Judge Kerry Bensinger, Case Number: 21STCV06832, Date: 2024-03-07 Tentative Ruling

Counsel may submit on the tentative ruling by emailing Dept. 31 before 8:30 the morning of the hearing. The email address is smcdept31@lacourt.org. Please do not call the court to submit on the tentative. Please do not submit to the tentative ruling on behalf of the opposing party. Please do not e-mail the Court if you plan to appear and argue.

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The tentative rulings authored by this court reflect that the court has read and considered all pleadings and evidence timely submitted to the court in connection with the motion, opposition, and reply (if any). Because the pleadings were filed, they are part of the public record.

Oral argument is not an opportunity to simply regurgitate that which a party set forth in its pleadings. Nor, is oral argument an opportunity to "make a record" when there is no court reporter present and the statements and arguments of counsel are already part of the record because they were set forth in the pleadings. Finally, simply because a party or attorney disagrees with the court's analysis and ruling or is not satisfied with it does not necessarily warrant oral argument when no new arguments will be articulated.

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**Tentative rulings on Motions for Summary Judgment will only be available for review in the courtroom on the day of the hearing.

On February 22, 2021, Plaintiff, Fabiola Vera, filed this action against Defendants Lucas Auto Center Inc. (“Lucas Auto”), Hudson Insurance Company, and Does 1 through 75. On April 5, 2021, Plaintiff filed the First Amended Complaint (“FAC”), alleging, in relevant part, violations of the Consumer Legal Remedies Act and the Song-Beverly Consumer Warranty Act.

On October 13, 2021, after Plaintiff dismissed Hudson Insurance Company and Doe Defendants, the court entered default judgment against Lucas Auto in the sum of $30,805.32, consisting of $4,936.00 in damages, $16,918.36 as a Song-Beverly penalty, $7,409.00 in attorneys’ fees, and $1,046.96 in costs.

On May 23, 2022, after several attempts, Plaintiff obtained a writ of execution. On the same day, Lucas Auto filed a motion to set aside the default and default judgment.

On July 26, 2023, Lucas Auto filed an ex parte application to advance the hearing date for its motion to set aside the default and default judgment and to stay enforcement of the judgment. Plaintiff opposed the application. The court granted the application in part. The court did not advance the hearing date as requested but issued a stay of Plaintiff’s writ of execution pending resolution of Lucas Auto’s motion.

On August 25, 2022, the court denied Lucas Auto’s motion to set aside the default and default judgment. Lucas Auto indicated it would appeal the ruling. Accordingly, the court did not lift the stay on Plaintiff’s writ of execution. The court set a status conference and set a briefing schedule regarding its authority to stay the judgment while Lucas Auto’s appeal was filed and pending. Plaintiff’s brief was due by September 12, 2022. The status conference was scheduled for September 22, 2022.

On September 12, 2022, Plaintiff filed her brief arguing why the court should not stay enforcement of the judgment.

On September 22, 2022, the court held the status conference. The court informed counsel that once a bond is posted the automatic stay will come into effect pursuant to CCP section 917.1.

On November 1, 2022, Lucas Auto posted the appeal bond which automatically stayed Plaintiff’s efforts to enforce the judgment.^{^[1]}

On October 10, 2023, Plaintiff filed this Motion for Post-Judgment Attorneys’ Fees and Costs which were incurred post-judgment.

The motion was heard on March 7, 2024. The court continued the matter and asked for additional briefing on the issue whether Plaintiff could recover attorneys’ fees incurred in bringing the motion (discussed herein as “Category 5”).

Code of Civil Procedure (CCP) section 685.040 states, in part, “The 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.) “[W]hen a fee-shifting statute provides the substantive authority for an award of attorney fees, any such fees incurred in enforcement of the judgment are within the scope of section 685.040.” (Conservatorship of McQueen (2014) 59 Cal.4th 602, 614.)

Costs authorized by Section 685.040 may be claimed by filing a memorandum of costs or via noticed motion before the judgment is satisfied in full but not later than two years after the costs have been incurred. (Code Civ. Proc., §§ 685.070, subd. (b), 685.080, subd. (a).) Allowed costs include, but are not limited to, those costs outlined in Section 685.070. (Code Civ. Proc., §¿685.080, subd. (a).) The notice of motion must describe the costs claimed, must state their amount, and must 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, and reasonable and necessary, and have not been satisfied.” (Code Civ. Proc., § 685.080, subd. (b).) The motion must be served personally or by mail. (Ibid.) The court must make an order allowing or disallowing the costs to the extent justified under the circumstances of that particular case. (Code Civ. Proc., § 685.080, subd. (c).)

