Judge Lee W. Tsao, Case Number: NOR05CR1266, Date: 2023-11-08 Tentative Ruling

Judge: Lee W. Tsao, Case: NOR05CR1266, Date: 2023-11-08 Tentative Ruling

Case Number: NOR05CR1266 Hearing Date: December 7, 2023 Dept: C

L&J Assets, LLC v. Peter A. Zuk, et al.

CASE NO.: NOR05CR1266

HEARING: 12/7/23

TENTATIVE ORDER

Plaintiff Intellectual Capital Management & Servicer, Inc.’s motion for attorney fees is GRANTED in the amount of $8,947.50.

Moving Party to give NOTICE.

On January 24, 2006, plaintiff L&J Assets, LLC obtained a default judgment against defendant Peter A. Zuk (“Defendant” or “Judgment Debtor”) in the amount of $19,615.23. On April 2, 2009, L&J Assets, LLC assigned the judgment to Bag Fund LLC. On January 13, 2016, the judgment was renewed in the amount of $39,252.00. On September 17, 2020, Bag Fund LLC assigned the judgment to Intellectual Capital Management & Servicer, Inc. (“Plaintiff” or “Judgment Creditor”) On March 14, 2022, the judgment was renewed in the amount of $70,098.00.

Plaintiff moves for $19,605 in attorney fees and costs against Defendant as reasonable and necessary costs of enforcing the judgment.

CCP Section 1021 states: “Except as attorney's fees are specifically provided for by statute, the measure and mode of compensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties; but parties to actions or proceedings are entitled to their costs, as hereinafter provided.”¿A prevailing party is entitled to recover costs, including attorneys’ fees, as a matter of right.¿ (See CCP §§ 1032(a)(4), 1032(b), 1033.5.)¿¿¿

CCP Section 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. (Emphasis added.)

In addition, CCP Section 685.080(b) requires:

[t]he 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.

CCP § 685.080, subdivision (a) allows a Judgment Creditor to claim costs by noticed motion “before the judgment is satisfied in full, but not later than two years after the costs have been incurred.”

The court’s objective is to award attorney’s fee 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.4th 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, 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.)¿ The burden is on the party seeking attorney’s fees to prove the reasonableness of the fees. (Center for Biological Diversity v. County of San Bernardino (2010) 188 Cal.App.4th 603, 615.)

The party that seeks payment must “keep records in sufficient detail that a neutral judge can make a fair evaluation of the time expended, the nature and need for the service, and the reasonable fees to be allowed.” (Hensley v. Eckerhart (1983) 461 U.S. 424, 441 (conc. opn. of Burger, C.J.).) The evidence should allow the court to consider whether the case was overstaffed, how much time the attorneys spent on particular claims, and whether the hours were reasonably expended. (ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1020.) Block billing is not impermissible per se. (Christian Research Inst. v. Alnor (2008) 165 Cal.App.4^th 1315, 1325.) Trial courts retain discretion to penalize block billing when the practice prevents them from discerning which tasks are compensable and which are not. (Heritage Pac. Fin., LLC v. Monroy (2013) 215 Cal.App.4th 972, 1011.)

“Padding” in the form of inefficient or duplicative efforts is not subject to compensation. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132.)

In challenging attorney fees as excessive because too many hours of work are claimed, the opposing party must point to the specific items challenged, with a sufficient argument and citations to the evidence. (Premier Medical Management Systems, Inc. v. Cal. Ins. Guarantee Assn. (2008) 163 Cal.App.4th 550, 564 [“General arguments that fees claimed are excessive, duplicative, or unrelated do not suffice”].)

The Court has broad discretion in determining the amount of a reasonable attorney’s fee award, which will not be overturned absent a “manifest abuse of discretion, a prejudicial error of law, or necessary findings not supported by substantial evidence.” (Bernardi v. County of Monterey (2008) 167 Cal.App.4th 1379, 1393-1394.) The Court need not explain its calculation of the amount of attorney’s fees awarded in detail; identifying the factors considered in arriving at the amount will suffice. (Ventura v. ABM Indus. Inc. (2012) 212 Cal.App.4th 258, 274-275.)

Counsel for Judgment Creditor seeks $19,605.00 in Attorney’s Fees and Costs incurred post-judgment between March 8, 2023, to June 19, 2023.

