Judge: Layne H. Melzer, Case: 2019-01074355, Date: 2023-07-27 Tentative Ruling
Defendant The Regents Of The University Of California
1. Motion for Costs Arising from Enforcement for The Costs Bills of $4,139.05
Exempt from Any Court Filings Fees Under Government Code Section 6103(A)
Plaintiff Shaun Lawrence
2. Motion to Tax Costs
Plaintiff and judgment debtor Shaun Lawrence’s motion to tax costs in the memorandum of costs after judgment filed by defendant and judgment creditor, The Regents of the University of California is granted. [ROA ##442, 452.]
Defendant Judgment Creditor, The Regents of the University of California’s motion for order awarding post-judgment costs is denied as untimely. The court did not consider Judgment Debtor’s unauthorized and untimely supplemental filing.
General Law for Recovery of Post-Judgment Enforcement Fees
A judgment creditor is entitled to the reasonable and necessary costs of enforcing a judgment. Civ. Proc. Code § 685.040.
Attorney’s fees incurred in enforcing a judgment are not included in costs collectible unless otherwise provided by law. Id. Attorney’s fees incurred in enforcing a judgment are included as collectible if the underlying judgment includes an award of attorney’s fees to the judgment creditor pursuant to Code Civ. Proc. § 1033.5(a)(10)(A). Section 1033.5(a)(10)(A) allows attorney’s fees as costs when authorized by contract.
In any event, for fees to be recovered “as of right” the judgment creditor need only file a memorandum of costs. Code Civ. Proc. §685.070.
(a) The judgment creditor may claim under this section the following costs of enforcing a judgment:
(1) Statutory fees for preparing and issuing, and recording and indexing, an abstract of judgment or a certified copy of a judgment.
(2) Statutory fees for filing a notice of judgment lien on personal property.
(3) Statutory fees for issuing a writ for the enforcement of the judgment to the extent that the fees are not satisfied pursuant to Section 685.050.
(4) Statutory costs of the levying officer for performing the duties under a writ to the extent that the costs are not satisfied pursuant to Section 685.050 and the statutory fee of the levying officer for performing the duties under the Wage Garnishment Law to the extent that the fee has not been satisfied pursuant to the wage garnishment.
(5) Costs incurred in connection with any proceeding under Chapter 6 (commencing with Section 708.010) of Division 2 that have been approved as to amount, reasonableness, and necessity by the judge or referee conducting the proceeding.
(6) Attorney's fees, if allowed by Section 685.040.
Code Civ. Proc., § 685.070.
Memorandum of Costs for § 685.070 costs: A judgment creditor claiming costs authorized as “of right” under CCP § 685.070 (¶ 6:34 ff.) “shall” file with the court and serve on the judgment debtor a Memorandum of Costs before the judgment is fully satisfied but not later than two years after the costs were incurred. [CCP § 685.070(b); see Gray1 CPB, LLC v. SCC Acquisitions, Inc. (2015) 233 CA4th 882, 897, 182 CR3d 654, 665—where judgment debtor tendered cashier's check for full judgment amount plus interest nearly two years after judgment, judgment creditor's motion for postjudgment costs for $3.1 million in attorney fees filed 12 days after tender but one day before cashing was untimely]
The Memorandum of Costs may be served on the judgment debtor either personally or by mail. [CCP § 685.070(b); see also David S. Karton, a Law Corp. v. Dougherty (2009) 171 CA4th 133, 147, 89 CR3d 506, 516—default judgment debtor entitled to notice of application for attorney fees (application treated as § 685.070 Memorandum of Costs)]
Cal. Prac. Guide Enf. J. & Debt Ch. 6A-5 §6:48].
To recover fees beyond the pre-approved statutory fees, a judgment creditor needs to bring a motion. Code Civ. Proc. §§685.040, 695.080.
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)(emphasis added).
The court shall make an order allowing or disallowing the costs to the extent justified under the circumstances of the case. Civ. Proc. Code § 685.080(c).
