Judge: David Sotelo, Case: BC496587, Date: 2022-09-07 Tentative Ruling
Case Number: BC496587 Hearing Date: September 7, 2022 Dept: 40
MOVING PARTY: Plaintiff The Golden
1 Credit Union.
Plaintiff The Golden 1 Credit Union brings this Motion for
Attorney’s Fees pursuant to Code of Civil Procedure sections 685.070 and
685.040 on the grounds that The Golden 1 incurred $21,980.00 in attorney’s fees
and $3,195.41 in costs opposing and defeating Defendant Christopher Jordan’s
July 16, 2021 motion to set aside default and default judgment, which were
respectively entered against Jordan on June 14, 2013 and July 13, 2013.
After review of the parties’ papers and evidence, the Court
GRANTS, in Part, Golden 1 Credit Union’s Motion for Attorney’s Fees and Costs
in the amount of $22,445.41, comprised of $19,200 in reasonable attorney’s
fees—calculated at a rate of $350 per hour times 55 hours—and $3,195.41 in
reasonable costs and expenses.
On or about September 17, 2011, Defendant Christopher M.
Jordan purchased a 2012 Chevrolet Camaro (“Subject Vehicle”) subject to monthly
payment installments. The sales agreement for the Vehicle was later assigned to
Plaintiff The Golden 1 Credit Union. Jordan defaulted on payments, prompting The
Golden 1 Credit Union to initiate this action on November 29, 2012. The
Complaint and Summons were served on Defendant Jordan on December 29, 2012 by substituted
service. Based on nonresponse from Jordan, the Golden 1 Credit Union was able
to secure Entry of Default against Jordan on June 14, 2013 and Default Judgment
in the amount of $67,336.24 against Jordan on July 13, 2013.
On July 16, 2021, Jordan moved to set aside the default and
default judgment against him on the grounds that Jordan had never lived or had
any connection with the address where substituted service was made and on the
grounds that Jordan only learned of this lawsuit on July 15, 2021. The Court
denied the motion to set aside on January 12, 2022.
The Golden 1 Credit Union now brings an opposed February 14,
2022 Motion for Attorney’s Fees and Costs, seeking $21,980.00 in total
attorney’s fees and $3,195.41 in total costs incurred opposing / defeating
Defendant’s motion to set aside on the grounds that the successful opposition
to the motion to set aside amounted to enforcement of a judgment within the
meaning of Code of Civil Procedure sections 685.070 and 685.040, which jointly permit
recovery of attorney’s fees as costs for parties enforcing judgments.
Preliminary Considerations: The Court briefly notes
that Code of Civil Procedure section 128.5 is irrelevant for the purposes of
this discussion. In his Opposition, Jordan appears to argue that fees are not
recoverable by The Golden 1 Credit Union because The Golden 1 seeks fees based
on an apparent bad faith litigation tactic by Jordan—i.e., filing the motion to
set aside default and default judgment—and that under those circumstances, The
Golden 1 should have challenged the motion to set aside on bad faith grounds
and allowed Jordan to withdraw the motion instead of now seeking fees against
Jordan. (See Opp’n, 3:15-4:5.)
Jordan mischaracterizes the Motion before the Court. This
Motion for Attorney’s Fees is grounded firmly in Code of Civil Procedure
sections 685.070, subd. (a)(6) and 685.040, not section 128.5 (see Mot.,
3:20-5:2, 6:9-15.) More specifically, The Golden 1 brings this Motion for
Attorney’s Fees based on the theory that its defense of the Default Judgment
entered by this Court on July 13, 2022, as against the July 16, 2021 motion to
set aside by Jordan, entitles The Golden 1 to attorney’s fees and costs
pursuant to Code of Civil Procedure sections 685.070 and 685.040, NOT on a
theory that Jordan failed to withdraw a frivolous motion, thus entitling The
Golden 1 to fees. This challenge by Jordan to the Motion for Attorney’s Fees
thus fails.