Judgment Creditor asserts that the original plaintiff sued for breach of contract, account stated, and open book account, and that the underlying contract allegedly provided for recovery of attorney fees. Judgment Creditor further asserts that the Request for Entry of Default Judgment requested an award of attorney fees, and the judgment entered by the Court contains an award of attorney’s fees of $895.26. Judgment Creditor submits a copy of the judgment. (Decl. Quigg, ¶10, Ex. C.)

Judgment Creditor submits the declaration of its attorney Vincent J. Quigg (“Attorney Quigg”) in support of its request for attorneys’ fees. Quigg states that he associated attorney Leslie Baker (“Attorney Baker”) to draft pleadings and make court appearances. (Decl. Quigg, ¶ 3.) Attorney Quigg states that Attorney Baker has over 35 years’ experience in bankruptcy and business litigation. (Ibid.) Attorney Quigg’s billing rate is $375.00 per hour and Attorney Baker’s billing rate is $325.00 per hour, which Quigg believes are within the range of hourly rates charged by collection attorneys in the Los Angeles area. (Decl. Quigg, ¶ 7.) The Court finds Attorney Quigg and Attorney Baker’s hourly rates to be reasonable.

In reviewing the billing record, the Court finds that some of the hours spent were not on activities to enforce a judgment. For example, the Court finds five hours expended on March 8, 2023 to update and revise motion for award of attorney’s fees and costs, memorandum of points and authorities, and supporting declarations and to prepare exhibits were not spent on enforcing a judgment. (See Ex. A.) Thus, the Court does not award the time spent on 3/8 to 3/9, part of 3/30, part of 4/15, 4/17 to 4/21, part of 4/29, part of 5/6, part of 5/9, part of 5/10, part of 5/11, part of 5/18, part of 5/23, part of 5/24, 5/26, and 5/30. (Ibid.)

Without stating who did what, the billing records state that all work was done at $325 per hour, which implies that Attorney Baker performed all the work, yet Attorney Quigg states that he associated Attorney Baker to draft pleadings and make court appearances. (Ibid.) Judgment Creditor has not provided clarification. Because of this inconsistency, the Court will only award work that Attorney Quigg asserts Attorney Baker performed: drafting pleadings and making court appearances. Thus, the Court awards 1.3 hours of the work performed on 5/24 for a total of $422.50.

Judgment Creditor also submits the declarations of its attorney Ron Hacker (“Attorney Hacker”) in support of its request for attorney fees. Attorney Hacker states that after the Court denied defendant’s Motion to Vacate Default Judgment, Defendant filed an appeal, and Judgment Creditor had to defend the appeal. Attorney Hacker negotiated and paid a non-refundable retainer of $2,000 to appellate attorney Richard L. Antognini (“Attorney Antognini”) on behalf of Judgment Creditor. (Decl. Hacker, ¶ 6.) Hacker states that Defendant did not file his opening brief, the appeal was dismissed, and Attorney Antognini did not bill Judgment Creditor any additional fees. (Ibid.) In addition, Hacker states that Judgment Creditor used the retainer fees quickly because Attorney Antognini bills at $650 an hour and the retainer covered 3.8 hours of his time, which he spent becoming familiar with the case and the appeal and strategizing with Judgment Creditor. (Reply Decl. Hacker, ¶ 3.)

Judgment Creditor’s counsel has not supported why $650 an hour is a reasonable rate for Attorney Antognini. Defendant has not asserted or argued that it is unreasonable. Based on the Court’s own knowledge about billing rates for appellate attorneys in the Los Angeles area, it finds this rate reasonable. Thus, it awards the $2,000.00 attorney fees for work performed by Attorney Antognini.

Judgment Creditor also submits the declaration of its attorney Richard M. Fannan (“Attorney Fannan”) in support of its request for attorney fees. Fannan states that he is a 1977 graduate of University of California Berkeley Law School and has been practicing for the last 45 years with an emphasis on representing financial institutions and creditor rights. (Decl. Fannan, ¶ 17.) He states his normal hourly rate is $450 per hour. (Decl. Fannan, ¶ 18.) The Court finds Attorney Fannan’s hourly rate to be reasonable.

In reviewing the billing record, the Court finds that some of the hours spent were not on activities to enforce a judgment. For example, the Court finds 1.5 hours expended on March 1, 2023, to draft an opposition to motion to tax costs was not spent on enforcing a judgment. (See Ex. B.) Thus, the Court does not award the time spent on 3/1 to part of 3/7, part of 3/8 to 3/29, 4/14, 4/15, 5/5, part of 5/11, and 5/23 to 5/29. (Ibid.)

