Judge: Katherine Chilton, Case: 19STCP05549, Date: 2022-12-13 Tentative Ruling

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Case Number: 19STCP05549     Hearing Date: December 13, 2022    Dept: 25

PROCEEDINGS:      MOTION FOR ATTORNEY’S FEES AND COSTS

MOVING PARTY:   Plaintiff/Judgment Creditor Trailwood at Indian School Homeowners Association

RESP. PARTY:         None

MOTION FOR ATTORNEY’S FEES AND COSTS

(CCP § 685.040, et seq.)

TENTATIVE RULING:

Plaintiff/Judgment Creditor Trailwood at Indian School Homeowners Association, Inc.’s Motion for Attorney’s Fees and Costs is CONTINUED to JANUARY 17, 2023 at 10:00 a.m. in Department 25 at the SPRING STREET COURTHOUSE.  At least 16 court days before the next scheduled hearing, Plaintiff/Judgment must file and serve supplemental papers addressing the errors discussed herein.  Failure to do so may result in the Motion being placed off calendar or denied.

The Court also sets an Order to Show Cause Re: Why Sanctions Should Not be Imposed for Failure to File Proof of Service of Domesticated Judgment, on January 17, 2023 at 10:00 a.m. in Department 25 at Spring Street Courthouse.

SERVICE: 

[X] Proof of Service Timely Filed (CRC, rule 3.1300)                 OK

[X] Correct Address (CCP §§ 1013, 1013a)                                                 UNCLEAR

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b))                     OK

OPPOSITION:          None filed as of December 7, 2022                        [   ] Late                      [X] None

REPLY:                     None filed as of December 7, 2022                        [   ] Late                      [X] None

ANALYSIS:

I.                Background

On October 2, 2013, in the Justice Court of White Tank Precinct, County of Maricopa, State of Arizona, the court entered a judgment for Judgment Creditor Trailwood at Indian School Homeowners Association, Inc. (“Plaintiff” or “Creditor”) and against Judgment Debtors Lisa D. Smith (“Lisa”) and John Doe Smith (“John Doe”), (collectively “Defendants” “Debtors”) in the amount of $3,219.90 ( “Judgment”).

Plaintiff/Creditor domesticated the Judgment in California on December 19, 2019.

On September 30, self-represented Debtor Lisa filed an ex parte application to set aside the Judgment.  The Court declined to hear the application on the basis that Defendant Lisa had failed to declare any irreparable harm, immediate danger, or any other basis upon which ex parte relief could be granted.  (9-30-21 Minute Order.)

Debtor Lisa filed a Motion to Vacate and Set Aside Judgment on November 4, 2021.  On March 15, 2022, the Court denied Debtor’s Motion.  (3-15-22 Minute Order.)

On May 31, 2022, Plaintiff/Creditor filed the instant Motion for Attorney’s Fees and Costs to recover post-judgment costs in the amount of $8,372.09.  (Mot. p. 1.)  No opposition has been filed.

Creditor has still not filed a proof of service demonstrating Debtors were served with the domesticated Judgment.

II.              Request for Judicial Notice

Judgment Creditor requests that the Court take judicial notice of

(1)   The relevant portions of the Declaration of Homeowner Benefits and Covenants, Conditions and Restrictions for Trailwood Units 1 and 2, recorded in Maricopa County, Arizona Recorder’s Office on May 6, 1998 as Instrument No. 19980374677;

(2)   The judgment entered in the White Tank Justice Court, County of Maricopa, State of Arizona, entitled Trailwood at Indian School Homeowners Association v. Lisa D. Smith and John Doe Smith;

(3)    Notice of Entry of Judgment on Sister-State Judgment entered in the instant action.

(Mot., RJN Exs. 1-3.)

Judgment Creditor’s request is GRANTED.  (Evid. Code., § 452(c), (d).)