Next, to the extent Jordan challenges service of this Motion
for Attorney’s Fees, the Court finds service was not deficient against
Defendant Jordan. (See Opp’n, 4:1-2 [“… The Golden 1 Credit Union never served
its motion …”].) The February 14, 2022 Proof of Service accompanying this
Motion shows that service was made on both Jordan and his limited purpose
counsel, William J. Campbell, on February 10, 2022 via mail. (Feb. 14, 2022
Proof of Service, 1:20-2:23.)
Last, the Court admonishes Plaintiff The Golden 1 Credit
Union for filing a Reply with a 16-page Memorandum of Points and Authorities,
where the statutory limit is ten pages. (See Cal. Rules of Court, rule 3.1113,
subd. (d).)
Legal Standard: A prevailing party is entitled to
recover costs as a matter of right. (Code Civ. Proc., § 1032, subd. (a)(4),
(b).) Attorney’s fees are recoverable as costs when authorized by contract,
statute, or law. (Code Civ. Proc., § 1033.5, subd. (a)(10).) A judgment
creditor is entitled to the reasonable and necessary costs of enforcing a
judgment, including attorney’s fees. (Code Civ. Proc., §§ 685.070, subd. (a)(6)
[attorney’s fees recoverable as costs as provided in section 685.040], 685.040
[fees recoverable as costs when enforcing judgment].) Fees that are incurred
for the purposes of “maintain[ing], preserv[ing], and protect[ing] the
enforceability of a judgment” qualify as recoverable costs under section
685.040. (Jaffe v. Pacelli (2008) 165 Cal.App.4th 927, 938.)
The Court begins this inquiry “with the ‘lodestar,’ i.e.,
the number of hours reasonably expended multiplied by the reasonable hourly
rate.” (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095.) From there,
the “lodestar figure may then be adjusted [according to a multiplier
enhancement] based on consideration of factors specific to the case, in order
to fix the fee at the fair market value for the legal services provided.” (Ibid.)
Relevant multiplier factors include “(1) the novelty and difficulty of the
questions involved, (2) the skill displayed in presenting them, (3) the extent
to which the nature of the litigation precluded other employment by the
attorneys, [and] (4) the contingent nature of the fee award.” (Ketchum v.
Moses (2001) 24 Cal.4th 1122, 1132.)
No specific findings reflecting the court’s calculations for
attorney’s fees are required; the record need only show that the attorney’s
fees were awarded according to the “lodestar” or “touchstone” approach. (Rebney
v. Wells Fargo Bank (1991) 232 Cal.App.3d 1344, 1349.) The Court has broad
discretion to determine the amount of a reasonable attorney’s fee award, which
will not be overturned absent a “manifest abuse of discretion, a prejudicial
error of law, or necessary findings not supported by substantial evidence.” (Bernardi
v. County of Monterey (2008) 167 Cal.App.4th 1379, 1393-94.)
Analysis: The Golden 1 Credit Union seeks “$21,980.00
in total attorney’s fees and $3,195.41 in total costs opposing and defeating
Defendant [Jordan]’s Motion to Set Aside Judgment” pursuant to Code of Civil
Procedure sections 685.070, subdivision (a)(6), and 685.040. (Fees Mot., 12:1-2.)
The $21,980.00 in attorney’s fees sought by The Golden 1 were
calculated at an “hourly rate of $350.00” for the two lawyers (Daniel Burbott
and Duane Tyler) who worked as Plaintiff’s Counsel (Fees Mot., 13:3; Mot.,
Burbott Decl., ¶ 5) and at an “hourly rate of $100.00” per hour for an unnamed
paralegal (Fees Mot., Burbott Decl., ¶ 6). However, the billing records
provided by The Golden 1 only show time entries by Burbott and Tyler and no
paralegals. (Compare Mot., Burbott Decl., ¶¶ 5-6, with Ex. AA [billing records
showing 73.6 hours of work by Plaintiff’s Counsel].) Under these circumstances,
the Court finds that Plaintiff seeks $21,980.00 in attorney’s fees solely for
the work performed by Burbott and Tyler, at a rate of $350.00 per hour, thus yielding
a sought-after recovery of 62.8 hours of work by Plaintiff’s Counsel and no
paralegals.
