Judge: Michael Shultz, Case: 20CMCV00281, Date: 2023-11-02 Tentative Ruling
INSTRUCTIONS: If the parties wish to submit on the tentative ruling and avoid a court appearance on the matter, the moving party must:
1. Contact the opposing party and all other parties who have appeared in the action and confirm that each will submit on the tentative ruling.
2. No later than 4:00 p.m. on the court day before the hearing, call the Courtroom (310-761-4302) advising that all parties will submit on the tentative ruling and waive hearing; and
3. Serve notice of the Court's ruling on all parties entitled to receive service.
If this procedure is followed, when the case is called the Court will enter its ruling on the motion in accordance with its tentative ruling. If any party declines to submit on the tentative ruling, then no telephone call is necessary, and all parties should appear at the hearing. If there is neither a telephone call nor an appearance, then the matter may either be taken off calendar or ruled on.
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Case Number: 20CMCV00281 Hearing Date: November 2, 2023 Dept: A
[TENTATIVE] ORDER
I.
BACKGROUND
This
action arises from Defendants’ breach of an equipment finance agreement and
written guaranty for the purchase of washing machines. On January 26, 2022, the
Court entered judgment by default against Defendants for $201,430.48. On
October 23, 2023, Plaintiff filed an acknowledgement that the judgment was
partially satisfied.
Plaintiff
moves for attorney’s fees of $23,997 and costs of $98,721.59 incurred in
connection with judgment enforcement and recovery efforts. The fees and costs
were reasonable and necessarily incurred.
III. DISCUSSION
A
judgment creditor is entitled to reasonable and necessary costs of enforcing a
judgment. (Code
Civ. Proc., § 685.040). The judgment creditor must
establish two elements for the Court to award post-judgment fees as costs: “(1)
the fees must have been incurred to ‘enforce’ a judgment; and (2) the
underlying judgment had to include an award for attorney fees pursuant to Code
of Civil Procedure section 1033.5, subdivision (a)(10)(A)... .” (Cardinale
v. Miller (2014) 222 Cal.App.4th 1020, 1025). Here, the judgment includes
attorney’s fees pursuant to the parties’ financing agreement. (Jgmt. filed
1/26/22.)
To
determine whether fees are reasonable, the court begins with the lodestar,
which is the number of hours reasonably spent multiplied by the reasonable
hourly rate. (PLCM
Group v. Drexler (2000) 22 Cal.4th 1084, 1095.)
The court considers several factors including "the nature of the
litigation, its difficulty, the amount involved, the skill required in its
handling, the skill employed, the attention given, the success or failure, and
other circumstances in the case.’” (PLCM
Group at 1096.) The lodestar
figure can be adjusted based on the factors specific to the case. (Id.)
To
determine a reasonable market rate, "the courts will look to equally
difficult or complex types of litigation.” (Syers
Properties III, Inc. v. Rankin (2014) 226 Cal.App.4th 691, 700.)
The “market rate” is generally based on the rates prevalent in the community
where the court is located. (Id.) The trial court is in the best
position to value the services rendered by the attorneys in his or her
courtroom for the type of litigation at issue.
The
Court finds that Plaintiff’s counsel’s fee request of $285 per hour is
reasonable. The fees incurred are supported by the declarations, evidence, and contemporaneous
billing records.
In
enforcing the judgment, Plaintiff incurred attorney’s fees totaling $23,997.00.
(Decl. of Jennifer Witherell, Ex. 3, .pdf p. 57.) Plaintiff continued to maintain contact with
the Defendants with respect to paying the judgment and to recover and sell the
equipment at issue. Plaintiff had to pay rent to and communicate with the
landlord of the premises, 60 East 34th Street Corp., (“Landlord”)
where the equipment was kept in order to safeguard it for subsequent
repossession. Plaintiff permitted Defendant Speck to find a buyer for the
equipment, however, Defendant Speck removed the equipment including copper
piping for which Plaintiff incurred costs to restore. Defendant Speck never remitted
the sale price of the equipment to Plaintiff.
Plaintiff
was required to defend an action filed by the Landlord for additional rent and
theft of the copper piping, which action Plaintiff settled for $60,000. Plaintiff
was required to file a claim against Fidelity Title after discovering that
Defendant Speck sold his home, although Plaintiff’s abstract of judgment
remained on title. The judgment was not paid out of escrow. Accordingly, the
Court finds that the services provided were necessary and reasonable to enforce
the judgment.
The
Court finds that the costs of $98,721.59 consisting of $38,721.59 to rent the
premises to preserve the equipment and $60,000 in settlement of the Landlord’s
suit to recover additional rent and replace the copper piping are reasonable
and necessary. (Tennant Decl., Exhibit 4.)
IV. CONCLUSION
Based
on the foregoing, the Court GRANTS Plaintiff’s motion for post-judgment fees
and costs as requested, without modification.