorizes recovery of attorney’s fees states: “BROKER, shipper, consignee or

owner of the property transported shall have the right to immediate injunctive relief in addition to

any and all other remedies available at law, including but not limited to, the right to

reimbursement of reasonable attorney’s fees.” (Lewis Decl., Exh. B, p. 039.)

Walmart argues that the In Line Agreement is “crystal clear.” (Walmart Memo., 5:9.) This

statement is not persuasive. The paragraph purporting to authorize attorney’s fees does not

define the terms BROKER, shipper, consignee, or owner. Nor does that paragraph mention

Walmart Inc. Also, Walmart does not direct the court to any evidence showing that it is a broker,

shipper, consignee, or owner of transported property that would give it the right to recover

reasonable attorney’s fees. Again, the court is not obligated to dig through 139 pages of

evidence without guidance from the parties. (Orr, supra, 285 F.3d at p. 775.) As such, the In Line

Agreement is not clear that Walmart is one of the entities entitled to recover attorney’s fees

under the contract.

The Court therefore finds that Walmart did not present evidence in the form of a contract entitling

it to recover attorney’s fees in this action.

Prevailing Party Status

Even if Walmart had presented evidence of a contract entitling it to recover attorney’s

fees, another obstacle is the requirement to show that Walmart is a prevailing party entitled to

recover costs and fees.

Code of Civil Procedure section 1032, subdivision (a)(4), provides: “ ‘Prevailing party’ includes

the party with a net monetary recovery, a defendant in whose favor a dismissal is entered, a

defendant where neither plaintiff nor defendant obtains any relief, and a defendant as against

those plaintiffs who do not recover any relief against that defendant. If any party recovers other

than monetary relief and in situations other than as specified, the ‘prevailing party’ shall be as

determined by the court, and under those circumstances, the court, in its discretion, may allow

costs or not and, if allowed, may apportion costs between the parties on the same or adverse

sides pursuant to rules adopted under Section 1034.”

Walmart contends it is a prevailing party because it is a defendant where neither plaintiff nor

defendant obtained any relief and it is a defendant against a plaintiff who did not recover any

relief against that defendant. Moreover, the Court can observe that Plaintiff filed a voluntary

dismissal of the action here.

In opposition, Plaintiff disputes that Walmart is the prevailing party, arguing that under California

law a voluntary dismissal generally does not render the defendant a prevailing party for purposes

of contractual attorney’s fees unless expressly provided by the contract. For this point, Plaintiff

cites to Civil Code section 1717, subdivision (b)(2), which states: “Where an action has been

voluntarily dismissed or dismissed pursuant to a settlement of the case, there shall be no

prevailing party for purposes of this section.” Plaintiff’s position has merit.

Code of Civil Procedure section 1032, subdivision (b), provides: “Except as otherwise

expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in

any action or proceeding.” Civil Code section 1717 appears to be a statute that expressly

provides otherwise regarding the right to recover costs.

“Many contracts include a provision requiring a contracting party to pay any attorney fees that

the other party incurs to enforce the contract or in litigation arising from the contract.” (Santisas

v. Goodin (1998) 17 Cal.4th 599, 602 (Santisas).) The Supreme Court explained that the

Legislature enacted Civil Code section 1717 to ensure that contractual attorney fee provisions do

not operate in an unfairly one-sided manner. (Santisas, supra, 17 Cal.4th at p. 602.)

Relying on Civil Code section 1717, subdivision (b)(2), the Supreme Court states that in

voluntary pretrial dismissal cases, this provision bars recovery of attorney fees incurred in

defending contract claims. (Santisas, supra, 17 Cal.4th at p. 602.) The high court construed

subdivision (b)(2) “as overriding or nullifying conflicting contractual provisions, such as provisions

expressly allowing recovery of attorney fees in the event of voluntary dismissal or defining

‘prevailing party’ as including parties in whose favor a dismissal has been entered.” (Santisas,

supra, 17 Cal.4th at p. 617.)

Here, this is no doubt that Plaintiff voluntarily dismissed the entire action before trial. Likewise,

there is no doubt that Walmart seeks recovery of attorney’s fees pursuant to a contract that is

subject to Civil Code section 1717. Therefore, because Plaintiff dismissed the action, Civil Code

section 1717, subdivision (b)(2), nullifies or overrides any conflicting contractual fees provision,

including the In Line Agreement.

In its reply, Walmart only briefly addresses the prevailing party issue, arguing that during

its ex parte application to vacate the dismissal, the Court “unequivocally” stated that under Civil

Code section 1032, Walmart would be the prevailing party. (Walmart Reply, 3:7-9.)

If the Court did make such a statement, the Court is not bound by it because the question of

attorney’s fees was not properly before the Court then, nor had the topic been fully briefed by the

parties.

In addition, as highlighted above, Code of Civil Procedure section 1032, subdivision (b), includes

important limiting language that “[e]xcept as otherwise provided by statute,” a prevailing party is

entitled to recover costs. And the Santisas Court makes it clear that Civil Code section 1717 is a

statute providing otherwise regarding entitlement to costs recovery in the context of contractual

attorney’s fees where a matter has been dismissed voluntarily. (Santisas, supra, 17 Cal.4th at

pp. 602, 617.) The Court finds that Civil Code section 1717, subdivision (b)(2), bars Walmart’s

recovery of contractual attorney’s fees.

RULING

For all the reasons stated above, the Court rules as follows:

1) The Court FINDS that Walmart did not present evidence in the form of a contract

entitling it to recover attorney’s fees in this action.

2) The Court FINDS that Civil Code section 1717, subdivision (b)(2), bars Walmart’s

recovery of contractual attorney’s fees.

3) The Court DENIES Walmart’s motion for attorney’s fees.