Judge John J. Kralik, Case 19BBCV00929 2022-12-09 Tentative Ruling

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Superior Court of California

County of Los Angeles

Department B

Plaintiff Woodhill Ventures, LLC dba Big Sugar Bakeshop (“Plaintiff”) is a small business bakery. Plaintiff alleges that Defendant Ben “Ben Baller” Yang (“Defendant”) made numerous profane, libelous, and slanderous comments on social media and his podcast accusing Plaintiff of putting Drugs/RX prescription pills on his son’s birthday cake.

The operative complaint, filed October 17, 2019, alleges causes of action for: (1) libel; (2) slander; and (3) unfair business practices.

On March 28, 2022, the Court granted Plaintiff’s motion for attorney’s fees pursuant to CCP § 425.16(c)(1) in the amount of $59,805 on the basis that Defendant’s special motion to strike Plaintiff’s complaint was frivolous and filed for the purposes of delaying the case. Section 425.16(c)(1) states in relevant part: “a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney's fees and costs. If the court finds that a special motion to strike is frivolous or is solely intended to cause unnecessary delay, the court shall award costs and reasonable attorney's fees to a plaintiff prevailing on the motion, pursuant to Section 128.5.”

On April 5, 2022, the Clerk of the Court issued a Writ of Execution (Money Judgment) for Plaintiff and against Defendant in the amount of $59,845.00.

On September 26, 2022, Plaintiff filed an ex parte application for a return of the writ of execution and issuance of a new writ of execution and an ex parte application for a turnover order.

The ex parte applications came for hearing on September 27, 2022. The applications were not opposed at that time. The Court noted that Defendant did not appear at the hearing. The Court denied without prejudice the ex parte application re issuance of a new writ, but allowed Plaintiff to bring the motion on October 28, 2022 and to proceed on its present papers or to renew the motion with new and additional authority. The Court denied without prejudice the ex parte application re turnover order to renewal on regular notice.

This matter came for trial. On November 4, 2022, the jury found in favor of Plaintiff and awarded actual damages of $55,000, assumed damages of $692,000, and $660,000 in punitive damages against Defendant.

On September 30, 2022, Plaintiff filed a motion for issuance of a new writ of execution. The Court will consider this as the operative moving papers. In the motion, Plaintiff states that it is proceeding on its ex parte application papers, filed on September 26, 2022, and attaches a copy of the application with the moving papers. The Court is not in receipt of an opposition brief. On December 2, 2022, Plaintiff filed a reply brief.

On September 30, 2022, Plaintiff filed a motion for turnover order. The Court is not in receipt of an opposition brief.

CCP § 680.230 defines “judgment” as “a judgment, order, or decree entered in a court of this state.” CCP § 680.270 defines “money judgment” to be “that part of a judgment that requires the payment of money.”

CCP § 699.510(a) states in relevant part: “[A]fter entry of a money judgment, a writ of execution shall be issued by the clerk of the court, upon application of the judgment creditor, and shall be directed to the levying officer in the county where the levy is to be made and to any registered process server. … A separate writ shall be issued for each county where a levy is to be made. Writs may be issued successively until the money judgment is satisfied, except that a new writ may not be issued for a county until the expiration of 180 days after the issuance of a prior writ for that county unless the prior writ is first returned.”

“While California's Enforcement of Judgments Law (EJL) provides that the word ‘judgment’ means ‘a judgment, order or decree entered in a court of this state’ (§ 680.230), litigants do not have license to substitute the word ‘order’ everywhere the word ‘judgment’ appears in the EJL, regardless of the circumstances or statutory intent. The ostensible purpose of the broad definition of ‘judgment’ in section 680.230 is to permit an order awarding fees to be enforced under the EJL where there is no judgment.” (Lucky United Properties Investment, Inc. v. Lee (2010) 185 Cal.App.4th 125, 143–144.)

Plaintiff argues that following the Court’s March 28, 2022 order, Defendant has failed to pay the attorney’s fees. As of September 26, 2022, Plaintiff argues that this “sanctions judgment” is now $82,684.36 (including interest). In the reply brief, Plaintiff argues that this amount is now $88,704.37 and that the sanctions judgment should be separate from the trial judgment so that Plaintiff can seek attorney’s fees with enforcing sanctions (as Plaintiff admits there does not appear to be a right to fees for enforcing the trial judgment re defamation).

Here, the Court entered the order granting Plaintiff attorney’s fees on March 28, 2022. This order awarding attorney’s fees falls under the broad definition of “judgment” pursuant to CCP § 680.230. (See Gilman v. Dalby (2021) 61 Cal.App.5th 923, 932 [“And the purpose section 680.230’s broad definition of ‘judgment’ is in part to ‘continue[ ] the effect of former Section 1007’ [citation] which provided: ‘Whenever an order for the payment of a sum of money is made by a court pursuant to the provisions of this code, it may be enforced by execution in the same manner as if it were a judgment.’”] [internal quotation marks and citations omitted].)[1] Here, the broad definition of “judgment” may include an “order” awarding attorney’s fees because there is no judgment entered in this case as of yet. (See Gilman, supra, 61 Cal.App.5th at 934 [“But here, in contrast, there was no judgment that directed money to be paid to Gilman; there was only an order. And in the absence of a judgment, under Lucky’s logic, employing section 680.230’s broad definition of ‘judgment’ would further section 680.230’s ‘ostensible purpose ... to permit an order awarding [money] to be enforced under the EJL where there is no judgment.’”].) As such, the order awarding money may be enforced under the EJL.

