Judge: Katherine Chilton, Case: 22STCP00571, Date: 2023-04-20 Tentative Ruling

Case Number: 22STCP00571     Hearing Date: April 20, 2023    Dept: 25

PROCEEDINGS:      MOTION FOR ATTORNEY’S FEES AND COSTS

MOVING PARTY:   Plaintiff Spectrum Community Association

RESP. PARTY:         None

MOTION FOR ATTORNEY’S FEES AND COSTS

(CCP § 685.040)

TENTATIVE RULING:

Plaintiff’s Motion for Attorney’s Fees and Costs is GRANTED for attorney’s fees in the amount of $2,500.00 and costs in the amount of $947.56, for a total of $3,447.56.

SERVICE: 

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

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

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

OPPOSITION:          None filed as of April 17, 2023.               [   ] Late                      [X] None

REPLY:                     None filed as of April 17, 2023.               [   ] Late                      [X] None

ANALYSIS:

I.                Background

On February 17, 2022, this Court entered as Judgment a sister-state Judgment from the County of Maricopa, State of Arizona in favor of Spectrum Community Association aka Spectrum at Val Vista Community Association (“Plaintiff” or “Creditor”) and against Todd K. Malan and Jane Doe Malan (“Defendants,” “Debtors,” or “Malans”).

On March 11, 2022, Creditor filed a Memorandum of Costs After Judgment, Acknowledgment of Credit, and Declaration of Accrued Interest, that reflected accrued interest in the amount of $114.27.

On March 14, 2022, Creditor filed a Writ of Execution with the Court.

On December 13, 2022, Creditor filed the instant Motion for Attorney’s Fees and Costs, requesting “an award of at least $4,412.56 in Attorneys’ Fees and Costs incurred post-judgment.”  (Mot. p. 1.)

No opposition has been filed.

II.              Legal Standard

A prevailing party in entitled to recover costs, including attorney’s fees, as a matter of right.  (See Code Civ. Proc. §§ 1032(a)(4), 1032(b), 1033.5.)  Attorney’s fees are allowable as costs when authorized by contract, statute, or law.  (Code Civ. Proc. § 1033.5(a)(10).)

“The judgment creditor is entitled to the reasonable and necessary costs of enforcing a judgment.  Attorney’s fees incurred in enforcing a judgment are not included in costs collectible under this title unless otherwise provided by law.  Attorney’s fees incurred in enforcing a judgment are included as costs collectible under this title 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.”  (Code Civ. Proc., § 685.040.)

“The judgment creditor may claim costs authorized by Section 685.040 by noticed motion.  The motion shall be made before the judgment is satisfied in full, but not later than two years after the costs have been incurred.  The costs claimed under this section may include, but are not limited to, costs that may be claimed under Section 685.070 and costs incurred but not approved by the court or referee in a proceeding under Chapter 6 (commencing with Section 708.010) of Division 2.”  (Code Civ. Proc., § 685.080(a).)

“The 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.”  (Code Civ. Proc., § 685.080(b).)

The calculation of attorney’s fees in California begins with the “lodestar” method – multiplying the number of hours reasonably expended by the reasonable hourly rate.  A computation of time spent on a case and the reasonable value of that time is fundamental to a determination of an appropriate attorneys’ fee award.  The lodestar figure may then be adjusted, based on factors specific to the case, in order to fix the fee at the fair market value for the legal services provided.  (Serrano v. Priest (1977) 20 Cal.3d 25, 49.)  Such an approach anchors the trial court’s analysis to an objective determination of the value of the attorney’s services, ensuring that the amount awarded is not arbitrary.  (Ibid. at p. 48, fn. 23.)  After the trial court has performed the lodestar calculations, it shall consider whether the total award so calculated under all of the circumstances of the case is more than a reasonable amount and, if so, shall reduce the section 1717 award so that it is a reasonable figure.  (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095-1096.)

