Judge: Latrice A. G. Byrdsong, Case: 19STCP04556, Date: 2023-11-16 Tentative Ruling

*** Please Note that the Judicial Officer Presiding in Department 25 is Commissioner Latrice A. G. Byrdsong ***
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Case Number: 19STCP04556    Hearing Date: November 16, 2023    Dept: 25

Hearing Date:                         Thursday, November 16, 2023

Case Name:                             BAILEY COMMONS CONDOMINIUM v. SILVA

Case No.:                                19STCP04556

Motion:                                   Motion for Attorney’s Fees

Moving Party:                         Plaintiff Bailey Commons Condominium

Responding Party:                   None as of November 14, 2023

Notice:                                    OK

Tentative  Ruling:  Plaintiff’s Motion for Attorney’s Fees is GRANTED in the amount of $2,541.93 pursuant to CCP §685.040.          

BACKGROUND

            On October 21, 2019, Plaintiff Bailey Commons Condominium filed an Application for Entry of Judgment on Sister State Judgment against Defendant Alejandro Silva.  Plaintiff sought entry of judgment in California based on an Arizona state judgment entered against Defendant Silva on January 17, 2011 and renewed in Arizona on January 15, 2016. 

            Judgment was entered on October 31, 2019 against Defendant Silva in the principal amount of $4,600.62, interest on the judgment in the amount of $2,428.18 and filing fees in the amount of $225.  On November 23, 2019, Notice of Entry of Judgment on Sister-State Judgment was personally served on Defendant Silva. 

MOVING PARTY POSITION

            Plaintiff moves for an award of $2,541.93 in post-judgment attorney’s fees and costs pursuant to CCP §685.040.  Plaintiff argues the underlying Arizona judgment awarded it attorney’s fees and costs, the underlying contract (the CC&Rs) obligated Defendant to pay Plaintiff’s fees and costs incurred in collecting delinquent assessments.  Plaintiff argues the fees sought were incurred from December 7, 2021 to the present, within the statutory two-year limit. 

            Plaintiff argues the fees and costs incurred are also reasonable.  Plaintiff argues that after December 7, 2021, Plaintiff has had to search for assets owned by Defendant, draft a notice of ruling and draft this motion.  Plaintiff argues the requested fees and costs in the amount of $2,541.39 is reasonable.      

OPPOSITION

            None as of November 14, 2023. 

REPLY

            None as of November 14, 2023. 

ANALYSIS

Request for Judicial Notice

Plaintiff’s request for judicial notice is DENIED as to Exhibit 1.  The CC&Rs of Bailey Commons Condominium do not qualify as judicially noticeable public records that are not reasonably subject to dispute.  Plaintiff is not asking that the Court judicially notice the recordation of the CC&Rs.  Plaintiff is asking that the Court take judicial notice of the attorney’s fee provision therein as legal grounds to recover fees.

Plaintiff’s request for judicial notice is GRANTED as to Exhibits 2 and 3.  The Judgment entered in Arizona against Defendant and the Notice of Entry of Judgment filed in this action are both court records subject to judicial notice under Evidence Code §452.

Plaintiff entitled to post-judgment fees and costs pursuant to CCP §685.040

            CCP §685.040 provides for recovery of post-judgment attorney’s fees.  CCP §685.040 states, “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.”  (CCP §685.040.) 

            “[T]here are two requirements before a motion for an award of postjudgment attorney fees may be awarded as costs: (1) the fees must have been incurred to “enforce” a judgment; and (2) the underlying judgment had to include an award for attorney fees pursuant to Code of Civil Procedure section 1033.5, subdivision (a)(10)(A), which provides that attorney fees may be awarded when authorized by contract.”  (Jaffe v. Pacelli (2008) 165 Cal.App.4th 927, 934 935 (judgment creditor’s fees and costs incurred in connection with obtaining dismissal of judgment debtor’s bankruptcy qualified as action to enforce judgment).)

            Plaintiff incurred fees and costs in post-judgment collection efforts from December 7, 2021 through August 17, 2023 in the amount of $2,541.93, including the instant motion for fees.  (Motion, Baillio Dec., ¶¶5-19, Ex. A.)  Plaintiff establishes that the fees and costs requested were incurred to enforce the judgment entered in this action. 

            Plaintiff also establishes that it was awarded fees and costs in the underlying Arizona judgment in the amount of $1,015 in fees and $186 in costs.  (Request for Judicial Notice, Ex. 2.)  Plaintiff establishes the underlying judgment included an award of fees per CCP §1033.5. 

Fees requested are reasonable

            The Court’s objective is to award attorney 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.4^th 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, supra, 24 Cal.4th at 1134.) The lodestar method is based on the factors, as relevant

to the 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 was appropriate

when duplicative work had been performed. (Thayer v. Wells Fargo Bank, N.A. (2001) 92

Cal.App.4th 819.)

            Plaintiff’s attorney’s fees are based on the following time spent by the identified attorneys:

(1) Amundsen—1.4 hours @ $275/hr for a total of $385;

(2) Cooper—.2 hours @ $375/hr for a total of $75;

(3) Baillio—.8 hours @ $325/$375/hr plus two flat fees of $275 for preparation of a notice of satisfaction of both the AZ and CA judgments for a total of $820;

(4) Baillio (instant motion)—1.9 hrs @ $375/hr plus $61.65 in costs for a total of $712.50

            Plaintiff’s fees also include time spent by support staff:

(1) Castle—.5 hrs @ $150/hr for a total of $75

(2) Banks—.6 hrs @ $150/hr for a total of $90

            The requested attorney’s fees are reasonable for the work performed based on the documentation provided.  (Motion, , Baillio Dec., ¶¶5-19, Ex. A.) 

            This is Plaintiff’s third motion for attorney’s fees and costs pursuant to CCP §685.040.  Plaintiff previously obtained an award of post-judgment fees and costs (1) on August 26, 2020 in the amount of $2,833.72 and $613.72 in costs for work performed from July 2, 2019 through April 6, 2020;  and (2) on April 7, 2022 in the amount of $1,862.50 in fees and $283.88 in costs for work performed between April 6, 2020 and December 7, 2021.  Counsel has been engaged in collection efforts in California for four years.  Counsel also testifies that he prepared two notices of satisfaction of judgment and charged Plaintiff $275 for them.  (Motion, Baillio Dec., ¶9.)  At hearing, Counsel must explain the status of Plaintiff’s collection post-judgment collection efforts, whether the judgment has been satisfied and whether a notice of satisfaction of judgment will be filed soon.

CONCLUSION

            For the reasons set forth herein, the Court grants Plaintiff’s Motion for Attorney’s Fees.

Counsel for  Plaintiff is directed to serve and electronically submit an Amended Proposed Judgment for the Court’s approval and signature within 10-days of this Court’s order.