Motion for court order allowing “reasonable and necessary” costs: The judgment creditor must file a noticed motion to recover reasonable and necessary (discretionary) enforcement costs not described in CCP § 685.070(a) (¶ 6:34 ff.). As with a Memorandum of Costs, the motion must be filed before the judgment is fully satisfied but not later than two years after the costs were incurred. [CCP § 685.080(a); see Conservatorship of Ribal (2019) 31 CA5th 519, 526, 243 CR3d 177, 182; Wertheim, LLC v. Currency Corp. (2019) 35 CA5th 1124, 1134, 248 CR3d 211, 218—“In the context of a postjudgment motion for costs, the judgment is not satisfied until the judgment creditor has been paid”; Conservatorship of McQueen (2014) 59 C4th 602, 616, 174 CR3d 55, 66—motion for costs and attorney fees incurred in prosecuting separate fraudulent transfer action was untimely where filed 10 days after judgment debtor's check for final payment was honored]
The motion must specify the type and amount of costs claimed; and must be supported by affidavit or declaration under penalty of perjury (CCP § 2015.5) stating that the costs are correct, reasonable and necessary, and have not been satisfied. [CCP § 685.080(b)] (The motion may include costs covered by CCP § 685.070(a) if not previously taxed.)
The motion must be served on the judgment debtor personally or by mail.
Cal. Prac. Guide Enf. J. & Debt Ch. 6A-5 §6:52.
Application
Motion to Strike
The fees shown in Judgment Creditor’s memorandum of costs at line a.(8) are not statutory fees. This means they are not recoverable by way of a memorandum of costs.
To recover such fees, Judgment Creditor must bring a motion under Code Civ. Proc. § 685.080 and thus persuade the court that the fees are recoverable under section 685.040 as reasonable and necessary costs of enforcement.
Given the court’s ruling below on Judgment Creditor’s motion for costs, the court grants Judgment Debtor’s motion to strike as to the a.(8) costs on this basis.
Motion for Post Judgment Costs
The first, and potentially last, question is whether Judgment Creditor’s motion was filed on time.
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. . . .
Code Civ. Proc. § 685.080(a)(emphasis added).
Judgment Creditor argues its motion was filed before the judgment was satisfied because it was filed before Judgment Creditor was paid. [See Motion MPA at 3-4; Reply at 5-6.]
Judgment Creditor cites Conservatorship of McQueen (2014) 59 Cal.4th 602, 615 for the proposition that “payment” means either (1) the tender of cash or (2) the tender and acceptance of a certified check or similar instrument. [Motion MPA at 3-4.]
Section 685.080 requires that a motion for such costs be made
before the judgment is “satisfied in full.” (§ 685.080, subd. (a).) The time
limitation is “ ‘ “to avoid a situation where a judgment debtor has paid
off the entirety of what he [justifiably] believes to be his obligation in
the entire case, only to be confronted later with a motion for yet more
fees.” ’ ” (Gray1, supra, 233 Cal.App.4th at p. 891, 182 Cal.Rptr.3d
654.) Section 685.080 does not define the phrase “satisfied in
full,” but absent
some legislative indication to the contrary, of which there is none,
satisfaction requires payment.
Wertheim, LLC v. Currency Corp. (2019) 35 Cal.App.5th 1124, 1133.
(a) A money judgment may be satisfied by payment of the full amount required to satisfy the judgment or by acceptance by the judgment creditor of a lesser sum in full satisfaction of the judgment.
(b) Where a money judgment is satisfied by levy, the obligation of the judgment creditor to give or file an acknowledgment of satisfaction arises only when the judgment creditor has received the full amount required to satisfy the judgment from the levying officer.
(c) Where a money judgment is satisfied by payment to the judgment creditor by check or other form of noncash payment that is to be honored upon presentation by the judgment creditor for payment, the obligation of the judgment creditor to give or file an acknowledgment of satisfaction of judgment arises only when the check or other form of noncash payment has actually been honored upon presentation for payment.
Code Civ. Proc., § 724.010 (emphasis added. Compare subdivision (c) with subdivision (b)).
