Judge: Elaine W. Mandel, Case: 21SMCP00018, Date: 2023-09-28 Tentative Ruling

Case Number: 21SMCP00018    Hearing Date: September 28, 2023    Dept: P

Tentative Ruling

Rafalian v. Elyaszadeh, et al., Case No. 21SMCP00018

Hearing Date September 28, 2023

Defendants Magasinn and Elyaszadeh and Yona Defendants’ Motion for Attorney’s Fees

Plaintiff Rafalian sued to recover three unpaid judgments from defendant Elyaszadeh, alleging the other defendants assisted Elyaszadeh in fraudulently transferring assets to avoid payment. On October 27, 2021, Judge Mark Young found all three judgments had been satisfied. Based largely on this ruling, the court issued judgment on the pleadings for defendants. Defendants seek prevailing party attorneys’ fees on the grounds that one of the judgments included an attorney’s fee provision.

Attorney’s fees incurred in enforcing a judgment are recoverable if the underlying judgment includes an award of attorney’s fees. Cal. Code of Civ. Proc. §685.040. This applies to later actions against third parties who were not named in the underlying suit which resulted in an attorney’s fees award. Cardinale v. Miller (2014) 222 Cal.App.4th 1020, 1025. Under Cal. Code of Civ. Proc. §1717, any attorney’s fees provision in a contract shall be treated as reciprocal, regardless of wording that purports to make the right unilateral. Orozco v. WPV San Jose, LLC (2019) 36 Cal.App.5th 375, 407.

Cal. Code of Civ. Proc. §685.040 states the “judgment creditor” is entitled to post-judgment fees and costs, including attorney’s fees, if the underlying judgment contains a provision awarding fees. Cal. Code of Civ. Proc. §685.040. Only “reasonable and necessary costs of enforcing a judgment” are recoverable. Id., emphasis added. The statute is unilateral, and only a judgment creditor seeking to enforce a judgment is entitled to post-judgment fees and costs. Defendants did not incur fees and costs “enforcing a judgment,” as required under the statute.  Under the terms of §685.040, they are not entitled to post-judgment attorney’s fees.

Defendants argue they are entitled to fees under Cal. Code of Civ. Proc. §1717’s bilaterality provision. That statute applies to actions based on a contract containing an attorney’s fees provision. This was not an action on a contract, but an attempt to recover a judgment that included attorney’s fees. Since defendants are not judgment creditors, and since their fees were not incurred in “enforcing a judgment,” and since this action derived from a judgment, not a contract with an attorney’s fees provision, defendants are not entitled to attorney’s fees under §685.040 or §1717. DENIED.