Judge Daniel M. Crowley, Case Number: BC96858, Date: 2023-10-25 Tentative Ruling

Cross-Defendants W.E. O’Neil Construction Co. of California’s, Continental Casualty Company’s, and Western Surety Company’s motion for an order determining liability for contribution against Cross-Defendant R & J Sheet Metal, Inc. and in favor of W.E. O’Neil Construction Co. of California, Continental Casualty Company, and Western Surety Company on the joint Judgment is granted in the total amount of $276,146.44.

Moving Cross-Defendants W.E. O’Neil Construction Co. of California (“WEO”), Continental Casualty Company (“Continental”), and Western Surety Company (“Western”) (“Moving Parties”) move for an order determining liability for contribution against Cross-Defendant R & J Sheet Metal, Inc. (“R&J”) (“Cross-Defendant”) on the grounds that R&J’s due proportion of the Judgment and fees and costs in the sum of $196,280.76, and that Moving Parties have paid the sum of $422,322.15, which includes all sums jointly owed by R&J to Cross-Complainant Joseph Karscig DBA Architectural Systems, Inc. (“ASI”) (“Cross-Complainant”) in satisfaction of the judgment, an amount that exceeds Moving Defendants’ pro rata share. (Notice of Motion, pgs. 2-3; C.C.P. §§881, 883(a).) Moving Parties also seek post-judgment interest of $196,280.76. (Notice of Motion, pgs. 2-3; C.C.P. §§881, 883(a).) In the alternative, Moving Parties argue that if their contribution is limited at this point in time to those amounts set forth in the Court’s August 20, 2019, Judgment and the August 26, 2019, Order updating the Judgment, that R&J’s currently due proportion of the joint Judgment is the sum of $180,122.73. (Notice of Motion, pg. 3.)

A judgment debtor that is entitled to compel contribution or repayment under C.C.P. §882 may apply, on noticed motion, to the court that entered the judgment for an order determining liability for contribution or repayment. (C.C.P. §883(a).) The application must be made at any time before the judgment is satisfied in full or within 30 days thereafter. (C.C.P. §883(a); see Comerica Bank v. Runyon (2017) 16 Cal.App.5th 473, 476, 479-483 [judgment debtor’s application for order of contribution was timely filed because when it was heard, judgment creditor had not yet filed satisfaction of judgment].)

An applicant is not required to plead or prove timeliness. (Comerica Bank, 16 Cal.App.4th at pgs. 479-481.) If the opposing party raises the issue, then the judge must determine timeliness based on the evidence the parties have submitted as well as the status and content of the court’s file. (Id. at pg. 481.)

The phrase “the judgment is satisfied in full,” as used in C.C.P. §883(a) means only at such time as the creditor has filed a full acknowledgment of satisfaction of the judgment. (Id. at pg. 482.) A judgment cannot be satisfied within the meaning of C.C.P. §883(a) until the judgment creditor is paid in full and has no other outstanding claim, and the judgment debtor’s obligation has been fully extinguished. (Id.)

R&J’s argument that Moving Parties’ motion is untimely is unavailing. WEO first filed its original motion for contribution on October 29, 2019. ASI’s Satisfaction of Judgment as to WEO and its related parties and sureties was filed on October 17, 2019. Since the original motion was filed before expiration of the 30-day statutory period, the motion was timely filed.

In the intervening period of filing the motion for contribution, R&J filed a Notice of Appeal of the ASI Summary Judgment. R&J’s primary argument in its opposition to the original Motion for Contribution was that its filing of the Notice of Appeal stayed any consideration of the Motion for Contribution. On March 4, 2020, this Court agreed that the filing of the Notice of Appeal precluded it from considering the motion on the merits and that the matter had been stayed on appeal, and the matter was taken off calendar. (Decl. of Chamberlain ¶12, Exh. K.) As a result, the matter was taken off calendar. Since the original motion was timely filed within the statutory period and was subsequently stayed by R&J’s appeal, the Court will consider the matter on its merits.

R&J’s argument that WEO does not have standing to seek contribution as the judgment debtor because the money used to pay the judgment came from WEO’s insurer is unavailing. A judgment debtor who has paid more than its proportion of a judgment can enforce its right to contribution under C.C.P. §882. It is undisputed that WEO is a judgment debtor, and R&J cites no law in support of its proposition that WEO cannot seek contribution under the statute.

Here, there is no apportionment of joint liability made by the Judgment itself, or dictated by the terms of any underlying instrument, the due proportion of the liability of the joint judgment debtors must be calculated on a pro rata basis. (Civ. Code §1432; Wooley v. Seijo (1964) 224 Cal.App.2d 615, 621-622.) The Judgment is effectively against only two parties: R&J and WEO (and its sureties). (JMR Construction Corp. v. Environmental Assessment & Remediation Management, Inc. (2015) 243 Cal.App.4th 571, 594-595.) Therefore, the proper pro rata allocation between R&J and Moving Parties is 50/50. Since Moving Parties paid the whole of the $392,561.53 owed jointly by R&J, Moving Parties are entitled to contribution from R&J of half of this sum, $196,280.76, for the principal, prejudgment interest, attorneys’ fees, and costs.

Accordingly, Moving Parties are entitled to contribution from R&J for $196,280.76.

C.C.P. §685.020(a), states: “Except as provided in subdivision (b), interest commences to accrue on a money judgment on the date of entry of the judgment.”

WEO is entitled to post-judgment interest from R&J at the legal rate of 10% on the amount of $196,280.76 due from R&J from the date it paid the judgment on October 1, 2019, to the date of this hearing in the amount of $79,865.68.

Post judgment interest here is calculated at 10% of $196,280.76 or $19,628.00 per year for four (4) years ($78,512.30) and 25 days at $1,344.38 ($19,628.00 divided by 365 days = $53.78 per day x 25 days (Oct.1st to Oct. 25, 2023) or $1,344.38: $78,512.30 + $1,344.38 = $79,856.68 in interest.

Accordingly, Moving Parties are entitled to post-judgment interest in the amount of $79,856.68.

Moving Parties’ motion for an order determining liability for contribution against R&J and in favor of Moving Parties on the joint Judgment is granted in the total amount of $276,146.44.

Hon. Daniel M. Crowley

Judge of the Superior Court