As explained in Graciano v. Robinson Ford Sales, Inc.:

“[T]he lodestar is the basic fee for comparable legal services in the community; it may be adjusted by the court based on factors including, as relevant herein, (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. [Citation.]  The purpose of such adjustment is to fix a fee at the fair market value for the particular action. In effect, the court determines, retrospectively, whether the litigation involved a contingent risk or required extraordinary legal skill justifying augmentation of the unadorned lodestar in order to approximate the fair market rate for such services. . . . This approach anchors the trial court's analysis to an objective determination of the value of the attorney's services, ensuring that the amount awarded is not arbitrary.” [Internal citations and internal quotation marks omitted.]

((2006) 144 Cal.App.4th 140, 154.)  “It is well established that the determination of what constitutes reasonable attorney fees is committed to the discretion of the trial court, whose decision cannot be reversed in the absence of an abuse of discretion.  [Citations.]  The value of legal services performed in a case is a matter in which the trial court has its own expertise. . . . The trial court makes its determination after consideration of a number of factors, including the nature of the litigation, its difficulty, the amount involved, the skill required in its handling, the skill employed, the attention given, the success or failure, and other circumstances in the case.  [Citations.]”  (Melnyk v. Robledo (1976) 64 Cal.App.3d 618, 623-624.)

No specific findings reflecting the court’s calculations are required.  The record need only show that the attorney fees were awarded according to the “lodestar” or “touchstone” approach.  The court’s focus in evaluating the facts should be to provide a fee award reasonably designed to completely compensate attorneys for the services provided.  The starting point for this determination is the attorney’s time records.  (Horsford v. Board of Trustees of Calif. State Univ. (2005) 132 Cal.App.4th 359, 395-397 [verified time records entitled to credence absent clear indication they are erroneous].)  However, California case law permits fee awards in the absence of detailed time sheets. (Sommers v. Erb (1992) 2 Cal.App.4th 1644, 1651; Dunk v. Ford Motor Co. (1996) 48 Cal.App.4th 1794, 1810; Nightingale v. Hyundai Motor America (1994) 31 Cal.App.4th 99, 103.)  An experienced trial judge is in a position to assess the value of the professional services rendered in his or her court.  (Ibid.; Serrano, 20 Cal.3d 25 at 49.)

III.            Request for Judicial Notice

Judgment Creditor requests that the Court take judicial notice of:

(1)   Exhibit 1 - Relevant portions of the Declaration of Covenants, Conditions, Restrictions and Easements for the Spectrum at Val Vista Gilbert, Arizona, recorded in the Maricopa County, Arizona Recorder’s Office on October 8, 2022, as Instrument No. 2002-1044802;

(2)   Exhibit 2 – Default Judgment entered in the Highland Justice Court, County of Maricopa, State of Arizona, entitled Spectrum Community Association v. Todd K. Malan and Jane Does Malan, Case No. TJ2015-004580;

(3)    Exhibit 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).)

IV.           Discussion

A.    Proof of Service

Plaintiff/Creditor has filed Proof of Service indicating that Defendant/Debtor was served with the moving papers by mail on December 13, 2022.  (12-13-22 Proof of Service.)  The Court finds that Defendant/Debtor was properly served.

B.    Attorney’s Fees

Plaintiff/Creditor seeks “an award of at least $4,412.56 in Attorneys’ Fees and Costs incurred post-judgment.”  (Mot. p. 1.)

The Court finds that Creditor is entitled to attorney’s fees pursuant to the Declaration of Covenants, Conditions, Restrictions and Easements, Articles 9.1 and 9.11, and the sister-state Judgment which awarded attorney’s fees and costs.  (RJN, Exs. 1-2.)

Plaintiff supports its request with a declaration of its counsel.  (See Baillio Decl.)

Plaintiff states that its Motion is timely because the Judgment has not been satisfied.  (Baillio Decl. ¶ 4.)  Furthermore, Plaintiff is requesting fees and costs incurred between November 11, 2021, and December 9, 2022.  (Ibid. at ¶ 13; Mot. p. 6.)

