Judge: Cherol J. Nellon, Case: 22STCP00152, Date: 2023-12-20 Tentative Ruling

Case Number: 22STCP00152    Hearing Date: December 20, 2023    Dept: 14

Commodores Entertainment vs Thomas McClary


This is a petition action to enter and enforce a judgment issued in a different state.

            On January 3, 2022, Judgment Creditor Commodores Entertainment Company, Inc. (“Commodores”) filed an application for entry of a Sister-State Judgment. On January 13, 2022, the clerk entered judgment in favor of Commodores and against Judgment Debtors Thomas McClary (“McClary”) and Fifth Avenue Entertainment, LLC (“Fifth Avenue”) in the amount of $607,179.23.

            Judgment Debtors now move this court for orders (1) setting aside the judgment entered by the clerk (2) directing the return of any money collected on the judgment, and (3) directing the payment of $3,195.00 in sanctions.

            Judgment Debtors’ Request for Judicial Notice (“RJN”) is GRANTED. Judgment Creditor’s RJN is DENIED for failure to comply with California Rules of Court Rule 3.1306(c).

            The motion is GRANTED, in part. The judgment entered by the clerk of this court is VACATED. Judgment Debtors are instructed to seek a restitution order from the Florida court to which the underlying matter is assigned. The request for sanctions is DENIED.

            Code of Civil Procedure § 1710.15 permits a judgment creditor to apply for the entry of a California judgment based on the existence of a judgment entered in another state. Code of Civil Procedure § 1710.40 permits the court to vacate the judgment. The parties have agreed that the judgment should be vacated. They disagree about what happens next.

            This judgment was based on a fee order made by a federal district court in Florida. The federal Court of Appeals for the 11^th Circuit has just reversed that order and remanded the matter to the district court for further proceedings. Since the basis for the judgment has been removed, the judgment should now be vacated.

            Ordinarily in this situation, all the money collected on the judgment would be returned. See Beach Break Equities, LLC v. Lowell (2016) 6 Cal.App.5^th 847, 852-853. However, Commodores offers two objections: (1) that a restitution order should come from the Florida courts, not this court, and (2) that the Florida court may still enter an order awarding some money, and it would be inefficient to continue transferring the collected sums back and forth between the parties.

            These objections are reasonable. It is generally the province of the reviewing court, or else the court where the matter is tried, to make restitution orders. See Beach Break, supra, 6 Cal.App.5^th at 852-853. And the remand order issued by the 11^th Circuit only directed the District Court to undertake further consideration. No specific instructions were issued. All parties are before the Florida District Court, and subject to its orders. There is no obstacle to bringing a motion in that court, which is in a far better position to make a ruling than this court would be.

            Finally, the moving parties seek fees as sanctions under Code of Civil Procedure § 128.5. But they have not complied with the requirements of subdivision (f). And the court does not believe that the opposition filed by Commodores was frivolous, in bad faith, or intended solely for purposes of delay. No such fees or sanctions are awarded.