Judge: Nathan Nhan Vu, Case: 30-2020-01125840, Date: 2023-08-21 Tentative Ruling
Motion for Attorney’s Fees
Assignee of Record Asset Liquidation Group’s Motion for Attorney’s Fees Under California Code of Civil Procedure § 708.170(a)(2) is GRANTED.
The court ORDERS Defendant Erin Darafeev to pay Assignee of Record Asset Liquidation Group reasonable attorney’s fees in the amount of $2,050 (4.5 hours x $450 per hour) within 30 days of service of the notice of ruling.
Assignee of Record Asset Liquidation Group (Assignee) moves for an award of attorney’s fees against Judgment Debtor Erin Darafeev for her failure to appear at her judgment debtor examination.
In the same motion papers, Assignee also moves for an award of attorney’s fees against Mikhail Darafeev, Inc. for its failure to appear at its judgment debtor examination and an amended judgment naming Mikhail Darafeev, Inc. as an additional judgment debtor.
Standard for Attorney’s Fees
The Civil Procedure Code states that “[i]f an order requiring a person to appear for an examination was served by a sheriff, marshal, a person specially appointed by the court in the order, or a registered process server” and the person fails to appear “without good cause,” the court shall award “reasonable attorney’s fees incurred in the examination proceeding.” (Code Civ. Proc., § 708.170, subds. (a) & (b).)
Attorney’s Fees (Defendant Erin Darafeev)
Here, the record shows that the Application and Order for Appearance and Examination as to Defendant Erin Darafeev, (see ROA #62), was personally served upon Defendant Erin Darafeev on June 29, 2022, by a registered process server, (see ROA #66).
However, Assignee has not presented evidence in its moving papers that Defendant Erin Darafeev failed to appear for the examination without good cause. Although Assignee’s counsel provided a list of dates on which Defendant Erin Darafeev failed to appear in the memorandum of points and authorities, counsel’s argument is not evidence. (See Fuller v. Tucker (2000) 84 Cal.App.4th 1163, 1173.)
The declaration of Assignee’s Counsel only provides evidence of the attorney’s fees and costs expended. (See Decl. of David J. Miller, Esq. re: Attorney Fees and Costs (Miller Decl.); see also Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856 [“It is the duty of a party to support the arguments in its briefs by appropriate reference to the record”].)
Nonetheless, the court may consider the court files with respect to this action. These records indicate that Defendant Erin Darafeev was not served in time for the judgment debtor examination on August 22, 2022, and that Defendant Erin Darafeev did appear at the examination on October 20, 2022. (See ROA #114, #152.) The court files do show that Defendant Erin Darafeev did fail to appear for her examinations on December 1, 2022; February 1, 2023; and March 9, 2023. (ROA #184, #207, #263).
The Declaration of Assignee’s Counsel attaches a spreadsheet detailing counsel’s time and costs. (See Miller Decl., ¶ 4, Exh. B.) However, neither the declaration nor the spreadsheet provides anything more than a short description related to a large block of hours, such as 5.5 hours ascribed to “FTA Erin Darafeev.” The number of hours and amount of fees is excessive and not reasonable without an explanation as to how and why those fees were incurred.
The Declaration of Assignee’s Counsel also seeks attorney’s fees for hours expended prior to December 1, 2022. However, attorney’s fees are not available for work done prior to December 1, 2022 because Defendant Erin Darafeev had not appeared without good cause prior to that date. Defendant Erin Darafeev did not appear on August 22, 2022, because she had not been served yet and she did appear on October 20, 2022. (See ROA #114; #152.)
Finally, the Civil Procedure Code provides only for “reasonable attorney’s fees incurred in the examination proceeding.” Accordingly, it does not provide for the investigative costs or fees incurred for filing the instant motion that Judgment Creditor seeks.
The court therefore will order payment of reasonable attorney’s fees incurred in the examination proceeding of 1.5 hours for each of the 3 examinations at which Defendant Erin Darafeev failed to appear.
Attorney’s Fees (Mikhail Darafeev, Inc.) and Amending the Judgment
Assignee’s motion for attorney’s fees with respect to Mikhail Darafeev, Inc. and motion to amend the judgment to add Mikhail Darafeev, Inc. were contained within the motion for attorney’s fees with respect to Defendant Erin Darafeev.
In addition, the notice of motion did not state that Assignee was seeking to amend the judgment. Rather, this request was placed in the middle of the memorandum of points and authorities. Thus, the adequate notice of the motion to amend the judgment was not given.
The two motions relating to Mikhail Darafeev, Inc. should have been formatted as separate motions and filed and served as such. Assignee should have thus schedueld a hearing date for the two motions and pay the filing fees for them as well.
However, Assignee only reserved a hearing date for the Motion for Attorney’s Fees with respect to Defendant Erin Darafeev and only paid the filing fees for that motion.
Unfortunately, because of the court’s calendar is impacted, the court cannot accommodate unscheduled motions. The court will not consider or rule upon the two motions that were not properly filed or set on the court’s calendar.
Assignee shall give notice of this ruling.