Judge: H. Jay Ford, III, Case: SC122980, Date: 2023-08-31 Tentative Ruling

Case Number: SC122980    Hearing Date: August 31, 2023    Dept: O

  Case Name:  Prado, et al. v. Stoytchev, et al.

SUBJECT:                 (1) SUPPLEMENT TO MOTION FOR CONTRIBUTION FILED ON 5-9-23

                                    (2) MOTION TO CORRECT MEMORANDUM OF COSTS NUNC PRO TUNC

MOVING PARTY:   (1) and (2) Defendant Orlin Dobreff, Administrator for the Estate of Darin Stoytchev

RESP. PARTY:         (1) Defendant Alesia Cook

                                    (2) Plaintiffs Prado, et al.

TENTATIVE RULING

(1)       Defendant Orlin Dobreff’s Supplement to Motion for Contribution filed on 5-9-23 is DENIED, WITHOUT PREJUDICE. GRANTED.  Defendant’s RJN is GRANTED. 

            Defendant Dobreff moves for contribution from Defendant Cook pursuant to CCP §882.  Dobreff must establish that (1) Stoytchev and Cook were judgment debtors on a judgment for which they were jointly liable, (2) Stoytchev satisfied more than his share of that judgment; and (3) Cook satisfied less than her due proportion of the judgment.  CCP §882. 

            On 6-1-23, the Court denied the motion for contribution pursuant to CCP §882 based on (1) Defendant’s failure to establish that a judgment for attorney’s fees and costs had been entered against Defendant Stoytchev, Defendant Cook and Defendant HOA jointly and severally, (2) Defendant’s failure to establish that an acknowledgment of satisfaction of judgment was filed or to provide any evidence that he paid the $181,492.50 in fees and (3) Defendant’s failure to demonstrate that his motion was timely filed within 30 days after full satisfaction of judgment.  With the exception of defect (2), defects (1) and (3) are no longer an issue.

            I.  Doberoff establishes existence of judgment awarding $181,492.50 in fees to Plaintiffs and against Defendants Stoytchev, Cook and HOA jointly and severally

            An order awarding attorney’s fees to Plaintiffs in the amount of $181,492.50 was entered on 9-30-20 and an abstract of judgment issued based on that order.  See Defendant Dobreff’s RJN, Ex. 5.  Defendant Dobreff establishes that an order imposing a judgment for attorney’s fees against Defendant Stoytchev, Cook and the HOA jointly and severally.  Id. 

            II.  Defendant Dobreff fails to establish that the Estate has paid the $181,492.50 attorney’s fee award in full  

            Defendant still fails to submit any admissible evidence establishing full payment of the $181,492.50 attorney’s fee award, nor have the Plaintiffs filed an acknowledgment of satisfaction of judgment.  Defendant Dobreff’s RJN does not include any evidence of payment of the fees by the Estate of Stoychev, e.g. a receipt of payment, cancelled check or order granting Plaintiffs’ creditor’s claim in the amount of $408,200. 

            In the prior motion, Defendant Dobreff established that Plaintiffs submitted a creditor’s claim against the Stoychev Estate for $408,200, which included the full $181,492.50 attorney’s fee award imposed against Stoychev, Cook and the HOA.  See Motion for Contribution filed on 5-9-23, Dec. of S. Barilich, Ex. A, Creditor’s Claim filed in 22STPB05722 on 10-12-22, p. 2. 

            However, in support of the prior motion, Defendant Dobreff did not submit any evidence that Plaintiffs’ creditor’s claim against the Estate was accepted and paid.  Instead, counsel Barilich testified without foundation, “As the Estate did have some property, upon the sale of the property, the Judgment was satisfied wholly out of the Decedent’s Estate, notwithstanding the fac that the co-Judgment Debtor, Alesia Cook, is liable for 62% of the claim.”  See Motion for Contribution filed on 5-9-23, Dec. of S. Barilich, ¶5.  Barlich is counsel of record in this action for the Estate, not the executor or personal representative of the Estate.  Id. at ¶1.  Barilich failed to attach any evidence of the sale of the property or payment of Plaintiffs’ full creditor’s claim out of the proceeds from the sale of that property or other funds.  Barilich also testified that the Probate Court issued an order on 2-9-23 authorizing her to pursue the prior motion for contribution but failed to attach that order.  Id. at ¶6.

