Judge Katherine Chilton, Case 19STCP05549 2023-02-14 Tentative Ruling

Judge: Katherine Chilton, Case: 19STCP05549, Date: 2023-02-14 Tentative Ruling

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Case Number: 19STCP05549 Hearing Date: February 14, 2023 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 GRANTED in the amount of $4,281.25 in attorney’s fees and $699.59 in costs, for a total of $4,980.84.

SERVICE:

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

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

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

OPPOSITION: None filed as of February 8, 2023. [ ] Late [X] None

REPLY: None filed as of February 8, 2023. [ ] 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” or “Debtors”) in the amount of $3,219.90 (“Judgment”).

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

On September 30, 2021, 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, 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.

On December 13, 2022, the Court noted that Creditor had filed and served a defective Notice of Motion and ordered Creditor to correct the Notice. (12-13-22 Minute Order.) The Court also ordered Creditor to provide proof that Debtors had been served at the correct address. (Ibid.) Moreover, the Court noted that Creditor had not filed proof of service demonstrating Debtors were served with the domesticated Judgment and scheduled an Order to Show Cause.

Following the Court’s December 13, 2022, Order, Creditor filed an Amended Notice of Motion and Proof of Service. (12-14-22 Amended Notice; 12-14-22 Proof of Service by Mail.)

On January 10, 2023, Creditor filed Applications for Service by Publication as to Debtors Lisa and John Doe; however, both filings were rejected by the Court. (1-10-23 Applications for Publication; 1-17-23 Notices of Rejection.)

On January 18, 2023, Creditor filed Notice of Acknowledgement of Receipt, signed by Debtor Lisa Smith, of the Notice of Entry of Judgment on Sister-State 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.)

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

a. Notice and Service Requirements

On December 13, 2022, the Court noted that Creditor has filed and served a defective Notice of Motion containing the address for the Stanley Mosk Courthouse, instead of the Spring Street Courthouse. (12-13-22 Minute Order.) Furthermore, Creditor had filed Proof of Service indicating that Debtors were served with the Motion at 10225 South 6th Avenue, Inglewood, California 90303, even though the last known address for Debtors is listed as 3678 W. Scribner Lane, Inglewood, California, 90305. (Ibid.; 5-31-22 Proof of Service.) The Court continued the hearing on the Motion and ordered Creditor to correct the Notice of Motion and serve all moving papers at the correct address for Debtors. (12-13-22 Minute Order.) The Court also noted that Creditors had not filed proof that Debtors were served with the Domesticated Judgment and set an Order to Show Cause Re: Why Sanctions Should Not be Imposed for Failure to File Proof of Service of Domesticated Judgment, scheduled for February 14, 2023. (Ibid.)

Following the Court’s December 13, 2022, Order, Creditor filed an Amended Notice of Motion on December 14, 2022, which lists the correct address of the courthouse and the date of the upcoming hearing. Creditor has also filed Proof of Service indicating that Debtors have been served with the Amended Notice and Motion at 3678 W. Scribner Lane, Inglewood, CA 90305, the last known address for Debtors. (Am. Notice p. 9.)

Finally, on January 18, 2023, Creditor filed Notice of Acknowledgement of Receipt, signed by Debtor Lisa Smith, of the Notice of Entry of Judgment on Sister-State Judgment.

The Court finds that Creditor has complied with all service requirements for the Motion.

b. Attorney’s Fees and Costs

Here, the Judgment from the underlying case awarded attorney’s fees and costs. (RJN: Ex. 2.) The Declaration of Homeowner Benefits and Covenants, Conditions and Restrictions, also allows for attorney’s fees and costs. (RJN: Ex. 1, Arts. 4.1, 10.19.) Thus, Judgment Creditor is entitled to attorney’s fees and costs in enforcing the Judgment under Code of Civil Procedure § 685.040.

Judgment Creditor seeks to recover attorney’s fees and costs expended between July 1, 2020, and May 17, 2022, in the amount of $8,372.09 and submits the declaration of Counsel Baillio, in support of its request. (Mot. pp. 3, 6; Baillio Decl.) Baillio states that, as of the date of the instant Motion, “Judgment has not been satisfied” and Creditor seeks to recover fees and costs within the two-year limit as permitted by statute. (Mot. p. 5, Baillio Decl. ¶ 4.)

Creditor seeks $7,672.50 in attorney’s fees expended to “(i) locate possible addresses to attempt serve notice of entry of judgment; (ii) draft and attempt to obtain application for service by publication; (iii) draft this motion; (iv) review, oppose, and appear at hearing on motion to vacate judgment; (v) review minute entry for motion to vacate judgment in which judgment creditor prevailed; (vi) telephone conference with judgment debtor.” (Baillio Decl. ¶ 5.) During the period between July 1, 2020, and May 17, 2022, Attorney Baillio spent a total of 6.4 hours in collection efforts billed at a rate of $300.00 per hour before January 1, 2022, and $325.00 per hour thereafter. (Ibid. at ¶¶ 6, 9.) Attorney Amundsen spent 12.6 hours on this matter billed at $275.00 per hour, and $300.00 per hour after January 1, 2022. (Ibid. at ¶¶ 6-7.) Attorney Laymon spent 2.4 hours at a billing rate of $325.00 per hour, plus a flat fee of $750 for attending the hearing on the motion to vacate judgment. (Ibid. at ¶¶ 6, 8.) Attorney Baillio spent an additional 1.5 hours, billed at $325.00 per hour, drafting the instant Motion for Attorney’s Fees and Costs and supporting documents, as well as $61.65 in filing fees and $15 in fees to appear telephonically. (Ibid. at ¶ 13.) He anticipates spending 0.4 hours, billed at $325.00 per hour, to attend the hearing on the Motion. (Ibid.) Fees also include 0.4 hours of paralegal time billed at $125.00 per hour. (Ibid. at ¶ 12.) Counsel has attached a detailed billing statement documenting the extensive worked performed toward collection efforts. (Ibid. at ¶ 15, Ex. A.)

In reviewing the billing record, the Court finds that some of the hours spent are excessive for the relatively simple tasks completed by experienced attorneys. For example, the Court finds the number of hours spent on tasks related to the motion to vacate judgment, totaling approximately 11.6 hours, is excessive. (See Ex. A.) Furthermore, the history bill reflects 2.5 hours billed for drafting a motion for attorney’s fees on August 19, 2021, and 1.5 hours billed for the same motion by a different attorney on May 17, 2022. (Ibid.) Thus, the Court finds attorney’s fees in the amount of $4,281.25 to be reasonable.

Creditor also seeks $699.59 in costs for filing, service, and other fees which were reasonable and necessary to enforce the judgment. (Ibid. at ¶ 17.) These fees include filing fees for two applications for publication, opposition to Debtor’s motion, proof of service, and supplemental opposition, two service fees for attempting to serve domesticated judgment, and fees to electronically monitor Debtors’ account with the Association. (Ibid.) The Court finds these costs to be reasonable.

Accordingly, Judgment Creditor’s request for attorney’s fees and costs is GRANTED in the amount of $4,281.25 in attorney’s fees and $699.59 in costs, for a total of $4,980.84.

V. Conclusion & Order

For the foregoing reasons,

Moving party is ordered to give notice.