“The judgment creditor is entitled to the reasonable and necessary costs of enforcing a judgment.” (Code Civ. Proc., § 685.040.) “[W]hen a fee-shifting statute provides the substantive authority for an award of attorney fees, any such fees incurred in enforcement of the judgment are within the scope of section 685.040.” (Conservatorship of McQueen, supra, 59 Cal.4th at p. 614.)

Here, Plaintiff was awarded a default judgment against Lucas Auto. (Minute Order, 10/13/21.) The award included $7,904.00 in attorneys’ fees as authorized under the Consumer Legal Remedies Act (Civ. Code § 1780, subd. (e)) and the Song-Beverly Consumer Warranty Act (Civ. Code § 1794, subd. (d)). (Id.) Plaintiff now seeks to recover a total sum of $13,000.26, consisting of $12,790.50 in attorney’s fees and $209.76 in costs which were incurred in efforts to enforce her judgment against Lucas Auto. Specifically, Plaintiff seeks to recover attorney fees for the following six categories: (1) obtaining a writ of execution and opposing a stay of enforcement, including Lucas Auto’s ex parte application to stay enforcement; (2) opposing Lucas Auto’s motion to set aside the default and default judgment, (3) notifying the court of changes to Plaintiff’s counsel’s contact information, (4) reviewing the case reassignment to the Honorable Serena R. Murillo, (5) the fees incurred in connection to this fees and costs motion and (6) appearing for the status conference regarding Lucas Auto’s appeal. (See Reply, pp. 3-4.)

Category 1: The court finds this category involves activity to enforce the judgment. Category One is recoverable.

Category 2: This category presents somewhat of a riddle: When are defensive acts considered acts of enforcement? Luckily, several courts have considered this issue in the context of enforcing judgments.

Lucas Auto relies primarily upon Conservatorship of McQueen, supra, 59 Cal.4th 602. Conservatorship of McQueen is distinguishable. In Conservatorship of McQueen, the California Supreme Court noted that “Section 685.040 … pertains solely to the recovery of costs and fees incurred ‘enforcing a judgment.’… defending a judgment on appeal is not an aspect of ‘enforcing’ it for purposes of Section 685.040.” (Id. at p. 63.)

Here, the issue presented does not involve the defense of an appeal. The rules on appeal are different, as discussed in Conservatorship of McQueen.

Instead, Plaintiff incurred fees to oppose Lucas Auto’s motion to set aside the default and default judgment. Plaintiff’s fees were spent to enforce its judgment in the same way the judgment creditor’s fees in Globalist Internet Technologies, Inc. v. Reda (2008) 167 Cal.App.4th 1267 (Globalist), were spent to enforce its judgment. In Globalist, the appellate court framed this issue and answered it as follows: “In this case, we are asked to consider whether attorney fees expended by a judgment creditor in successfully defending itself in a separate action filed against it by the judgment debtor, which had as its sole purpose the specific enforcement of an alleged agreement to settle the judgment debt at a substantial reduction, are attorney fees expended by the judgment creditor in enforcing the judgment. We conclude they are, and reverse the trial court’s postjudgment order taxing the judgment creditor’s postjudgment costs.” (Id. at pp. 1269–1270.) The Globalist Court stated:

As in Jaffe, Globalist’s right to recover attorney fees does not depend on the nature of the action or the forum in which the expenses were incurred. The inquiry compelled by section 685.040 is whether the attorney fees were incurred “in enforcing a judgment” containing an award of contract attorney fees. They were. The sole purpose of the specific performance action filed by Reda and IBI was to significantly decrease their unsatisfied judgment debtor obligations in this action. By the time Reda v. Globalist, 06CC02588, was filed, Reda and IBI owed Globalist over $444,600 (not including accrued interest) on this judgment. Their action sought specific performance of an alleged settlement of the judgment for $75,000 or about one-sixth of what was owed. Had Globalist not defended against the specific performance action, it would have lost substantial rights under the judgment in this case. Accordingly, the attorney fees it incurred in defense of the companion action were incurred in enforcing the judgment.

