Judge: Katherine Chilton, Case: 20STCP03879, Date: 2022-10-12 Tentative Ruling

Case Number: 20STCP03879     Hearing Date: October 12, 2022    Dept: 25

PROCEEDINGS:      MOTION FOR ATTORNEY’S FEES

MOVING PARTY:   Judgment Creditor Biltmore Square Condominium Association, Inc.

RESP. PARTY:         None

MOTION FOR ATTORNEY’S FEES

(CCP § 685.040, et seq.)

TENTATIVE RULING:

Judgment Creditor Biltmore Square Condominium Association, Inc.’s Motion for Attorney’s Fees and Costs is GRANTED in the amount of $3,050.00 in attorney’s fees and $967.68 in costs, for a total of $4,017.68.

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 October 10, 2022                      [   ] Late                      [X] None

REPLY:                     None filed as of October 10, 2022                      [   ] Late                      [X] None

ANALYSIS:

I.                Background

On November 23, 2020, Judgment Creditor Biltmore Square Condominium Association, Inc. (“Judgment Creditor”) filed an Application for Entry of Judgment on Sister-State Judgment against Judgment Debtors Henry Chang and Jane Doe Chang (collectively, “Judgment Debtors”).  Judgment for $9,208.81, plus $1,880.81 in interest and $370.00 in filing fees was entered against Judgment Debtors on November 23, 2020.  (11-23-20 Judgment.)  Judgment Creditor filed Proof of Service by Publication on June 15 and June 27, 2022, after the Court granted Creditor’s Application for Publication.  (6-15-22 Proof of Publication; 6-27-22 Proof of Publication.)

On June 27, 2022, Judgment Creditor filed the instant Motion for Attorney’s Fees and Costs (“Motion”) to recover post-judgment costs.

No opposition has been filed.

II.              Request for Judicial Notice

Judgment Creditor requests that the Court take judicial notice of:

1)      The relevant portions of the Declaration of Condominium and Covenants, Conditions, and Restrictions and Grant of Easements for Biltmore Square Condominium recorded in the Maricopa County, Arizona Recorder’s Office on June 13, 2022, Instrument No. 2005-0795411.  (Ex. 1.)

2)     Judgment entered in the Arcadia Biltmore Justice Court, County of Maricopa, State of Arizona, entitled Biltmore Square Condominium Association, Inc. v. Henry Chang & Jane Doe Chang, husband and wife, Case CC2012-082771.  (Ex. 2.)

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

Here, the Judgment from the underlying case awarded attorney’s fees and provided for “all reasonable costs and attorneys’ fees incurred by Plaintiff after entry of this judgment in collecting the amounts awarded herein.”  (RJN, Ex. 2, ¶ 7.)  Furthermore, the Declaration of Covenants, Conditions, and Restrictions, allows for attorney’s fees and costs.  (RJN, Ex. 1, Art. 7, §§ 7.2.6, 7.6.)  Thus, Judgment Creditor is entitled to attorney’s fees and costs in enforcing the Judgment pursuant to Code of Civil Procedure § 685.040.  (RJN, Ex. 2, ¶ 7.)

Judgment Creditor seeks to recover fees expended between July 1, 2020, and June 27, 2022, in the amount of $4,312.68 and submits the declaration of Counsel Baillio, in support of its request.  (Mot. pp. 3, 6, Baillio Decl. ¶¶ 17, 20.)  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. 6, Baillio Decl. ¶ 4.)

Creditor seeks $4,312.68 in attorney’s fees and costs for having had to “(i) domesticate the Arizona Judgment to California; (ii) attempt service of notice of entry of judgment at several locations; (iii) apply for and serve notice by publication; (iv) discuss resolution with Debtors; (v) search for assets owned by Debtors to use to satisfy judgment; and (vi) draft this Motion.”  (Mot. pp. 6-7; Baillio Decl. ¶ 5, 17; Ex. A.)  During the period between July 1, 2020, and June 27, 2022, Baillio spent a total of 5.3 hours in collection efforts billed at a rate of $300.00 per hour before January 1, 2022, and $325.00 per hour thereafter.  (Baillio Decl., ¶¶ 6, 9.)  Attorney Amundsen spent three (3) hours on this matter billed at $275.00 per hour.  (Ibid. at ¶¶ 6-7.)  Attorney Lee spent 0.1 hours at a billing rate of $275.00 per hour.  (Ibid.)  An additional 1.5 hours of attorney time, billed at $325 per hour, was spent drafting the instant Motion, declaration, request for judicial notice, and other pertinent documents.  (Baillio Decl. ¶ 15.)  Counsel anticipates spending 0.4 hours, billed at $325 per hour, to attend the hearing on the Motion.  (Ibid.)  Fees also include 1.3 hours of paralegal time billed at $125.00 per hour. (Baillio Decl. ¶¶ 11-14.)

            Creditor also seeks $967.68 in costs.  (Baillio Decl. ¶¶ 17, 19, Ex. A.)

In reviewing the billing record, the Court finds some of the hours spent are excessive for the relatively simple tasks completed by experienced attorneys.  For example, the Court finds 2.5 hours, billed on July 22, 2021, excessive for drafting an application for service by publication and reviewing efforts to serve Defendants.  (See Ex. A.)  Furthermore, on January 5, 2021, Counsel Baillio listed his billing rate as $350.00 per hour, while his billing rate was $300.00 per hour prior to January 1, 2022.  (Ibid.)  Thus, the Court finds attorney’s fees in the amount of $3,050.00 to be reasonable.

The Court finds costs in the amount of $967.68 to be reasonable.

Accordingly, Judgment Creditor’s request for attorney’s fees and costs is GRANTED in the amount of $3,050.00 in attorney’s fees and $967.68 in costs, for a total of $4,017.68.

V.             Conclusion & Order

For the foregoing reasons,

Judgment Creditor Biltmore Square Condominium Association, Inc.’s Motion for Attorney’s Fees and Costs is GRANTED in the amount of $3,050.00 in attorney’s fees and $967.68 in costs, for a total of $4,017.68.

Moving party is ordered to give notice.