Judge Lee W. Tsao, Case NOR05CR1266 2023-05-18 Tentative Ruling

Judge: Lee W. Tsao, Case: NOR05CR1266, Date: 2023-05-18 Tentative Ruling

Case Number: NOR05CR1266 Hearing Date: May 18, 2023 Dept: C

L & J Assets, llc vs. Zuk, peter a.

CASE NO.: NOR05CR1266

HEARING: 5/18/23 @ 10:30 AM

#10

TENTATIVE RULING

Application for Appearance and Examination

Assignee Intellectual Capital Management & Servicer, Inc.’s application for appearance and examination is GRANTED.

Moving Party to give NOTICE.

Assignee Intellectual Capital Management & Servicer, Inc. (ICMS) moves for an award of post judgment attorney’s fees pursuant to CCP §§ 685.040 and 1033.5. Default judgment was entered on January 24, 2006. On April 11, 2022, ICMS filed an application and order for appearance and examination against Defendant Peter Zuk. The hearing is set for June 28, 2023.

Motions to Compel

Assignee Intellectual Capital Management & Servicer, Inc.’s motions for orders compelling responses to interrogatories and requests for production are DENIED as moot and its requests for sanctions are GRANTED.

Moving Party to give NOTICE.

Assignee Intellectual Capital Management & Servicer, Inc. (ICMS) moves for an order compelling responses to its interrogatories and requests for production pursuant to CCP § 708.030(c) and requests monetary sanctions pursuant to CCP § 2023.030(a).

At the hearing on this motion on October 21, 2022, it was noted that Defendant served responses to ICMS’s interrogatories and requests for production and ICMS’s counsel did not have the opportunity to review the responses prior to the hearing. ICMS has not represented to the court that the responses were deficient. Thus, the court is inclined to deny the motions as moot.

Sanctions are mandatory against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a response to interrogatories unless the one subject to sanctions acted with substantial justification or other circumstances make the imposition of sanctions unjust. (CCP §§ 2030.290(c), 2031.300(c).) Sanctions may be awarded, even though no opposition is filed pursuant to CRC 3.1348(a).

Monetary sanctions are GRANTED and imposed against Defendant and his counsel of record, jointly and severally, in the reduced amount of $1,520.00 for reasonable attorney’s fees incurred in preparing the motions and related filing fees. This sanction is to be paid within thirty days of the date of this Order.

Motion for Attorney’s Fees

Assignee Intellectual Capital Management & Servicer, Inc.’s motion for Attorney’s Fees is GRANTED.

Moving Party to give NOTICE.

Assignee Intellectual Capital Management & Servicer, Inc. (ICMS) moves for an award of post judgment attorney’s fees pursuant to CCP §§ 685.040 and 1033.5.

CCP § 685.040 allows for “[a]ttorney’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 subdivision (a) of Section 1033.5.” CCP § 1033.5(a)(10) allows for attorney’s fees when authorized by contract, statute, or law.

The underlying 2006 default judgment against Defendant Peter Zuk (Defendant) awarded attorney’s fees for breach of contract. (Quigg Decl., Exh. G.) Thus, ICMS is entitled to attorney’s fees for enforcing the judgment.

The fee setting inquiry in California ordinarily “begins with the ‘lodestar’ [method], i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate.” (Graciano v. Robinson Ford Sales, Inc. (2006) 144 Cal.App.4th 140, 154.) “[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.” (Margolin v. Reg’l Planning Comm’n (1982) 134 Cal.App.3d 999, 1004.) The lodestar figure may then be adjusted, based on consideration of factors specific to the case, in order to fix the fee at the fair market value for the legal services provided. (See Serrano v. Priest (1977) 20 Cal.3d 25, 49 [discussing factors relevant to proper attorneys’ fees award].) 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. (Id. at p. 48, fn. 23.) The factors considered in determining the modification of the lodestar include “(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.” (Mountjoy v. Bank of Am. (2016) 245 Cal.App.4th 266, 271.) The burden is on the successful party to prove the appropriate market rate to be used in calculating the lodestar. However, the moving party may satisfy its burden through its own affidavits, without additional evidence.” (MBNA Am. Bank, N.A. v. Gorman (2006) 147 Cal.App.4th Supp. 1, 13.)

The rate requested of $350 for Vincent Quigg’s time and $300 for Leslie Baker’s time is reasonable. ICMS has submitted evidence of its attorney’s market rate through its attorney’s own declaration. (Quigg Decl., ¶¶ 3 and 9.) Thus, there is a presumption of reasonableness for the hourly rate. Defendant has not submitted any argument that the hourly rate is unreasonable. Therefore, the hourly rates are reasonable based on the presumption has not been rebutted.

The number of hours expended is reasonable because it reflects the complexity and number of issues raised in order to collect ICMS’s judgment. ICMS argues that the services are related to collecting its judgment. Plaintiff argues that the hours claimed are excessive and its hours spent are evidence of a reasonable number of hours. (Democratic Party of Wash. State v. Reed, 388 F.3d 1281, 1287.) Federal opinions are only persuasive authority. Further, Plaintiff does not provide the number of hours expended by his counsel. Therefore, the number of hours expended by ICMS’s counsel is reasonable because ICMS provides evidence that it reflects the complexity and number of issues raised in order to collect ICMS’s judgment.

Accordingly, Assignee Intellectual Capital Management & Servicer, Inc.’s motion for Attorney’s Fees is GRANTED.

Motion to Tax Costs

Moving Party to give NOTICE.

