Judge: Elaine W. Mandel, Case: SC107178, Date: 2023-01-04 Tentative Ruling

Case Number: SC107178    Hearing Date: January 4, 2023    Dept: P

Tentative Ruling

Malibu General Contractors, Inc. v. William J. Hardy et al., Case No. SC107178

Hearing Date January 4, 2022

Motion to Vacate Renewal of Judgment – Supplemental Brief

On September 7, 2012, Malibu General Contractors won a judgment for $290,708.03 against now-deceased William J. Hardy. The judgment was modified on January 4, 2013 to provide for post-arbitration costs and attorney’s fees totaling $15,120.00, for a final award of $305,828.03. Plaintiff’s exhibit 14. On September 9, 2022, Malibu renewed the judgment for $605,914.83, with the new figure representing ten years of interest since the judgment was originally entered.

Jennifer Hardy, the alleged successor in interest to judgment debtor William Hardy, moves to modify or vacate the renewal of judgment. At an October 28, 2022 hearing, Hardy argued Malibu failed to show how the interest on the judgment was determined, and that renewed judgment fails to account for a payment of $50,000 made in August 2022. Malibu argued Hardy failed to prove she had standing to bring this motion, arguing she provided no evidence she is her late father William Hardy’s successor in interest.

The court continued for Jennifer Hardy to provide supplemental briefing establishing standing to bring the motion as well as the payments already made.

Evidentiary Objections

OVERRULED

Declarations

When a tender of full performance on a judgment debt has been made, refusal of that tender by the judgment creditor causes interest to cease to accrue. In re Marriage of Green (2006) 143 Cal.App.4th 1312, 1322.

Winifred L. Wilson provides a declaration stating that on December 23, 2012, she sent a check for $290,709.03 to Malibu. Wilson decl. pg. 5. If true, this would constitute a tender of full performance, halting the accrual of post judgment interest under Green. Wilson admits the check was never cashed, but presents a faxed document allegedly sent by Malibu’s custodian of records, Rosie W. Sahafi, acknowledging receipt of the check. The exhibit includes a copy of the check. See Wilson decl. Exhibit VIII.

Sahafi disputes the authenticity of Wilson’s exhibit VIII. Sahafi declaration ¶17. She states Malibu never received payment from Wilson or the judgment debtor and she never faxed an acknowledgment of receipt. She argues there are deficiencies with the documents in Exhibit VIII, arguing the documents are forged. Id. ¶¶17-18.

Sahafi is correct that the check and fax cover sheet in exhibit VIII are of low-quality. This could be a function of the documents’ age, rather than proof that they are forged. Further, the discrepancy between the $290,708.83 in the check and the judgment amount of $305,828.03 is explained by the fact that the check was sent before January 4, 2013, when post-arbitration fees were added to the judgment. The court does not agree with Sahafi that the date on the check appears altered, or that there is any significance to the fact that the memo is written in different ink compared to the rest of the check. No expert evidence on this issue is provided by either side.

Wilson’s documentary evidence and supporting declaration is compelling, and judgment creditors have not established Exhibit VIII is a forgery. A valid tender of the judgment amount was made in 2012, so interest stopped accruing on that date.

Judgment debtors have not proved the underlying judgment was invalid or that any portion of it has been satisfied. The judgment will be renewed in its full, original amount of $305,828.03, before interest accrued. DENIED in part and GRANTED in part, pursuant to the above findings.