Judgment Debtor challenges some of Attorney Fannan’s billing as duplicative and excessive. Judgment Debtor also challenges some of the billing as unrelated, specifically the 4/25 entry, which states, “Review documentation for the Krayzman litigation.” In reply, Judgment Creditor submitted evidence that it is related. (Reply Decl. Quigg, ¶¶ 4, 5.) Of the remaining time entries, the Court does not find them duplicative or excessive. Thus, the Court awards 14.5 hours of attorney work at $450 per hour for a total of $6,075.00.

In total, the Judgment Creditor incurred $8,947.50 in post-judgment attorneys’ fees and costs.

Accordingly, Judgment Creditor’s request for attorney’s fees and costs is GRANTED in the amount of $8,947.50.

L&J Assets, LLC v. Peter A. Zuk, et al.

CASE NO.: NOR05CR1266

HEARING: 12/7/23

TENTATIVE ORDER

Defendant Peter A. Zuk’s motion for acknowledgment of satisfaction of judgment is DENIED.

Moving Party to give NOTICE.

Defendant moves for (1) an order directing Plaintiff to file an acknowledgement of satisfaction in full, (2) an order allowing the deposit of funds to satisfy the judgment with the court, or (3) a determination if any amount is due on the judgment and allow such amount to be paid into court.

CCP § 724.010 et seq. sets forth the procedures for satisfaction of a judgment. “A money judgment may be satisfied by payment of the full amount required to satisfy the judgment....” (CCP § 724.010(a); see also Quintana v. Gibson (2003) 113 Cal.App.4th 89, 93-95 [CCP § 724.050 is exclusive method for obtaining an order for entry of satisfaction of judgment].) “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.” (CCP § 724.010(c).) “This subdivision addresses the timing of a judgment creditor's obligation to file an acknowledgment of satisfaction, not when a judgment is deemed to have been fully satisfied.” (Gray1 CPB, LLC v. SCC Acquisitions, Inc. (2015) 233 Cal.App.4th 882, 893.)

If the judgment creditor fails to do so, the judgment debtor may demand compliance and, failing that, move to compel compliance. (County of Santa Clara v. Escobar (2016) 244 Cal.App.4th 555, 577, citing CCP § 724.050(a), (d).) “If the judgment has been satisfied, the judgment creditor shall comply with the demand not later than 15 days after actual receipt of the demand.” (CCP § 724.050(c).)

If the judgment creditor does not comply with the demand within the time allowed, the person making the demand may apply to the court on noticed motion for an order requiring the judgment creditor to comply with the demand. The notice of motion shall be served on the judgment creditor. Service shall be made personally or by mail. If the court determines that the judgment has been satisfied and that the judgment creditor has not complied with the demand, the court shall either (1) order the judgment creditor to comply with the demand or (2) order the court clerk to enter satisfaction of the judgment. (CCP § 724.050(d).)

CCP §¿724.050(e) provides: "If the judgment has been satisfied and the judgment creditor fails without just cause to comply with the demand within the time allowed, the judgment creditor is liable to the person who made the demand for all damages sustained by reason of such failure and shall also forfeit one hundred dollars ($100) to such person. Liability under this subdivision may be determined in the proceedings on the motion pursuant to subdivision (d) or in an action."

CCP §¿724.080 provides: "In an action or proceeding maintained pursuant to this chapter, the court shall award reasonable attorney's fees to the prevailing party."

Preliminarily, the Court addresses Defendant’s requests for judicial notice. Defendant requests judicial notice of (1) Order/Ruling issued on May 18, 2023, (2) Notice of Ruling filed on June 13, 2023, (3) Writ of Execution issued October 30, 2023, (4) Defendant’s Reply to Plaintiff’s First, Second, and Third Amended Memorandum of Costs (without exhibits.) A court may take judicial notice of the contents of its own records. (Dwan v. Dixon (1963) 216 Cal.App.2d 260, 265.)

Thus, the Court grants the four requests of judicial notice.

Both parties agree that Plaintiff filed an acknowledgement of partial satisfaction of judgment of $106,000.00 on January 9, 2023. On review of the moving papers, the dispositive issue as to the instant motion is whether Defendant has satisfied the judgment, or whether he is required to pay a further $43,071.50, which comprises of (1) $4,084.00 interest accrued on the judgment and (2) attorney fees of $37,407.50 that the Court granted on May 18, 2023, and (3) $1,580.00 in discovery sanctions.

