Judge: Daniel S. Murphy, Case: 20STCV43179, Date: 2023-11-29 Tentative Ruling

Case Number: 20STCV43179    Hearing Date: January 17, 2024    Dept: 32

BACKGROUND

            On November 10, 2020, Plaintiff Ammco Ornamental Iron, Inc. (Ammco) filed this action against Defendants Jennifer Messer, TNT Simmonds, and J. Alexander Co. (JACO), asserting causes of action for (1) breach of contract, (2) foreclosure of mechanic’s lien, (3) violation of Civil Code section 8800, (4) breach of the implied covenant of good faith and fair dealing, and (5) common counts.

The complaint arises from unpaid work that Plaintiff, a contractor, performed on the home of Defendant Messer. Plaintiff contracted with Defendants TNT Simmonds and J. Alexander Company to serve as a contractor for the fabrication and erection of structural steel for the build. Through this action, Plaintiff seeks foreclosure of the property and associated damages.

From April 12 to 17, 2023, the matter came on for jury trial on the sole cause of action for breach of contract against JACO. The jury rendered a verdict in favor of Ammco in the amount of $99,666. The verdict was reduced by $77,300 as a result of pretrial settlements with Defendants Messer and TNT Simmonds. Accordingly, on May 10, 2023, the Court granted judgment in favor of Ammco and against JACO in the amount of $22,366.

            Ammco submitted and served an initial Memorandum of Costs After Judgment (MOC) on July 11, 2023, which was rejected by the clerk on July 12, 2023. Ammco refiled the MOC on July 12. On July 27, 2023, JACO’s Wells Fargo account was levied in the amount of $82,977.56, which JACO contends is full satisfaction of the judgment. Ammco filed a second MOC on October 18, 2023, claiming total costs of $34,934.62. The Court considered JACO’s motion to tax costs as to both MOCs and granted the motion in the amount of $32,534.62.

            On December 13, 2023, JACO filed the instant motion to compel Ammco to file a notice of satisfaction of judgment. Ammco filed its opposition on January 3, 2024. JACO filed its reply on January 9, 2024.

LEGAL STANDARD

“If a money judgment has been satisfied, the judgment debtor . . . may serve personally or by mail on the judgment creditor a demand in writing that the judgment creditor do one or both of the following: (1) File an acknowledgment of satisfaction of judgment with the court. (2) Execute, acknowledge, and deliver an acknowledgment of satisfaction of judgment to the person who made the demand.” (Code Civ. Proc., § 724.050(a).) “If the judgment has been satisfied, the judgment creditor shall comply with the demand not later than 15 days after actual receipt of the demand.” (Id., § 724.050(c).) “If the judgment creditor does not comply with the demand within the time allowed, the person making the demand may apply to the court on noticed motion for an order requiring the judgment creditor to comply with the demand.” (Id., § 724.050(d).)

DISCUSSION

I. Whether the Judgment Has Been Satisfied

JACO argues that the July 27, 2023 levy of its bank account constituted full satisfaction of the judgment. JACO served a demand for satisfaction of judgment on October 23, 2023. (Carnegie Decl., Ex. A.) To date, Ammco has not filed a satisfaction of judgment.  

            “Costs are added to and become a part of the judgment . . . [u]pon the filing of an order allowing the costs pursuant to this chapter.” (Code Civ. Proc., § 685.090(a)(1).) Although JACO’s motion to tax costs was granted in major part, it was not granted in whole. The Court held that Ammco incurred reasonable attorneys’ fees of $2,400. (November 30, 2023 Order re Mtn. to Tax Costs 3:8-11.) These costs became part of the judgment. Since JACO has not paid the outstanding balance of $2,400, the judgment has not been fully satisfied, and Ammco is not yet required to file a notice of full satisfaction of judgment. However, JACO is entitled to a notice of partial satisfaction of judgment in light of the July 2023 levy. Ammco does not explain why it has refused to file a notice of partial satisfaction.   

II. Attorneys’ Fees for This Motion

            “In an action or proceeding maintained pursuant to this chapter, the court shall award reasonable attorney’s fees to the prevailing party.” (Code Civ. Proc., § 724.080.) JACO prevailed on this motion and reasonably requests $961.65. (See Carnegie Decl. ¶ 15.)

CONCLUSION

            JACO’s motion to compel the filing of a satisfaction of judgment is GRANTED. Ammco shall file a notice of partial satisfaction of judgment in the amount of $82,977.56. JACO is awarded attorneys’ fees in the amount of $961.65.