            Dobreff’s prior motion for contribution also attached a table of Cook’s proportionate share of liability.  Id. at ¶5, Ex. B.  The attached table lacked foundation.  The table also failed to include the HOA as a judgment debtor on the attorney’s fee award.

            Thus, in his prior motion for contribution, Dobreff failed to establish the Estate’s payment of the full amount of attorney’s fees.  Dobreff established that Plaintiffs submitted a creditor’s claim against the Estate for the full amount of fees but he failed to establish the outcome of that creditor’s claim—was it accepted and paid or rejected?  Dobreff also failed to submit any evidence substantiating Barilich’s claim that the full amount of the creditor’s claim was paid from the sale proceeds of property owned by the Estate. 

            Dobreff’s full payment of the attorney’s fees judgment would also be evidenced by Plaintiffs’ filing of a full acknowledgement of satisfaction and judgment.  Plaintiffs did not file such an acknowledgment but they recorded one on 6-23-23, as evidenced by their RJN in support of their opposition to the Motion to Nunc Pro Tunc.  See Plaintiff’s RJN ISO to Motion to Correct Memo of Costs Nunc Pro Tunc, Ex. 1.  Plaintiffs must file the acknowledgment of full satisfaction with the Court in order for the Court to enter satisfaction of judgment.  See CCP §§724.020 and 724.040.  Dobreff also failed to present the recorded acknowledgment with this “Supplement” to the prior Motion to Compel Contribution

            Dobreff’s renewed or “supplemental” motion does not cure this lack of evidence.  The supplemental motion is not supported by any evidence other than the RJN, which does not include any evidence of full payment. 

            IV.  Parties are not allowed to relitigate the attorney’s fees award

            Defendant Cook filed an opposition to this motion and the prior motion challenging the amount of attorney’s fees awarded to Plaintiffs.  Defendant Stoychev sought to reallocate the joint and several judgment of attorney’s fees against himself, Cook and the HOA.  The 9-30-20 Order awarding fees in the amount of $181,492.50 is final.  Parties cannot challenge any aspect of the award, including the amount or the imposition of fees jointly and severally against the three Defendants, in connection with this motion to compel contribution.  The time to appeal that award has also expired. 

(2) Defendant Dobreff’s Motion to Correct Memorandum of Costs Nunc Pro Tunc is DENIED.  Plaintiff’s RJN is GRANTED.

            Defendant Dobreff moves to correct Plaintiffs’ memorandum of costs filed on 3-9-20.  Doberoff argues the memo of costs erroneously included $146,690 in Receiver’s Fees as “Other” costs in Item 16.  Dobreff asks that these Receiver’s Fees be stricken nunc pro tunc pursuant to CCP §473(d) as a clerical error.  However, the Cour Clerk did not prepare the memorandum of costs.  The nunc pro tunc procedure is reserved for clerical errors of the Court Clerk.  If Defendant Dobreff/Stoychev wanted to strike the Receiver’s Costs from Plaintiffs’ memorandum of costs, he was required to file a motion to tax costs within the statutory deadline under CRC Rule 3.1700(b)(1), 15 days after service of the costs memorandum.  No such motion to tax costs was ever filed and the failure to file such a motion waived any objection to the costs memo.  See Douglas v. Willis (1994) 27 Cal.App.4^th 287, 290; Briggs v Elliott (2023) 92 Cal.App.5^th 543, 553 (“[A] court has a ‘mandatory’ duty to allow such costs where, as here, the judgment debtor does not move to tax costs in a timely manner. (Lucky United Properties Investment, Inc. v. Lee (2010) 185 Cal.App.4th 125, 146, 110 Cal.Rptr.3d 159.) “There are no exceptions to this rule.” (Ibid.).   

            The request to nunc pro tunc the memo of costs prepared and filed by Plaintiffs is DENIED.