Judge Latrice A. G. Byrdsong, Case Number: 17K04418, Date: 2024-03-14 Tentative Ruling

Judge: Latrice A. G. Byrdsong, Case: 17K04418, Date: 2024-03-14 Tentative Ruling

*** Please Note that the Judicial Officer Presiding in Department 25 is Commissioner Latrice A. G. Byrdsong ***
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Case Number: 17K04418 Hearing Date: March 14, 2024 Dept: 25

Hearing Date: Thursday, March 14, 2024

Case Name: TRES PUEBLOS HOMEOWNERS ASSOCIATION v. CLAUDIA QUIHUIS and AURELIO VECCHIOLA.

Case No.: LAM17K04418

Motion: Motion for Attorney’s Fees and Cost

Moving Party: Judgment Creditor Tres Pueblos Homeowners Association

Responding Party: None

Notice: NO

Tentative Ruling: Judgment Creditor Tres Pueblos Homeowners Association’s Motion for Attorney’s Fees and Cost is CONTINUED TO April 29, 2024 at 10:00 a.m. in Department 25 of the SPRING STREET COURTHOUSE.

At least 16 court days before the next scheduled hearing, Creditor must file and serve

supplemental papers addressing the issuance of service of the motion on Judgment Debtors

as well as provide a separate noticed request for judicial notice. Failure to do so will result

in the Motion being placed off calendar or denied.

SERVICE:

[X] Proof of Service Timely Filed (CRC, rule 3.1300) NO

[X] Correct Address (CCP §§ 1013, 1013a) NO

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) NO

OPPOSITION: None filed as of March 01, 2024 [ ] Late [X] None

REPLY: None filed as of March 07, 2024 [ ] Late [X] None

BACKGROUND

On April 24, 2017, Judgment Creditor Tres Pueblos Homeowners Association (“Judgment Creditor”) filed an Application for Entry of Judgment on Sister-State Judgment against Judgment Debtors Claudia Quihuis and Aurelio Vecchiola (collectively, “Judgment Debtors”). A judgment of $6,585.23 was entered in favor of Judgment Creditor on April 24, 2017. Following a motion for attorney’s fees and additional costs, the Court amended the judgment to $11,566.23 on October 3, 2018.

On August 17, 2020, Judgment Creditor filed a Motion for Attorney’s Fees and Costs to recover costs to enforce judgment incurred between June 11, 2018, and the filing of its motion. On March 25, 2021, the Court granted Judgment Creditor’s Motion for $2,698.00.

On June 30, 2022, Judgment Creditor filed a second Motion for Attorney’s Fees and Costs (the “Motion”) to recover costs to enforce judgment incurred between July 1, 2020, and June 29, 2022, in the amount of $2,589.26. On September 29, 2022, the Court granted Judgment Creditor’s Motion for $2,589.26.

On December 19, 2023, Judgment Creditor filed the instant (third) Motion for Attorney’s Fees and Costs (the “Motion”) to recover costs to enforce judgment incurred from June 29, 2022, to the present, in the amount of $2,536.49.

No opposition has been filed.

MOVING PARTY POSITION

Judgment Creditor prays for the Court to enter an award of $2,536.49 in attorneys’ fees and costs incurred post judgment. Judgment Creditor argues that pursuant to the underlying judgment, the CC&Rs (i.e., agreement between the parties), the Full Faith and Credit clause of the U.S. Constitution and Civ. Code § 685.040, Judgment Creditor is entitled to recover its attorney’s fees and costs incurred in this action.

OPPOSITION

No opposition has been filed.

REPLY

No reply has been filed.

ANALYSIS

I. Request for Judicial Notice

The motion is accompanied by a request for judicial notice of the (1) the Declaration of Covenants, Conditions and Restrictions and Easements for Tres Pueblos, Lots 1-595 and Common Areas"A-1" thru "A-4" recorded in the Pima County, Arizona Recorder's Office on July 8, 2005 as Instrument No. 20051310872 labeled as “Exhibit 1” (2) the Judgement entered in the Pima Consolidated Justice Court, in Pima County, Arizona, entitled Tres Pueblos Homeowners Association v. Claudia Quihuis and Aurelio Vecchio/a with case number CV15-009496 labeled as “Exhibit 2”; and (3) the Notice of Entry of judgement on Sister-State Judgement entered in the Los Angeles County Superior Court with the case number 17K04418 and labeled as “Exhibit 3.”

Judgment Creditor’s request for judicial notice is DENIED because Judgment Creditor has not provided proof of service indicating that the requests were properly served on Judgment Debtors. Moreover, the Court notes that the request is improperly filed as it is filed with the motion instead of being filed separately. Therefore, the Court denies the request to take judicial notice.

II. Legal Standard

A prevailing party is 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).)

III. Discussion

Here, the Court notes that Judgment Creditor has not filed Proof of Service indicating that Judgment Debtor was served with the moving papers either personally or by mail. Moreover, Judgment Creditor improperly files its request for judicial notice as part of the motion instead of as a separately filed noticed motion. Thus, for this reason the Court CONTINUES the hearing on the instant Motion to April 29, 2024 at 10:00 a.m.

IV. Conclusion

Judgment Creditor Tres Pueblos Homeowners Association’s Motion for Attorney’s Fees and Costs is CONTINUED TO April 29, 2024 at 10:00 a.m. in Department 25 of the SPRING STREET COURTHOUSE.

At least 16 court days before the next scheduled hearing, Creditor must file and serve supplemental papers addressing the issuance of service of the motion on Judgment Debtors as well as provide a separately noticed request for judicial notice. Failure to do so will result in the Motion being placed off calendar or denied.

Moving party is ordered to give notice.