Judge Randolph M. Hammock, Case 19STCV19818 2022-08-24 Tentative Ruling

Plaintiff’s Third Amended Complaint alleges causes of action for quiet title (COAs 1-4), conversion (5, 7), fraud (6, 9, 10), and cancellation of written instrument (8) against the record owners of four different properties. Plaintiff alleges he is the true owner of the properties. On October 8, 2019, the Court ordered this case related to the UD action (19CHUD01214) filed in the Chatsworth Courthouse.

When an injunction is granted, the applicant for the injunction must provide an undertaking that he or she will pay any damages that the enjoined party may sustain as a result of the injunction. (§ 529, subd. (a); ABBA Rubber Co. v. Seaquist (1991) 235 Cal.App.3d 1, 10.) Liability on this bond may be enforced on a motion as part of the original action. (§ 996.440, subd. (a); Grade–Way Construction Co. v. Golden Eagle Ins. Co. (1993) 13 Cal.App.4th 826, 829–833. If sought, judgment must be entered against the bond's principal (and surety) unless an affidavit in opposition to the motion to enforce the bond is filed, showing facts “as may be deemed by the judge hearing the motion” to be sufficient to present a triable issue of fact. (§ 996.440, subd. (d).) If such a showing is made, a trial on those issues is conducted after discovery. (Id.)

In this matter, On September 17, 2019, this court signed an order enjoining Defendant Cameron Orozco from transferring the Sultus Property until the underlying case was resolved. Plaintiff posted a $50,000 undertaking on October 15, 2019. This action was subsequently dismissed without prejudice on January 5, 2022. Defendant now moves for an order releasing the $50,000 deposited to Defendant pursuant to CCP Section 996.440. Defendant attests he has sustained damages in excess of $50,000 consisting of attorney’s fees and damages to his credit and reputation due to the foreclosure on the property. (Orozco Decl. ¶¶ 5, 6.)

This court notes that Plaintiff Tim Cullen is now deceased. It also does not appear that a successor, beneficiary, or personal representative has continued the action in Plaintiff’s place. An estate beneficiary, or a successor representative on their behalf, may enforce liability on a personal representative's bond against both the representative and the surety. (Code Civ. Proc., § 996.410, subd.(a); Prob. Code § 9822.)

The only objection to the motion was filed by Plaintiff’s former counsel, Amanda Rokita. Rokita claims to have an attorney’s lien and to be entitled to a portion of the funds. Defendant argues, however, that Rokita has no standing to object to the claim. “Appellate courts have consistently held that the trial court in the underlying action has no jurisdiction to determine the existence or validity of an attorney's lien on the judgment. [Citations.] The trial court does have fundamental jurisdiction over the subject matter and over the parties. Nevertheless, because the attorney is not a party to the underlying action and has no right to intervene, the trial court acts in excess of its jurisdiction when it purports to determine whether the attorney is entitled to foreclose a lien on the judgment. [Citations.] Nor can the court entertain a motion to terminate the lien. [Citation.] After the client obtains a judgment, the attorney must bring a separate, independent action against the client to establish the existence of the lien, to determine the amount of the lien, and to enforce it.” (Carroll v. Interstate Brands Corp. (2002) 99 Cal. App. 4th 1168, 1173.) Thus, it would appear this court lacks jurisdiction to entertain Rokita’s lien.

Because there is no opposition, judgment must be entered for Defendant. (§ 996.440, subd. (d).) Even assuming that Rokita did have standing, her arguments fail. Counsel argues the motion is premature because the time for appeal has not yet expired. A notice of appeal must be filed within 60 days of service of notice of entry of judgment or within 180 days of entry of judgment, whichever is earliest. (Cal. Rules of Court, Rule 8.104(a).) Here, Defendant served notice of the entry of judgment on February 10, 2022. (See Notice, 02/10/22.) From this date, Plaintiff would have until on or about April 10, 2022, to appeal. Defendant filed the instant motion on July 21, 2022, after the time to appeal had expired. Thus, the motion is appropriately timed.

Rokita next argues Defendant Orozco is not entitled to the funds because he violated the injunction in February of 2020 by obtaining a Second Deed of Trust on the Subject Property with Vision Capital, Inc. in the amount of $350,000. (Opp. 5: 10-11.) Even assuming this is true, Rokita has not cited authority showing this fact would prevent Defendant from recovering the subject funds.

Rokita also argues that her Notice of Lien for unpaid attorney’s fees, filed March 9, 2022, takes priority over Defendant’s claim to recover the funds. Rokita’s authority—which only states general propositions on the law of attorney’s liens—is inapposite. In Sicilano, an attorney filed an action to recover fees on a lien from his own former client. (Siciliano v. Fireman's Fund Ins. Co. (1976) 62 Cal. App. 3d 745.) Moreover, permitting an attorney’s lien to take priority in this situation appears illogical. As Defendant notes, the purpose of the bond is to compensate Defendant in the event the injunction was defeated. (Top Cat Productions, Inc. v. Michael's Los Feliz (2002) 102 Cal.4th 474, 478. [“The undertaking is designed to compensate the defendants in the event, however unlikely, that the preliminary injunction is finally determined to have been unjustified.”].) Allowing Rokita to recover a portion of the fees would effectively leave Defendant on the hook for a portion of the non-prevailing party’s attorney’s fees. Rokita cites no authority for this result, and her interpretation would seem to defeat the purpose of a bond.

Indeed, Rokita may certainly have a lien on funds that would be paid to her former client (or to his Estate); after all, he was the Plaintiff in the case. However, it once again defies common sense that she would have attorney’s fee lien on funds he may have to pay (or does in fact pay) to the Defendants. Any money owed to her was and is the responsibility of the Plaintiff (or his Estate). The Defendants do not owe her anything as to her attorney’s fees. However, if the Defendants were going to pay money to the Plaintiff (or his Estate) as part of a settlement or judgment they would have to honor or protect her lien request. It’s that simple.

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept49@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.