Judge: Malcolm Mackey, Case: BC422025, Date: 2022-09-16 Tentative Ruling

Case Number: BC422025    Hearing Date: September 16, 2022    Dept: 55

CHOP WON PARK v. NAZARI                            BC422025

Date of Hearing: 9/16/22, Dept. 55

#3: MOTION TO STRIKE AND/OR TAX COSTS AND FEES SOUGHT BY PLAINTIFF CHOP WON PARK AND CROSS-DEFENDANT BONNIE NGUYEN

Notice: Okay

Opposition

 

MP:   Defendants

RP:   Plaintiff, and Cross-Defendant.

 

Summary

On 1/4/11, plaintiffs CHOP WON PARK and TRUE WORLD, LLC filed a THIRD AMENDED COMPLAINT FOR:

1.         FRAUD — INTENTIONAL MISREPRESENTATION

2.         FRAUD — INTENTIONAL MISREPRESENTATION

3.         FRAUD — ACTIVE CONCEALMENT AND SUPPRESSION OF MATERIAL FACTS

4.         FRAUD — ACTIVE CONCEALMENT AND SUPPRESSION OF MATERIAL FACTS

5.         NEGLIGENT MISREPRESENTATION

6.         NEGLIGENT MISREPRESENTATION

7.         NEGLIGENT MISREPRESENTATION

8.         NEGLIGENT MISREPRESENTATION

9.         UNJUST ENRICHMENT

10.       NEGLIGENCE

11.       NEGLIGENCE

12.       UNJUST ENRICHMENT

13.       BREACH OF CONTRACT

14.       BREACH OF THE COVENANT OF GOOD FAITH AND FAIR DEALING

15.       BREACH OF THE COVENANT OF GOOD FAITH AND FAIR DEALING

16.       CONVERSION

17.       CONVERSION

18.       CONVERSION

19.       CONVERSION

20.       PROMISSORY ESTOPPEL

21.       RESCISSION FOR FAILURE OF CONSIDERATION

 

According to that pleading, defendants, including sellers of Truck Stop, at 2001 State Highway 58, Mojave, and real estate agents, duped Plaintiff, a Korean Immigrant, into buying the property, based on false business receipts.

On 12/29/10, Defendant KELLY NAZARI filed a Cross-Complaint for (1) WASTE and (2) INDEMNIFICATION, against HO K. SUH et al, alleging that cross-defendants mismanaged the subject real property and allowed it to deteriorate, before Cross-Complainant caused it to be sold pursuant to a trust deed.

On 11/1/13, Judgment on a special verdict was entered, awarding monetary damages to plaintiffs.

On 10/20/21, the Court of Appeal affirmed the order denying defendants’ motion to set aside the Judgment and Amended Judgment entered against them in 2013 and 2017.

 

 

MP Position

 

Defendants move to tax costs from a cost memo dated April 2, 2022 by judgment creditors, on grounds including the following:

·         The Writs of Execution obtained by the Plaintiff and Cross-Defendant do not include the correct figures and were thus improper. Plaintiff and Cross-Defendant’s calculations are incorrect, including “Credits to interest and principal,” “principal remaining due,” and “Accrued interest remaining due.”  The Court can allow a corrected cost memo.

·         Plaintiff Park and Cross-Defendant Nguyen are claiming a principal balance of $925,899.50 plus accrued interest of $745,170.48 despite acknowledging a credit of $600,024.48. These figures far exceed what is owed to Plaintiff Park and Cross-Defendant Nguyen. The “Judgment Principal” for Plaintiff Park and Cross-Defendant Nguyen has never been $925,899.50 and Plaintiff Park and Cross-Defendant Nguyen have not substantiated how they arrived at these figures.

·         Plaintiff and Cross-Defendant provided no proof of the $171,397.50 in attorney fees allegedly incurred from 10/03/2019 to 04/01/2022, with the Memorandum of Costs.

·         Attorney’s fees cannot be claimed by a Memorandum of Costs, but only by a noticed motion pursuant to Code of Civil Procedure §685.080.

·         Attorney’s fees are not recoverable in this matter pursuant to Code of Civil Procedure §685.040.

 

 

RP Position

 

Opposing parties advocate denying the motion, for reasons including these:

 

·         Judgment Creditors’ opposing evidence establishes the amount of fees billed to them for work done since March 2019. (Exhibit C.)

·         Judgment creditors have provided detailed time records showing the legal nature of the paralegals’ work which is not “clerical.”

·         Judgment Creditors aver $750 per hour is an appropriate lodestar rate.

·         A multiplier of 2.0 is warranted.

·         Plaintiffs expended costs attempting to collect on the judgment.

·         Judgment Creditors have shown that their case #19STCV20545, Chop Won Park, et al., v. Kelly Nazari, et al., was brought to quiet title to real property owned by Judgment Debtors, and to enforce the Judgment in this action.

·         An award of attorney’s under CCP § 685.040 is proper when (1) the fees have been incurred to ‘enforce’ a judgment; and (2) the underlying judgment includes an award for attorney fees pursuant to Code of Civil Procedure § 1033.5(a)(10)(A) (Cardinale v. Miller, 222 Cal.App.4th 1020, 1025-26 (Cal. Ct. App. 2014).)

·         Judgment Creditors are entitled to attorney’s fees for their efforts collecting on the judgment by filing a lawsuit to eliminate liens that have been placed on Judgment Debtors’ real property. (Chinese Yellow Pages v. Chinese Overseas (2008) 170 Cal.App.4th 868.) All of the acts pertaining to the prosecution of the lawsuit were necessary acts performed by Judgment Creditors in enforcing their judgment.