Defendant Peter Zek (Defendant) moves for an order taxing costs from Assignee Intellectual Capital Management & Servicer, Inc.’s (ICMS) first, second, and third amended cost memoranda pursuant to CCP § 685.070(c).

Legal Standard

CCP § 685.070(a) provides:

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.

“Within 10 days after the memorandum of costs is served on the judgment debtor, the judgment debtor may apply to the court on noticed motion to have the costs taxed by the court.” (CCP § 685.070(c).) “If no motion to tax costs is made within the time provided in subdivision (c), the costs claimed in the memorandum are allowed.” (CCP § 685.070(d).) “[W]hen a writ, notice, order, or other paper is required to be served under this title on the judgment debtor, it shall be served on the judgment debtor instead of the attorney for the judgment debtor.” (CCP § 684.020(a).)

Background

This motion concerns fourteen costs memoranda filed from January 13, 2016 to October 20, 2022 which the court struck on October 21, 2022. ICMS was ordered to file detailed memoranda at least two weeks prior to February 3, 2023. ICMS filed a cost memorandum on January 20, 2023 which failed to provide any detail for the $53,054.00 in costs sought from January 2016 to August 2022. ICMS was ordered to file two separate cost memoranda by February 21, 2023, regarding the costs stricken on October 21, 2022 and all remaining items. ICMS filed an amended memorandum of cost on February 21, 2023 regarding the cost memoranda not contested in Defendant Peter Zuk’s motion to tax costs originally filed on September 9, 2022.

First Amended Cost Memorandum

The first amended cost memorandum seeks $12,675.00 in costs.

These costs claimed in the first amended cost memorandum are proper because they were not objected to within ten days after service of cost memoranda, except for costs included in the August 9, 2022 cost memorandum. The August 9, 2022 cost memorandum was improperly served on Defendant’s counsel and not Defendant. ICMS argues that Defendant was represented by counsel at the time the cost memorandum was filed and therefore, ICMS must serve the cost memorandum on Defendant’s counsel. Additionally, under California Rules of Court (CRC), rule 4.2(a) that ICMS’s counsel should not directly communicate with Defendant. However, CRC, rule 4.2(a) does not supersede CCP § 684.020. Thus, the August 9, 2022 cost memorandum was not properly served and is subject to Defendant’s motion to tax. The previous cost memorandum claimed costs up to June 15, 2022. (June 20, 2022 Cost Memorandum.) Thus, all costs previously claimed before June 15, 2022, are awarded as uncontested. Upon review of the first amended cost memorandum, no costs after June 15, 2022 were claimed. Thus, the entire $12,675.00 in costs claimed in the first amended cost memorandum are awarded.

Further, Defendant claims that the costs were not claimed within the two year statutory period required by CCP § 684.040. However, the court finds that the striking of the former memorandum of costs was to provide a clear record on the issue of costs in this case and should not prejudice ICMS’s right to those costs which were timely filed and previously uncontested. Thus, the court will not consider arguments as to the entitlement of any costs prior to June 15, 2022, as each cost memoranda was properly served and valid.

Second Amended Cost Memorandum

The second amended cost memorandum seeks $28,950.23 in costs.

The entire $7,180.23 claimed in the Streltzer Declaration is struck because the costs claimed are for a separate action. Thus, the costs are not claimable in the instant case.

Defendant argues that the court should not consider costs claimed after March 2022 because ICMS had secured sufficient funds to satisfy its judgment through an agreement between the Trustee of the Estate of Defendant’s mother and ICMS for $106,000.00 to be held in escrow from the sale of the Defendant’s mother’s house. However, the satisfaction of judgment filed on January 9, 2023 for the $106,000.00, provides that judgment is partially satisfied. Thus, the judgment has not been fully satisfied and costs can still be claimed after January 9, 2023.

Defendant argues that the cost memorandum lacks sufficient detail as required by the previous court order, however, ICMS’s billing statements attached to the memorandum provide sufficient detail.

Defendant argues that the cost memorandum contains unnecessary and unreasonable attorney’s fees. The 3.0 hours billed on June 18, 2022 for preparation and appearance at the debtor examination are stricken as the application for order of appearance was continued and had not been entered. Thus, Defendant was not ordered to appear at an examination on that date. The court strikes the following hours billed because they are associated with an improper motion to assign rents which was denied by the court: 3.0 hours on September 10, 2021; 1.5 hours billed on September 27, 2021; 4.0 hours billed on October 7, 2021; and 0.5 hours billed on October 13, 2021. Thus, the $21,770.00 claimed in Hacker Declaration, Quigg Declaration, and Fannan Declaration is reduced by $3,925.00 to $17,845.00.

Thus, $17,845.00 is awarded pursuant to the second amended cost memorandum.

Third Amended Cost Memorandum

The third amended cost memorandum seeks $11,869.00 in costs.

The $550.00 claimed in the Streltzer Declaration is struck because the costs claimed are for a separate action. Thus, the costs are not claimable in the instant case. Additionally, the $6,279.00 in costs claimed in the Hernandez Declaration are struck because the costs are not claimable under CCP § 685.070(a). Thus, the third amended cost memorandum is reduced by $6,829.00.

Therefore, $5,040.00 is awarded pursuant to the third amended cost memorandum.

Accordingly, Defendant Peter Zuk’s motion to tax costs is GRANTED in part. The second amended cost memorandum is reduced by $3,925.00 to $17,845.00 and the third amended cost memorandum is reduced by $6,829.00 to $5,040.00.