Plaintiff argues that the attorney’s fees and costs requested are “reasonable and necessary” since the attorneys in this case provided extensive legal services to pursue collection of the Judgment.  (Mot. p. 6.)  Plaintiff’s attorneys had to “(i) search for assets owned by Debtor to use to satisfy judgment; (ii) domesticate the Arizona Judgment to California; (iii) serve notice of entry of judgment, (iv) obtain a writ of execution and a wage garnishment; (v) draft memorandum of costs after judgment; (vi) draft subpoena duces tecum; and (vii) draft this Motion.”  (Baillio Decl. ¶ 5.)

To “preserve costs and fees” in pursuing collection of the Judgment, only three attorneys with extensive experience in collections cases have worked on the case – Penny L. Koepke, Kristopher L. Amundsen, and Austin Baillio.  (Baillio Decl. ¶ 6.)  Counsel Koepke’s hourly rate is $300 per hour, Counsel Amundsen’s hourly rate was $275 per hour before January 1, 2022, and $300 per hour thereafter, and Mr. Baillio’s hourly rate “was $325.00 per hour and then, after December 1, 2018[1], became $300.00 per hour.”  (Ibid.)  These rates are commensurate with those of other attorneys with similar levels of experience and specialization.  (Ibid. at ¶¶ 6, 10.)

            Between November 11, 2021, and December 9, 2022, Counsel Koepke spent 0.8 hours in collection efforts and billed a total of $240.  (Ibid. at ¶ 7.)  Counsel Amundsen spent 2.2 hours and billed a total of $612.50.  (Ibid. at ¶ 8.)  Counsel Baillio spent 3.4 hours in collection efforts and charged two flat fees of $450 for the writs of execution and earnings withholding orders, for a total amount of $1,995.  (Ibid. at ¶ 9.)  Moreover, Counsel Baillio spent 1.5 hours, at a rate of $325.00 per hour, drafting the instant Motion and accompanying papers and anticipates spending another 0.4 hours to attend the hearing on the Motion.  (Ibid. at ¶ 11.)  In total, Plaintiff’s requests $3,465.00 in attorney’s fees, expended between November 11, 2021, and December 9, 2022.  (Ibid. at ¶ 12.)  Counsel Baillio has attached an itemized billing statement demonstrating the legal work performed for Plaintiff in pursuit of collecting the Judgment.  (Ibid. at ¶ 13, Ex. A.)

The Court reviews counsel’s billing statement for tasks billed between November 11, 2021, and December 9, 2022, in pursuit of enforcing the Judgment.  (Ibid.; Ex. A.)  The Court considers factors such as counsel’s expertise, number of hours expended on each task, and whether each task was expended in pursuit of the Judgment.  The Court finds that Plaintiff’s request for $3,465 is slightly excessive.  For example, the instant Motion, regularly drafted by Counsel, does not warrant 1.5 hours of attorney time at a billing rate of $325.00.

For the foregoing reasons, the Court finds a reduced amount of $2,500.00 in attorney’s fees to be reasonable.

C.    Costs

Code of Civil Procedure § 685.070(b) states: “Before the judgment is fully satisfied but not later than two years after the costs have been incurred, the judgment creditor claiming costs under this section shall file a memorandum of costs with the court clerk and serve a copy on the judgment debtor. Service shall be made personally or by mail. The memorandum of costs shall be executed under oath by a person who has knowledge of the facts and shall state that to the person's best knowledge and belief the costs are correct, are reasonable and necessary, and have not been satisfied.”

Code of Civil Procedure 685.080(b) requires that: “The 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.”

Plaintiff requests costs in the amount of $947.56 through a noticed motion.  The request includes “filing fees, service fees, sheriff's fees, fees for writs of execution and wage garnishment orders, and background research fees.”  (Mot. p. 7; Baillio Decl. ¶ 15, Ex. A.) 

The Court finds Plaintiff’s request for costs to be reasonable and grants the request in the amount of $947.56.

V.             Conclusion & Order

For the foregoing reasons,

Plaintiff’s Motion for Attorney’s Fees and Costs is GRANTED for attorney’s fees in the amount of $2,500.00 and costs in the amount of $947.56, for a total of $3,447.56.

Moving party is ordered to give notice.