Judge: Melvin D. Sandvig, Case: YC072542, Date: 2023-03-28 Tentative Ruling

Case Number: YC072542    Hearing Date: March 28, 2023    Dept: F47

Dept. F-47

Date: 3/28/23                                                             

Case #YC072542

MOTION TO STRIKE/TAX POST-JUDGMENT COSTS

Motion filed on 1/12/23.

MOVING PARTY: Defendant Alexandar Cvetkovich

RESPONDING PARTY: Plaintiff Cross Creek Village Homeowners Association

NOTICE: ok

RELIEF REQUESTED: An order to strike or in the alternative to tax Plaintiff’s post-judgment costs. 

RULING: The motion is granted, in part, and denied, in part, as set forth below.        

This action arose out of a dispute between Plaintiff Cross Creek Village Homeowners Association (Plaintiff) and one of its members, Defendant Alexander Cvetkovich (Defendant).  On 12/15/17, Plaintiff filed this action against Defendant for: (1) Breach of Contract, (2) Breach of CC&Rs and Rules, (3) Nuisance and (4) Fraud.  Just prior to trial, Plaintiff dismissed its nuisance and fraud causes of action.  (See RJN, Ex.B, p.1:17-19). 

On 5/13/22, after a court trial, judgment for damages in the amount of $1,100.00 was entered in favor of Plaintiff and against Defendant for both the 1^st cause of action for Breach of Contract (Settlement Agreement) and the 2^nd cause of action Breach of CC&Rs and Rules.  (See RJN, Ex.A; RJN, Ex.B).  On 5/16/22, Plaintiff recorded an Abstract of Judgment.  (RJN, Ex.C).

On 6/15/22, Plaintiff filed a Motion for Attorneys’ Fees and Costs which was granted on 9/7/22 with the Court awarding Plaintiff $48,740.45 in attorneys’ fees and $28,922.86 in court costs pursuant to Civil Code 5975(c) and Civil Code 1717(a).  (RJN, Ex.D).  On 9/8/22, the Court signed an Amended Judgment that included an award of attorneys’ fees and costs in the total amount of $78,763.31.  (RJN, Ex.E).  On 9/13/22, Plaintiff recorded an Amended Abstract of Judgment.  (RJN, Ex.F).

After recording the Amended Abstract of Judgment, Plaintiff identified that Defendant’s name in his Grant Deed was spelled slightly different than how Defendant testified at trial how his name was spelled.  (RJN, Ex.G).  The name on the Grant Deed is spelled “Aleksandar Cvetkovic”, which is slightly different than “Alexander Cvetkovich.”  Id.  On 10/10/22, Plaintiff filed an Affidavit of Identity to include the name “Aleksandar Cvetkovic” on a new Abstract of Judgment.  Id.  The Court issued a Second Amended Abstract that included the name “Aleksandar Cvetkovic,” and Plaintiff recorded the Second Amended Abstract of Judgment on 10/11/22.  (RJN, Ex.H). 

On 12/28/22, Plaintiff filed a Memorandum of Costs After Judgment (Memo of Costs).  (RJN, Ex.I).  The Memo of Costs claims post-judgment costs in the amount of $10,428.61.  Id.  On 1/12/23, Defendant filed (served on 1/9/23) the instant motion seeking an order to strike or in the alternative to tax Plaintiff’s post-judgment costs.  Plaintiff has opposed the motion. 

ANALYSIS

Plaintiff’s Request for Judicial Notice (RJN) is granted.

The motion fails for various reasons.

First, the motion is procedurally defective because it is not supported by a memorandum of points and authorities as required.  See CRC 3.1112(a)(3); CRC 3.1113(a), (b).

Second, the declaration filed in support of the motion improperly argues against the merits of the underlying judgment.  Defendant’s motion for reconsideration of the 5/13/22 judgment was denied on 10/7/22 and Defendant’s appeal has been dismissed.  (See 10/7/22 Minute Order; 2/8/23 Remittitur). 

Third, the Court finds that Plaintiff is entitled to recover the post-judgment costs, minus $172.50 from the attorneys’ fees and minus $12.25 from e-filing and service costs as indicated in the opposition, set forth in the Memorandum of Costs After Judgment filed on 12/28/22.   

CCP 685.070 provides, in relevant part:

“(a) 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.”

Further, a party seeking to recover post-judgment costs may do so by filing a memorandum of costs or a noticed motion.  See CCP 685.070(b); CCP 685.080.

ATTORNEY FEES

A judgment creditor, such as Plaintiff, is entitled to recover attorneys’ fees as costs to enforce a judgment if the underlying judgment includes an award of attorneys’ fees.  CCP 685.070(a)(6); CCP 685.040.

Specifically, CCP 685.040 provides: 

“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)

Here, prejudgment attorneys’ fees were awarded to Plaintiff based on law, Civil Code 5975(c), and contract (the CC&Rs), Civil Code 1717.  (See RJN, Ex.D, Ex.E).  As such, Plaintiff is entitled to recover its reasonable attorneys’ fees for enforcing the judgment.  See CCP 685.040; Guo (2021) 60 CA5th 745, 750; Rosen (2014) 225 CA4th 375, 382; Highland Springs Conference & Training Center (2019) 42 CA5th 416, 424; Conservatorship of McQueen (2014) 59 C4th 602, 614.

Based on the lodestar method of calculation (reasonable numbers of hours spent multiplied by reasonable hourly rate(s)), the Court finds that $8,650.00 in attorneys’ fees (reduced from the $8,822.50 listed in the Memo of Costs) were reasonably incurred by Plaintiff to enforce the judgment.  (See Speights Decl. ¶¶4-7, Ex.J).

OTHER COSTS

The Court further finds that the other costs set forth in the Memo of Costs are recoverable and properly supported: (1) $390.00 for preparing and issuing abstracts of judgment (Speights Decl. ¶8, Ex.K); (2) $341.55 for filing and indexing abstracts of judgment (Speights Decl. ¶9, Ex.L); (3) $862.31 for e-file and service fees (reduced from $874.56) (Speights Decl. ¶10, Ex.M); and (4) $2,236.32 in interest (RJN, Ex.I). 

The Court also finds that Plaintiff properly incurred costs to add “Aleksandar Cvetkovic” to the Second Amended Abstract of Judgment because the name was identified on the Grand Deed for the condominium unit that Defendant owns.  See CCP 674(c)(1); CCP 680.135.

CONCLUSION

Defendant admittedly made clerical errors in calculating the amounts of attorneys’ fees and e-filing and service fees.  (See Opposition, p.2 fn.1 and fn.2).  As such, Item 1.a.(7) in the Memo of Costs is taxed/reduced by $172.50 for an award of $8,650.00 in attorneys’ fees and Item 1.a.(8) is taxed/reduced by $12.25 for an award of $862.31 for e-file/service fees.  The motion is otherwise denied.