Defendant argues that he paid the amount awarded in costs and that there is an overpayment because on May 18, 2023, the Court awarded $35,560.00 in costs, which brings the total owed to $105,658.00. Defendant also argues that the discovery sanction and attorney fees were not awarded according to the court’s order on May 18, 2023. Defendant further argues that the attorney fees awarded are duplicative of what the Court awarded in costs.

In opposition, Plaintiff argues that Defendant did not include the $4,084.00 in interest that had accrued and the attorney fees awarded for post-judgment enforcement in the amount of $37,407.50 and discovery sanctions of $1,580.00. Plaintiff also argues that the amounts awarded by the Court in discovery sanctions and attorney fees are stated elsewhere and that Defendant is attempting to relitigate the attorney fees motion.

When postjudgment enforcement costs are allowed, they become part of the principal amount of the judgment. (Code Civ. Pro., § 685.070, subd. (d), § 685.090, subd. (a).) Therefore, interest accrues upon those costs at the rate of ten percent per annum. (§ 685.010, subd. (a).) (Lucky United Properties Inv., Inc. v. Lee (2010) 185 Cal. App. 4th 125, 138.)

Here, the Order that Defendant refers states that “the motions for orders compelling responses to interrogatories and requests for production are denied as moot and its requests for sanctions are granted.” (Request for Judicial Notice (“RJN”), Ex. A.) The Order also states that the motion for attorney fees is granted. (RJN, Ex. A.) While the Court did not state the amounts awarded in the Order, it still awarded the fees and sanctions. The Court finds that the amounts awarded are stated elsewhere, such as in the Notice of Ruling. (RJN, Ex. B.) The Court also finds that the Defendant is attempting to relitigate the attorney fees motion.

Thus, the Court denies Defendant’s motion for an order directing Plaintiff to file an acknowledgment of satisfaction in full and an order allowing the deposit of funds to satisfy the judgment. Because Plaintiff has not moved for attorney fees, the Court does not grant any.

The Court finds that Defendant owes (1) $4,084.00 interest accrued on the judgment, (2) attorney fees of $37,407.50 that the Court granted on May 18, 2023, (3) $1,580.00 in discovery sanction that the Court granted on May 18, 2023, and (4) attorney fees of $8,947.50 that the Court grants together with this motion.

Motion is DENIED.

L&J Assets, LLC v. Peter A. Zuk, et al.

CASE NO.: NOR05CR1266

HEARING: 12/7/23

TENTATIVE ORDER

Defendant Peter A. Zuk’s motion to tax costs and restrain oppressive litigation tactics is DENIED.

Moving Party to give NOTICE.

Defendant moves to strike Item 1(a)(8) in the amount of $38,987.50. Defendant also moves to restrain Plaintiff from pursuing its oppressive and unreasonable litigation tactics.

Thus, the Court grants the four requests for judicial notice.

Within 10 days after service of the memorandum of costs, the judgment debtor may file with the court, and serve on the judgment creditor personally or by mail, a noticed motion to tax costs. (Code Civ. Pro., § 685.070, subd. (c).) The 10-day period is extended under CCP § 1013 when the memorandum of costs was served by mail. (Code Civ. Pro., § 685.070, subd. (f).) If a motion to tax costs is not timely filed, the costs claimed in the memorandum are allowed. (Code Civ. Pro., § 685.070, subd. (d).) There are no exceptions to the statutory rule that if no motion to tax costs is made within the 10-day statutory time period the costs claimed in the memorandum are allowed, and the language of the rule is mandatory. (Lucky United Properties Investment, Inc. v. Lee (2010) 185 Cal.App.4th 125.)

Here, the Memorandum of Costs was filed and served by U.S. mail on October 6, 2023. (Decl. McCall Jr., ¶ 2, Ex. “1”) Thus, the 10-day statutory time to tax the costs is October 16, 2023. Because Plaintiff served the memorandum by mail, the period is extended by five calendar days to October 21, 2023. Defendant moved to tax costs on October 23, 2023.

Thus, Defendant is untimely, and the motion is denied.

Defendant does not cite and there is no authority to support that a motion to restrain oppressive litigation tactics exists.

Motion is DENIED.