Similarly, in Slates v. Gorabi (2010) 189 Cal.App.4th 1210, 1215, the appellate court noted that when considering whether the fees were spent to enforce the action consideration should be given to the judgment debtor’s conduct. “More plausibly, the Legislature envisioned the propriety of an attorney fee award as turning on the judgment debtor's postjudgment conduct, with the Legislature intending that the judgment debtors possible liability for postjudgment fees serve as encouragement for the debtors cooperation in satisfying the judgment.” (Ibid.)

Here, Lucas Auto sought to overturn the default and the default judgment. As in Globalist, “had [Plaintiff] not defended against the specific performance action, it would have lost substantial rights under the judgment in this case.” (Globalist, supra, 167 Cal.App.4th at p. 1276.)

Categories 3, 4, and 6: The court does not award fees for these categories because the fees were not incurred in an effort to enforce the judgment.

The court continued the hearing to allow the parties an opportunity to brief issues related to whether attorney fees may be recovered for bringing a motion to recover post-judgment attorney fees. Plaintiff relies on Ketchum v. Moses (2001) 24 Cal.4th 1122 (Ketchum), Serrano v. Unruh (1982) 32 Cal.3d 621 (Serrano), and Lucky United Properties Investment, Inc. v. Lee (2010) 185 Cal.App.4th 125 (Lucky United) for the proposition that recoverable fees ordinarily include compensation for all hours reasonably spent, including those necessary to establish and defend the fee claim. None of the cases involve CFRA or Song-Beverly. Nonetheless, by analogy, the cases are helpful and confirm Plaintiff’s position. In Ketchum, the Supreme Court rejected Ketchum’s argument that awarding fees incurred in litigating the award of fees was an improper award of fees on fees. The California Supreme Court stated that “the Court of Appeal correctly rejected that argument: an award of fees may include not only the fees incurred with respect to the underlying claim, but also the fees incurred in enforcing the right to mandatory fees under Code of Civil Procedure section 425.16.” (Ketchum, supra, 24 Cal.4^th at p. 1141.) The California High Court went on to say, “Ketchum also asserts that Code of Civil Procedure section 685.040 precludes an award of ‘collection’ fees. He is incorrect. The statute provides that attorney fees incurred in enforcement efforts ‘are not included in costs collectible under this title unless otherwise provided by law.’ Under its provisions, a litigant entitled to costs for successfully enforcing a judgment is entitled to costs, but not attorney fees unless there is some other legal basis for such an award. Because Code of Civil Procedure section 425.16, subdivision (c) provides a legal right to attorney fees, they are a permissible item of costs. [Citation.]” (Id. at p. 1141, fn. 6.)

Here, Plaintiff is the prevailing party. There is no dispute CFRA and Song-Beverly statutes establish a legal right to attorney fees to the prevailing party. Plaintiff has brought a timely motion under Section 685.040 to recover attorney fees and other expenses related to enforcing the judgment against Defendant. Because Plaintiff is entitled to fees to enforce the judgment (as described above), Plaintiff, as described in Ketchum, is similarly entitled to “fees on fees.” Accordingly, the court awards attorney fees for Category 5.

As indicated above, Plaintiff is entitled to some award of attorney fees. Lucas Auto concedes as much. (See Opp., p. 3.) Further, Lucas Auto does not challenge the reasonableness of the Plaintiff’s counsel’s hourly rates. Rather, Defendant argues any such recovery should be capped to $732 by obliquely referring to Plaintiff’s post-judgment itemized billing sheet. (See Opp., p. 3; Plaintiff’s Compendium of Exhibits, Ex. 1.) Lucas Auto’s undeveloped challenge to the amount of attorney fees falls short. “[I]t is the burden of the challenging party to point to the specific items challenged [within the moving party’s verified billing invoice], with a sufficient argument and citations to evidence.¿ General arguments that fees claimed are excessive, duplicative, or unrelated do not suffice.”¿ (Lunada Biomedical v. Nunez (2014) 230 Cal.App.4th 459, 488.)¿¿

In the absence of a challenge to the hourly rates and having found Plaintiff is entitled to recover attorney fees as identified in Category 1, 2 and 5, the court finds $12,156.50 is a reasonable award of post-judgment attorney fees.

Plaintiff seeks $209.76 in costs. Lucas Auto does not challenge the requested costs.

Based on the foregoing, the motion for post-judgment attorney fees and costs is GRANTED. Plaintiff is awarded the total sum of $12,366.23, consisting of $12,156.50 in attorney fees and $209.76 in costs.

¿¿¿

¿ Kerry Bensinger¿¿

¿ Judge of the Superior Court¿

[1] Lucas Auto’s appeal was denied on February 21, 2024.