Under subdivision (c) of section 724.010:
“ ‘Payment to a judgment creditor is governed by the cases and statutes which govern commercial transactions.’ [Citation.] ... [T]hat means California Uniform Commercial Code section 3310[, which states:] ‘Unless otherwise agreed, if a certified check, cashier's check, or teller's check is taken for an obligation, the obligation is discharged to the same extent discharge would result if an amount of money equal to the amount of the instrument were taken in payment of the obligation.’ ” (Gray1 CPB, LLC v. SCC Acquisitions, Inc. (2015) 233 Cal.App.4th 882, 893-894, 182 Cal.Rptr.3d 654 (Gray1).) Therefore, for purposes of judgment satisfaction, “payment” means either (1) the tender of cash or (2) the tender and acceptance of a certified check or similar instrument. (See Conservatorship of McQueen (2014) 59 Cal.4th 602, 615, 174 Cal.Rptr.3d 55, 328 P.3d 46 (McQueen); Gray1, at pp. 892-893, 896, 182 Cal.Rptr.3d 654.)
In other words, because a judgment creditor has the right to demand payment in cash, an unaccepted noncash tender neither constitutes payment nor satisfies the judgment. (McQueen, supra, 59 Cal.4th at p. 615, 174 Cal.Rptr.3d 55, 328 P.3d 46; Gray1, supra, 233 Cal.App.4th at p. 894, 182 Cal.Rptr.3d 654.)
Wertheim, LLC v. Currency Corp. (2019) 35 Cal.App.5th 1124, 1132 (relying on McQueen and Gray1, which expressly relied on CCP 724.010(c). See 59 Cal. 4th at 615; 233 Cal App. 4th at 893).
In Wertheim, the funds to satisfy the judgment were on deposit with the court, but the judgment creditor could not obtain them:
Here, Insurer tendered a certified check or similar instrument
in December 2013, when it deposited appeal bond funds with department 39.
However, Wertheim never accepted the funds; it was prevented from doing so
when Currency disputed the amount due. Because Wertheim has not been paid,
the judgment has not been satisfied. Therefore, Wertheim's motion for
postjudgment costs, filed on March 10, 2016, was timely.
Wertheim, LLC v. Currency Corp. (2019) 35 Cal.App.5th 1124, 1134.
Here, in contrast to the cases cited above, the question of satisfaction is not determined by Code Civ. Proc. § 724.010(c), but by section 724.010(b). It is not clear, then, that the UCC would apply:
“ ‘Performance of an obligation for the delivery of money only,
is called payment.’ [Citation.] Payment to a judgment creditor is governed by
the cases and statutes which govern commercial transactions. [Citation.]” (Long v. Cuttle Construction Co.,
supra, 60 Cal.App.4th at p. 837, 70 Cal.Rptr.2d 698.)
Gray1 CPB, LLC v. SCC Acquisitions, Inc. (2015) 233 Cal.App.4th 882, 893.
Judgment Creditor did not cite, and independent research did not locate, case law addressing at what state a levy constitute satisfaction of judgment for purposes of Code Civ. Proc. §685.080(a). But the California Supreme Court has said the following:
“A levy under an execution on property sufficient to satisfy the
same, is a satisfaction of the judgment.” (Mickles v. Haskin, 11 Wendell.)
People v. Chisholm (1857) 8 Cal. 29, 30.
The first levy is, prima facie, a satisfaction as to the defendant, so
long as the goods remain in the hands of the Sheriff.
. . .
The defendants agreed to indemnify the plaintiff against the
payment of costs in Boyreau v. Campbell et al., and
they were therefore in a manner collaterally liable therefor, in the nature
of sureties. The levy upon sufficient personal property to satisfy the
judgment and execution in that case operated as a satisfaction thereof,
sufficient at least to discharge the collateral liability of these defendants.
Mulford v. Estudillo (1863) 23 Cal. 94, 98, 100
On 5/11/23, this court declared that Judgment Debtor was not entitled to return of $11,691.59 of the funds levied from Judgment Debtor’s Wells Fargo account as this was “the amount remaining due” under the judgment. [ROA #474.] This amount was thus Judgment Creditor’s.
The court finds that at this point the judgment was satisfied for purposed of Code Civ. Proc. §685.080(a).
There is no evidence that Judgement Creditor would or did reject these funds. Nor is there evidence when it received the levied funds, whether before or after it filed its motion.
Clerk to give notice