BACKGROUND

            On November 10, 2020, Plaintiff Ammco Ornamental Iron, Inc. (Ammco) filed this action against Defendants Jennifer Messer, TNT Simmonds, and J. Alexander Co. (JACO), asserting causes of action for (1) breach of contract, (2) foreclosure of mechanic’s lien, (3) violation of Civil Code section 8800, (4) breach of the implied covenant of good faith and fair dealing, and (5) common counts.

The complaint arises from unpaid work that Plaintiff, a contractor, performed on the home of Defendant Messer. Plaintiff contracted with Defendants TNT Simmonds and J. Alexander Company to serve as a contractor for the fabrication and erection of structural steel for the build. Through this action, Plaintiff seeks foreclosure of the property and associated damages.

From April 12 to 17, 2023, the matter came on for jury trial on the sole cause of action for breach of contract against JACO. The jury rendered a verdict in favor of Ammco in the amount of $99,666. The verdict was reduced by $77,300 as a result of pretrial settlements with Defendants Messer and TNT Simmonds. Accordingly, on May 10, 2023, the Court granted judgment in favor of Ammco and against JACO in the amount of $22,366. On June 28, 2023, the Court denied JACO’s motions for new trial and judgment notwithstanding verdict.

            Ammco filed a Memorandum of Costs After Judgment (MOC) on July 12, 2023, claiming $28,020.60. On October 18, 2023, Ammco filed another MOC claiming additional attorneys’ fees of $6,914.02 for the period of July 12, 2023 to October 3, 2023. JACO moved to tax both MOCs. On November 30, 2023, the Court granted the motion to tax in the amount of $32,534.62.

            On December 4, 2023, Ammco filed the instant motion for attorneys’ fees to recover the fees that were taxed. JACO filed its opposition on December 12, 2023. Ammco filed its reply on January 9, 2024.  

LEGAL STANDARD

 Code of Civil Procedure section 685.070 allows a judgment creditor to claim specified costs of enforcing a judgment. Among the costs allowed are “[a]ttorney’s fees, if allowed by Section 685.040.” (Id., § 685.070(a)(6).) Section 685.040 provides that “[a]ttorney’s fees incurred in enforcing a judgment are included as costs collectible under this title if the underlying judgment includes an award of attorney’s fees to the judgment creditor pursuant to subparagraph (A) of paragraph (10) of subdivision (a) of Section 1033.5.” (Id., § 685.040.) “The judgment creditor may claim costs authorized by Section 685.040 by noticed motion. The motion shall be made before the judgment is satisfied in full, but not later than two years after the costs have been incurred.” (Id., § 685.080(a).)  

DISCUSSION

            Ammco has filed this motion to cure a purported defect with its prior MOCs, which claimed post-judgment attorneys’ fees without a noticed motion. Ammco claims that the attorneys’ fees incurred on a prior fee motion, prior motion to tax costs, the new trial and JNOV motions, the recent motion to tax costs, and miscellaneous issues, constitute recoverable “non-enforcement” costs related to “preservation of the underlying judgment.” (Mtn. 4:5-18.) In total, Ammco seeks $33,400 through this motion.

            Ammco provides no legal support for its theory that it may recover “non-enforcement” or “non-collection” costs, through a noticed motion or otherwise. Section 685.070 provides for recovery of “costs of enforcing a judgment.” Section 685.040 allows recovery of “[a]ttorney’s fees incurred in enforcing a judgment.” In striking the majority of Ammco’s claimed costs, the Court found that the costs were “associated with litigating the underlying merits of the case instead of costs of enforcing the judgment.” (November 30, 2023 Order re Mtn. to Tax Costs 3:12-16.) Therefore, the defect with Ammco’s original claim for fees was not that Ammco failed to file a noticed motion, but that the costs were not incurred to enforce a judgment. The costs are no more related to enforcing a judgment now that Ammco has filed a noticed motion. In fact, the motion expressly admits that the costs were not related to enforcement or collection.

            Ammco cites Sanai v. Saltz (2009) 170 Cal.App.4th 746 for the proposition that “non-collection” post-judgment costs may be recovered by noticed motion. The court in Sanai made no such holding. In Sanai, “the memorandum of costs after judgment was essentially an improper attempt to recover attorney fees not authorized by Code of Civil Procedure section 685.070” because the underlying judgment did not award attorneys’ fees and the claimed fees did not relate to enforcement. (Id. at p. 781.) The court in Sanai did not base its holding on the plaintiff’s failure to file a noticed motion, nor did the court state that non-enforcement costs are recoverable under Sections 685.070 or 685.040 by noticed motion. “A court's opinion is not authority for a proposition not considered in it.” (People v. Anderson (2015) 232 Cal.App.4th 1259, 1275.)    

CONCLUSION

            Ammco’s motion for post-judgment attorneys’ fees is DENIED.