Judge Mark E. Windham, Case 19STCP00190 2023-05-02 Tentative Ruling

Judge: Mark E. Windham, Case: 19STCP00190, Date: 2023-05-02 Tentative Ruling

Case Number: 19STCP00190 Hearing Date: May 2, 2023 Dept: 26

San Tan Heights HOA v. Bhola, et al.

MOTION FOR ATTORNEY FEES AND COSTS
(CCP § 685.040)

TENTATIVE RULING:

Plaintiff San Tan Heights Homeowners Association’s Motion for Award of Attorney Fees and Costs is CONTINUED TO JULY 3, 2023 AT 10:00 AM IN DEPARTMENT 26 OF THE SPRING STREET COURTHOUSE. BY JUNE 12, 2023, JUDGMENT CREDITOR IS TO FILE PROOF OF SERVICE OF THE NEW HEARING DATE ON JUDGMENT DEBTORS.

ANALYSIS:

Judgment Creditor San Tan Heights Homeowners Association (“Judgment Creditor”) filed an application for entry of sister state judgment against Judgment Debtors Mohammad Bhola and Jane Doe Bhola, whose true name is Malika Bhola (“Judgment Debtors”) on January 17, 2019. The Court entered judgment in the total amount of $5,996.18 the same day. On March 4, 2020, the Court granted Judgment Creditor’s motion to amend the judgment to reflect the correct amount of attorney’s fees and costs awarded in the Sister State judgment. The amended judgment was signed on September 24, 2020.

Judgment Creditor filed a motion for attorney fees and costs on November 6, 2020, which the Court granted on May 26, 2021. (Minute Order, 05/26/21.) Judgment Creditor filed the instant motion for attorney fees and costs on November 16, 2022. The hearing was set for April 12, 2023 but continued by the Court on April 4, 2023 with instruction to Judgment Creditor to give notice. (Notice of Continuance, 04/04/23.) No proof of service of the new hearing has been filed with the Court, however. Nor has any opposition has been filed to date.

Discussion

Judgment Creditor has not demonstrated notice of the new hearing was provided to Judgment Debtors. Failure to give notice of a motion is not only a violation of the statutory requirements but of due process. (Code Civ. Proc., § 1005; Jones v. Otero (1984) 156 Cal.App.3d 754, 757.) The hearing must be continued to allow for proper notice. However, a discussion on the merits of the Motion follows.

Request for Judicial Notice

Judgment Creditor asks the Court to take judicial notice of the following: (1) the relevant portions of the Master Declaration of Covenants, Conditions and Restrictions for San Tan Heights recorded in the Pinal County, Arizona Recorder's Office on January 31, 2002 as Instrument No. 2002-004822; (2) judgment entered in the Pinal County Superior Court, State of Arizona on May 9, 2012 in San Tan Heights Homeowners Association v. Mohammad Bhola and Jane Doe Bhola, case number CV2013-00123; and (3) amended judgment entered in the above-entitled action on September 24, 2020, in Los Angeles County Superior Court with case number 19STCP00190. The request is granted pursuant to Cal. Evidence Code section 452, subdivisions (c) and (d).

Entitlement to Attorney Fees and Costs

“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, subd. (a).) Code of Civil Procedure, 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.” Also, the motion must be brought with two years of the incurred costs. (Code Civ. Proc., § 685.080, subd. (a).)

As the Court previously determined, because the judgment from the underlying case awarded attorney fees, Plaintiff is also entitled to attorney fees incurred enforcing its judgment in this action pursuant to Code of Civil Procedure section 685.040. (Motion, RJN, Exh. 2, ¶4.) The Motion was timely filed with respect to fees and costs incurred from November 9, 2020 to November 8, 2022. (Motion, Baillio Decl., ¶7.)

Calculation of Attorney Fees and Costs

The Court’s objective is to award attorney fees 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 v. Moses (2001) 24 Cal.4th 1122, 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.)

Judgment Creditor submits the declaration of its attorney, Austin Baillio (“Baillio”), in support of its request for attorney’s fees. Baillio declares he billed $300.00 per hour for his work on this matter until January 1, 2022, at which time the rate increased to $325.00 per hour. (Motion, Baillio Decl., ¶6.) During that time, Baillio billed 1.3 hours of attorney time. (Id. at ¶7.) Additionally, Baillio anticipates spending 1.9 hours on the instant Motion for Attorney’s Fees. (Id. at ¶9.) Paralegals for Judgment Creditor’s attorney billed 0.8 hours at $125.00 per hour.

The Court finds the time spent and rates charged were reasonable for the collection efforts undertaken by Judgment Creditor. These efforts included (1) obtaining and recording an abstract of judgment; (2) searching for assets owned by Debtors to use to satisfy judgment; and (3) drafting the instant motion. (Id. at ¶5 and Exh. A.) Judgment Creditor also incurred costs for filing, service and other fees in connection with this action, in the amount of $381.59. (Id. at ¶15 and Exh. A.)

Therefore, Judgment Creditor is awarded attorney fees of $1,107.50 and costs of $381.59.

Conclusion

Moving party to give notice.