Judgment has not yet been entered in this case following trial. Thus, the motion for the issuance of a new writ is granted. The Clerk of the Court is directed to renew and enter a new writ of execution in support of the attorneys’ fees order. Plaintiff should prepare an appropriate order directed to the Clerk of Court for signature by the Court.

(a) If a writ of execution is issued, the judgment creditor may apply to the court ex parte, or on noticed motion if the court so directs or a court rule so requires, for an order directing the judgment debtor to transfer to the levying officer either or both of the following:

(1) Possession of the property sought to be levied upon if the property is sought to be levied upon by taking it into custody.

(2) Possession of documentary evidence of title to property of or a debt owed to the judgment debtor that is sought to be levied upon. An order pursuant to this paragraph may be served when the property or debt is levied upon or thereafter.

(b) The court may issue an order pursuant to this section upon a showing of need for the order.

(c) The order shall be personally served on the judgment debtor and shall contain a notice to the judgment debtor that failure to comply with the order may subject the judgment debtor to arrest and punishment for contempt of court.

Plaintiff filed a motion, requesting that the Court enter a turnover order against Defendant. Specifically, Plaintiff seeks an order requiring Defendant to turnover his Dragon Tourbillon RM watch, Rolex watches, 2022 Tesla Plaid car, 2021 Mercedes Delano RV, 2019 McLaren Senna car, and/or 2021 Porsche Cayenne Turbo S car pursuant to CCP § 699.040 to satisfy the $59,805 in sanctions awarded to Plaintiff on March 28, 2022. Plaintiff argues that the sanctions have not been satisfied by Defendant such that with the costs of enforcement and interest, the amount is $82,684.36 as of September 26, 2022.[2]

Plaintiff argues that Defendant has failed to pay the sanctions amount, failed to appear at judgment debtor examinations, and failed to produce a verified list of his real and personal property that are valued at $100,000 and over. Plaintiff provides exhibits showing that Defendant testified at his deposition that he owned 4 cars (2019 McLaren Senna, 2022 Tesla Plaid, 2021 Porsche Cayenne Turbo S, and 2021 Mercedes Benz Delano). (Sosnick Decl., Ex. 3.) Plaintiff also provides Defendant’s Twitter posts showing that he owned a Dragon Tourbillon RM watch and two Rolex watches. (Id., Ex. 4.) According to this Twitter post, Defendant stated that his Dragon Tourbillon RM watch was valued at $5M alone and that he had 81 more watches. In his other Twitter post, he stated that he has two Rolex watches that are worth more than $475,000.

While Defendant may have certain personal property and assets that could be used to satisfy the sanctions amount, ordering Defendant to turn over all of this variegated personal property in response to the existing sanctions order would impose an undue and unnecessary burden, including upon the levying officer. At this time, the Court will order the turnover of two Rolex watches to the levying officer. If a subsequent appraisal ends up showing that the value of these watches is insufficient to satisfy the existing judgment, the Court will consider a request for turnover of additional property.

As such, the motion for a turnover order is granted in part as stated in this order.

Plaintiff’s motion for issuance of a new writ of execution is granted. The Clerk of the Court shall renew and enter a new writ of execution based on the Court’s March 28, 2022 order granting attorney’s fees in the amount of $59,805 to Plaintiff and against Defendant.

Plaintiff’s motion for a turnover order granted in part as detailed above. To the extent the motion also sought adverse inference jury instructions from Defendant, the request is moot as the jury trial has already concluded in this matter.

[1] For example, as stated by the Court of Appeal in Alioto Fish Co. v. Alioto (1994) 27 Cal.App.4th 1669:

Section 680.230 of the California Code of Civil Procedure specifically defines “judgment” to include an “order ... entered in a court of this state.” Therefore the June 5, 1991, Fee Order is a “judgment” within the meaning of California Code of Civil Procedure section 680.230. In Marin County, the clerk, pursuant to California Code of Civil Procedure section 668.5 is not required to enter judgments in a judgment book. Instead, “the date of filing the judgment with the clerk shall constitute the date of its entry.” (Cal.Code Civ.Proc., § 668.5.) (County of Los Angeles v. Ranger Ins. Co. (1994) 26 Cal.App.4th 61, 62, 31 Cal.Rptr.2d 257.) The June 5, 1991, Fee Order was therefore an “order ... entered in a court of this state.” (Cal.Code Civ.Proc., § 680.230.)

(Alioto Fish Co. v. Alioto (1994) 27 Cal.App.4th 1669, 1686–1687 [emphasis added]; see also Newland v. Superior Court (1995) 40 Cal.App.4th 608, 615 [“Weil and Brown observe that many attorneys seem to be unaware that monetary sanction orders are enforceable through the execution of judgment laws. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial 3 (The Rutter Group 1994) ¶¶ 9:344.21, 9:344.22, p. 9(1)-92.) These orders have the force and effect of a money judgment, and are immediately enforceable through execution, except to the extent the trial court may order a stay of the sanction. (See §§ 680.230, 680.270, 699.510, subd. (a); Jones v. Otero, supra, 156 Cal.App.3d at p. 759.)”].)

In addition, California Rules of Court, Rule 8.278(c)(3) states that “An award of costs [on appeal] is enforceable as a money judgment.” (See Apex LLC v. Korusfood.com (2013) 222 Cal.App.4th 1010, 1016 [“An award of costs on appeal is enforceable as a money judgment (Cal. Rules of Court, rule 8.278(c)(3)), as is an order awarding attorney fees….”].)

[2] The Court notes that the moving papers incorporate the ex parte application papers. The papers not only included a request for a turnover order, but also for adverse inference jury instructions. This additional request for adverse inference jury instructions is moot as the matter already proceeded to jury trial and was concluded.