On Opposition, Jordan argues (1) that “to charge $350.00 an
hour is wholly excessive” without providing a suggested fee rate and (2) that
The Golden 1 Credit Union spent an excessive amount of time in challenging
Jordan’s July 16, 2021 motion to set aside default and default judgment,
providing a short list of challenges to the costs and the grounds for the
challenge. (Fees Opp’n, 4:29-6:12.)
First, the Court notes that because Jordan’s motion to set
aside default and default judgment in this action would have invalidated the June
14, 2013 Default and July 13, 2013 Default Judgment against Jordan (see Jul.
16, 2021 Mot.), The Golden 1’s Opposition to Jordan’s July 16, 2021 motion was
an effort to “maintain, preserve, and protect the enforceability of [the July
13, 2013 Default] judgment” in this action. (Jaffe, supra, 165
Cal.App.4th at p. 938; see also Opp’n, 3:8-14 [arguing The Golden 1 did not
oppose the motion to set aside for the purpose of enforcing a judgment because
the motion to set aside sought to have this action heard on the merits, thus
implying that a default judgment is not a judgment for the purpose of sections
685.070 and 685.040]; cf. Reply 2:16-18 [arguing that The Golden 1 opposed the
motion to set aside to protect the July 13, 2013 Default Judgment].)
Pivoting to the fee request at issue, the Court next finds
that $350 per hour is a reasonable billing rate for Plaintiff’s Counsel, though
the Court admonishes The Golden 1 for failing to provide an adequate summary of
Plaintiff’s Counsels professional and academic background to support these rates.
(See Mot., Burbott Decl. generally.)
The Court also finds that The Golden 1 Credit Union’s
billing records only support a reasonable recovery of approximately 55 hours
expended in opposing to the Jordan motion to set aside because 62.8 hours of
work on a Motion to Set Aside is excessive, despite the entries in Plaintiff’s
Counsel’s billing records. (See Mot., Burbott Decl., Ex. AA.)
Last, the Court finds The Golden 1 Credit Union’s billing
records support the $3,195.41 sought in costs (see Mot., Burbott Decl., Ex. AA
[billing entries showing costs at the end of each billing record]), which Defendant
Jordan has not challenged in his Opposition. (See Opp’n generally.)
The Court thus GRANTS, in Part, The Golden 1 Credit Union’s
Motion for Attorney’s Fees and Costs in the total amount of $22,445.41,
comprised of $19,200 in reasonable attorney’s fees—calculated at a rate of $350
per hour times 55 hours—and $3,195.41 in reasonable costs and expenses.
The Court DECLINES The Golden 1 Credit Union’s invitation to
amend the July 13, 2013 Judgment according to their February 14, 2022 Proposed
Order, finding this Order sufficient for the purposes of enforcement of the
awards made herein. (See Fees Mot., 4:18-27; Fees Mot., Proposed Order.)
The Golden 1 Credit Union’s Motion for Attorney’s Fees and
Costs is GRANTED, in Part, in the amount of $22,445.41, comprised of $19,200 in
reasonable attorney’s fees—calculated at a rate of $350 per hour times 55
hours—and $3,195.41 in reasonable costs and expenses.
The Court DECLINES The Golden 1 Credit Union’s request to
amend the July 13, 2013 Judgment to add these fees to the Default Judgment.
Defendant Christopher Jordan is ORDERED TO REMIT $22,445.41
in favor of Plaintiff The Golden 1 Credit Union within 90 CALENDAR DAYS.