Judge: Malcolm Mackey, Case: 19STCV33506, Date: 2023-01-13 Tentative Ruling

Case Number: 19STCV33506    Hearing Date: January 13, 2023    Dept: 55

SMITH v. GUILLOSSON                                                   19STCV33506

Hearing Date:  1/13/23,  Dept. 55

#8:   MOTION FOR AN ORDER FROM THE COURT TO COMPEL SMITH’S EXECUTION OF ACKNOWLEDGEMENT OF PARTIAL SATISFACTION OF JUDGMENT IN THE AMOUNT OF $101,500.00.

Notice:  Okay

Opposition

MP:  Defendants

RP:  Plaintiff

Summary

On 10/8/19, Plaintiff GREGORY EDWARD SMITH filed a First Amended Complaint alleging that Plaintiff and self-represented Defendants are adjacent property owners in the Hollywood Hills, and Defendants continue to interfere with Plaintiff’s recorded easement for the sole use of a brick patio situated on Defendants' property, and built several structures on Plaintiff’s Property.

The causes of action are:

1. TRESPASS

2. PRIVATE NUISANCE

3. NEGLIGENCE

4. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

5. QUIET TITLE (EASEMENT)

6. PUBLIC NUISANCE

7. TRESPASS

8. PRIVATE NUISANCE

9. TRESPASS

10. PRIVATE NUSINANCE.

On 2/19/19, defendants filed a First Amended Cross-Complaint against Plaintiff, alleging that cross-defendants interfere with cross-complainants’ right to use and enjoy their property, including maintenance of an easement for enjoyment created in 1992.

Cross-complainants’ causes of action are:

(1) QUIET TITLE TO RECORDED EASEMENT;

(2) QUIET TITLE TO PRESCRIPTIVE EASEMENT;

(3) PRIVATE NUISANCE;

(4) MALICIOUS PROSECUTION;

(5) ABUSE OF PROCESS;

(6) EQUITABLE INDEMNITY AND CONTRIBUTION;

(7) THIRD PARTY TORT OF ANOTHER

(8) DECLARATORY RELIEF AGAINST ALL CROSS-DEFENDANTS.

On 2/18/20, cross-complainants filed requests for dismissal of the Fourth, Fifth, Sixth and Seventh Causes of Action, of the First Amended Cross-Complaint.

On 3/16/21, cross-complainants filed the later-granted motion for leave to file a Second Amended Cross-Complaint, arguing that the Second Amended Complaint, filed 1/13/21, and recent discovery, revealed new facts and new claims, and a need for clarification, including that SMITH was hostile, and seeking to obtain control over property of Cross-Complainants’ Walkway Easement.

MP Positions

Moving parties request an order compelling Smith’s execution of an acknowledgement of partial satisfaction of judgment in the amount of $101,500.00, and awarding the Guillossons their attorney fees in the amount of $8,940.00, on grounds including the following:  

·         The expense of remediation is moot, in that Smith has sold his property without ever performing the remediation work. Code of Civil Procedure Section 724.260.

·         Smith is no longer in a position of ownership needed in order to claim a payment for such remediation.

·         Smith’s collecting the awarded amount of the remediation expense would be a windfall.

RP Positions

Opposing party advocates denying, for reasons including the following:

·         The Guillossons have not paid $1.00 of the October 14, 2021, $126,500.00 money judgment. See, Declaration of Gregory E. Smith. ¶ 3.

·         Selling the Premises did not constitute partial satisfaction of judgment.

·         On May 26, 2022, in selling the property, Smith assigned certain rights under the Judgment to the Buyer. Smith assigned to Buyer the right to tear down the encroachments unlawfully built by the Guillossons on the Premises. Smith retained the right under the Judgment to enforce the compensatory Damages entered in his favor and against the Guillossons.

·         There is only limited jurisdiction to change the filed Judgment, and none of the grounds are present here.  See Craven v. Crout (1985) 163 Cal.App.3d 779, 782-783.

·         The Court should consider setting an OSC re sanctions against the Guillossons and their counsel for filing this patently frivolous Motion.

Tentative Ruling

The motion is denied.

The Court cannot discern that there would be a windfall profit.  Logically, the sales price of the property was diminished due to conveying it without the improvements, and with the burden of the buyer taking on that expense.

“ ‘A trial court's decision to apply a credit in partial satisfaction of the judgment is an exercise of the court's equitable discretion. [Citation.] An abuse of discretion occurs when, in light of applicable law and considering all relevant circumstances, the court's ruling exceeds the bounds of reason.’ ” Cunningham v. Magidow (2013) 219 Cal. App. 4th 298, 304–06 (“trial court abused its discretion by granting Magidow's motion to compel acknowledgment of partial satisfaction….”).

Also, as to partial satisfactions of judgment, a noncomplying creditor is not liable for damages, penalties or attorney fees.  Cal. Prac. Guide Enf. J. & Debt (The Rutter Group 2022)  § 6:1903 (citing, e.g., CCP § 724.110(b)).

The opposing request for an OSC re sanctions is denied.  Courts may not award Section 128.7 monetary sanctions for frivolous filings to an opposing party, whether on their own motion, or pursuant to their own orders to show cause.  Interstate Specialty Marketing, Inc. v. ICRA Sapphire, Inc. (2013) 217 Cal.App.4th 708, 710-11.

*IF BOTH SIDES SUBMIT ON THE TENTATIVE RULING, PLEASE CALL 213-633-0655 TO INFORM THE COURT.