·         Judgment Creditors successfully defended their judgment against multiple, drawn-out, frivolous legal attacks.

·         The fees incurred in that action are recoverable and necessary.

·         The amounts in the memorandum of costs are correct, as calculated at pages 2 through 4 of the opposition.

 

 

 

Tentative Ruling

 

The motion is denied.

The Court awards to plaintiffs all costs set forth in the Memorandum of Costs filed 4/4/22.

 

            Calculations

 

Plaintiffs have not requested permission to amend the Memorandum of Costs, but instead the opposition, at pages 2 through 4, demonstrates that the original calculations are already correct.

Distinguishably, in one cited opinion, a party seeking costs amplified the cost memo to provide information to enable the court to find that the charges were proper and necessary, not to correct the calculations.  See  Puppo v. Larosa (1924) 194 Cal. 721, 724.

Also distinguishably, another cited opinion involved a harmless procedure of not filing a motion for leave to amend a memorandum of costs, rather a motion to strike a memorandum of costs and file a new one.  See  Ferry v. O’Brien (1923) 63 Cal. App. 620, 625.

Those cited cases are off point as to the issue of correcting calculations in this matter. ).   See Bosworth v. Whitmore  (2006) 135 Cal.App.4th 536, 550 (“appellate opinions are not authority for unconsidered propositions….”).  "A legal proposition asserted without apposite authority necessarily fails."  People v. Taylor (2004) 119 Cal.App.4th 628, 643.

 

            Fees Motion Requirement

 

The case relied upon in the motion did not address whether a motion for fees was required, because the issue was whether the motion filed was timely.  See  Lucky United Properties Investment, Inc. v. Lee (2010) 185 Cal.App.4th 125, 141.  “‘A decision, of course, does not stand for a proposition not considered by the court.’"  Flatley v. Mauro (2006) 39 Cal. 4th 299, 320 (quoting Nolan v. City of Anaheim (2004) 33 Cal.4th 335, 343.

The statutory section cited in the motion used the permissive word “may,” and not a mandatory word.  “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).

Whether “may” means “shall” in a statute depends upon ascertaining legislative intent.  “Ordinarily, the word ‘may’ connotes a discretionary or permissive act; the word ‘shall’ connotes a mandatory or directory duty.”  Woodbury v. Brown-Dempsey (2003) 108 Cal. App. 4th 421, 433.

The subject statutory provision expressly provides a section both for a costs memorandum procedure, and a section for a fees motion procedure.  “The judgment creditor may claim under this section the following costs of enforcing a judgment: …. (6) Attorney’s fees, if allowed by Section 685.040.” Code Civ. Proc., § 685.070(a).

Arguably, mere dictum in a recent opinion indicates that it would be error to award judgment-enforcement attorneys’ fees without a motion for them.  See  Coastline JX Holdings LLC v. Bennett (2022) 80 Cal.App.5th 985, 1010  (“did not request attorney fees in his motion for reconsideration or in any other noticed motion.”).  However, "general observations unnecessary to the decision ... are dicta, with no force as precedent."  Fireman's Fund Ins. Co. v. Maryland Cas. Co.  (1998) 65 Cal.App.4th 1279, 1301.

A long-debated issue of requiring motions for attorneys’ fees occurred with reference to law applying to pre-judgment costs, but not judgment enforcement, as here.  A motion is required as to an attorneys' fees request (Russell v. Trans Pacific Grp. (1993) 19 Cal.App.4th 1717, 1724, 1728, superseded partially by rule as stated in Lee v. Wells Fargo Bank (2001) 88 Cal.App.4th 1187, 1197;  CRC Rule 3.1702(b)(1)), which must be timely filed (Exxess Electronixx v. Heger Realty Corp. (1998) 64 Cal. App.4th 698, 706).  But see  Lee v. Wells Fargo Bank (2001) 88 Cal. App. 4th 1187, 1198 (noting split of authority as to whether timely motion for attorney fees is required).

Because the cited statutory provisions indicate a legislative intent to allow attorneys’ fees for judgment enforcement, either via procedures of a memorandum of costs, or a motion for attorneys’ fees, and there is no governing case on point to the contrary, the Court will allow the Cost Memorandum in conjunction with extensive evidentiary support attached to the opposing memorandum of points and authorities.

 

 

            Attorneys’ Fees Award

 

The motion complains of the lack of fees information, and does not explain that there are any unreasonable or unnecessary amounts.  The opposition includes plentiful evidence in support of the award, including itemized billing statements. Hence, opposing party has not met the burden to specifically discount any attorneys’ fees amount.

“ ‘In challenging attorney fees as excessive because too many hours of work are claimed, it is the burden of the challenging party to point to the specific items challenged, with a sufficient argument and citations to the evidence. General arguments that fees claimed are excessive, duplicative, or unrelated do not suffice.’ ”  Lunada Biomedical v. Nunez (2014) 230 Cal.App.4th 459, 488.

The amount of attorneys’ fees awards is left to the court's sound discretion, and entitlement to fees is reviewed de novo. Chodos v. Borman (2014) 227 Cal.App.4th 76, 91.

“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.”  Code Civ. Proc. § 685.040.

Costs for enforcing judgments properly include attorneys’ fees.   “Judgment creditors may claim authorized costs incurred while enforcing a judgment, and when attorney fees are awarded after trial, those amounts include attorney fees. (§§ 685.040, 685.090.)  A motion for such fees, however, must be made before the judgment is satisfied in full. (§ 685.080, subd. (a).)”  Conservatorship of Ribal (2019) 31 Cal.App.5th 519, 523-24.

Therefore, the moving papers have demonstrated no bases to reduce the fees sums.