III.            Legal Standard

The Court’s objective is to award attorney’s fees at the fair market value based on the particular action.  (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132.)  “The reasonable hourly rate is that prevailing in the community for similar work.” (PLCM Group v. Drexler (2000) 22 Cal.4th

1084, 1095.)  “‘[T]he fee setting inquiry in California ordinarily begins with the 'lodestar,' i.e., the

number of hours reasonably expended multiplied by the reasonable hourly rate . . . .’” (Ketchum

v. Moses (2001) 24 Cal.4th 1122, 1134.)  The lodestar method is based on several factors, as relevant

to each particular case: “(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, (4) the contingent nature of the fee award.”  (Id. at 1132.)  “The

‘‘experienced trial judge is the best judge of the value of professional services rendered in his

court, and while his judgment is of course subject to review, it will not be disturbed unless the

appellate court is convinced that it is clearly wrong.’’”  (Id.)  A negative modifier is appropriate

when duplicative work is performed.  (Thayer v. Wells Fargo Bank, N.A. (2001) 92 Cal.App.4th 819.)

Code of Civil Procedure, § 685.070(a) states in pertinent part: “The judgment creditor may claim under this section the following costs of enforcing a judgment: . . . (6) Attorney's fees, if allowed by Section 685.040.”  Code of Civil Procedure § 685.040 provides that a “judgment creditor is entitled to the reasonable and necessary costs of enforcing a judgment.”  Attorney’s fees incurred in enforcing a judgment are expressly excluded unless otherwise provided by law.  (Id.)  Attorney’s fees that are incurred in enforcing a judgment are collectible as costs “if the underlying judgment includes an award of attorney’s fees to the judgment creditor pursuant to subparagraph (A) of paragraph (10) of subdivision (a) of section 1033.5” which allows for attorney’s fees when authorized by contract.  (Id; Code Civ. Proc., § 1033.5(a)(10)(A).)

Code of Civil Procedure § 685.080(a) allows a Judgment Creditor to claim costs by noticed motion “before the judgment is satisfied in full, but not later than two years after the costs have been incurred.”  In addition, § 685.080(b) requires that:

“[t]he notice of motion shall describe the costs claimed, shall state their amount, and shall be supported by an affidavit of a person who has knowledge of the facts stating that to the person's best knowledge and belief the costs are correct, are reasonable and necessary, and have not been satisfied. The notice of motion shall be served on the judgment debtor. Service shall be made personally or by mail.”

IV.           Discussion

As a preliminary matter, the Court notes that Creditor has filed and served a defective Notice of Motion that contains the address for the Stanley Mosk Courthouse, instead of the Spring Street Courthouse, where the hearing on the Motion will take place.

Furthermore, Creditor filed Proof of Service indicating that Debtors were served at 10225 South 6th Avenue, Inglewood, California 90303.  (5-31-22 Proof of Service.)  However, the last known address for Debtors is listed as 3678 W. Scribner Lane, Inglewood, California, 90305.  Creditor is ordered to provide the Court with additional proof that Debtors were served at the right address.

For these reasons, the Court continues the hearing on the Motion for Attorney’s Fees and Costs.

The Court also notes that Creditor has still not filed proof of service demonstrating Debtors were served with the Domesticated Judgment.  On July 12, 2022, Creditor filed an Application for Publication for the third time, which was again denied by the Court for failure to provide evidence substantiating the need for service by publication and failure to submit separate applications as to each Defendants/Debtor.  (7-14-22 Notice of Rejection.)  Thus, the Court sets an Order to Show Cause Re: Why Sanctions Should Not be Imposed for Failure to File Proof of Service of Domesticated Judgment.

V.             Conclusion & Order

For the foregoing reasons,

Judgment Creditor Trailwood at Indian School Homeowners Association, Inc.’s Motion for Attorney’s Fees and Costs is CONTINUED to January 17, 2023 at 10:00 a.m. in Department 25 at the SPRING STREET COURTHOUSE.  At least 16 court days before the next scheduled hearing, Creditor must file and serve supplemental papers addressing the errors discussed herein.  Failure to do so may result in the Motion being placed off calendar or denied.

The Court also sets an Order to Show Cause Re: Why Sanctions Should Not be Imposed for Failure to File Proof of Service of Domesticated Judgment, on January 17, 2023 at 10:00 a.m. in Department 25 at Spring Street Courthouse.

Moving party is ordered to give notice.