Judge: Curtis A. Kin, Case: 21STCV19709, Date: 2022-10-11 Tentative Ruling
Case Number: 21STCV19709 Hearing Date: October 11, 2022 Dept: 72
MOTION FOR POST-JUDGMENT COSTS AND ATTORNEY FEES
INCURRED IN ENFORCING JUDGMENT
Case: Semyon Ginzburg v. Hercules
Investments, LLC et al. (21STCV19709)
TENTATIVE RULING:
Plaintiff and judgment creditor
Semyon Ginzburg’s Motion for an Order Awarding Post-Judgment Costs and Attorney
Fees Incurred in Enforcing Judgment is DENIED.
Pursuant to CCP § 685.040, paragraph 13 of the stipulated
judgment, and CCP § 1033.5(10)(A), creditor Ginzburg is entitled to the
reasonable and necessary costs of enforcing a judgment.
However, the motion was not properly served. CCP §
685.080(b) states: “The notice of motion shall be served on the judgment
debtor. Service shall be made personally or by mail.” The proof of service
indicates that debtors were served the motion by mail. However, there is no
proof of service indicating that the supporting declaration, amended
declaration, or proposed order were served on debtors.
Moreover, the claimed fees are
insufficiently supported. (See CCP § 685.080(b).) Creditor seeks fees
for 531.4 hours incurred at an hourly rate of $500 for “collecting and
enforcing the settlement agreement and judgment” between August 17, 2021 and
September 1, 2022. (Lindemann Decl. ¶ 3.) Counsel avers: “The services rendered
include communications attempting to enforce the settlement agreement and
judgment, post judgment enforcement proceedings in this case, defending a
separate action brought by Justin Bunnell, defending a separate interpleader
brought by Ethan Brown, defending an Appeal brought by Justin Bunnell, and a
whole host of other services.” (Lindemann Decl. ¶ 3.)
First, the judgment was entered
on December 9, 2021. Because judgment was not entered before this date, fees
incurred from August 17, 2021 to December 9, 2021 necessarily could not have
been incurred in enforcing the judgment.
Second, the Court file reflects
that the motions which creditor filed have been unsuccessful. On February 1,
2022, creditor’s ex parte application for order assigning right to payment was
denied. On February 15, 2022, creditor’s motion for order assigning right to
payment was denied. On May 3, 2022, creditor’s motion to compel compliance with
subpoena was denied. Accordingly, to the extent that the “post judgment
enforcement proceedings in this case” includes work on creditor’s ex parte
application and motions, such work appears not to have been reasonable and
necessary.
Third, although creditor incurred
fees defending against proposed intervenor Justin Bunnell’s efforts to vacate
the stipulated judgment, these fees are not related to the collection of
judgment against debtors. Accordingly, it cannot be said that the fees creditor
incurred in defending against Bunnell’s ex parte application to vacate the
stipulated judgment or motion to intervene were reasonable or necessary to the
enforcement of the judgment.
Fourth, creditor did not provide
any breakdown of how many hours were spent on each task purportedly incurred to
enforce the judgment, such as through submission of time sheets. Accordingly,
the claim of 531.4 hours is insufficiently supported. On its face, the number
of hours appears to be without merit.
Further, creditor also seeks
$55,477 in post-judgment interest. (Lindemann Decl. ¶ 4.) However, interest is
not the type of cost that can be claimed in this motion. (See CCP §
685.070(a) [listing costs that creditor may claim].)
Moreover, creditor claims $149
for gas and mileage. (Lindemann Decl. ¶ 5.) However, the Court file reflects
that counsel for creditor has remotely appeared for each hearing since entry of
the judgment.
For the foregoing reasons, the
motion is DENIED.