Judge Randolph M. Hammock, Case Number: 20STCV47123, Date: 2023-10-20 Tentative Ruling

This action arises out of the sale of real property located at 5529 Vanalden Street in Tarzana, California. Plaintiff Vista Land (“Vista”) alleges it purchased the real property after being the highest bidder at a Trustee’s foreclosure sale on September 8, 2020, where it purchased the Second Deed of Trust on the property. Thereafter, Plaintiff alleges Defendants, who owned the First Deed of Trust on the property, engaged in a conspiracy to defraud Plaintiff. Plaintiff obtained a TRO on January 7, 2021, enjoining any non-judicial foreclosure action against the property.

It is further alleged that on October 6, 2021, Defendant AWBCO recorded a notice of Assignment of the Deed of Trust to R&R Real Properties, LLC (“R&R.”) Plaintiff alleges Defendant AWCBO’s attorney of record, Raymond Robinson (“Robinson”) is the Managing Member of R&R and incorporated the company. R&R allegedly conducted a nonjudicial foreclosure of the property on October 21, 2021, and then entered into a Purchase and Sale Agreement with Frank Sillman (“Sillman.”) Accordingly, Plaintiff filed a Supplemental Complaint on February 23, 2022, containing an eleventh cause of action for Embezzlement against EIJ, a twelfth cause of action for wrongful foreclosure against Robinson and eighteen other Defendants, and a thirteenth cause of action for Criminal extortion against Robinson and four other defendants. That operative pleading is now the Verified Third Amended Complaint and Second Amended Supplemental Complaint.

Defendant Greg Royston now moves to tax a portion of the Memorandums of Costs After Judgment, etc., filed by Plaintiff’s former counsel, Vip Bhola, on June 09, 2023, June 15, 2023, and October 11, 2023.

On December 15, 2021, Plaintiff Vista Land filed a motion to hold Respondents Robinson and Royston in contempt, alleging Respondents had foreclosed upon the property at 5529 Vanalden Street, Tarzana, CA, despite the existence of a preliminary injunction enjoining non-judicial foreclosure. On January 21, 2022, this court issued an Order to Show Cause re contempt against Respondents. On July 15, 2022, following an eight-hour contempt trial, this Court adjudged Respondents guilty of contempt.

In this court’s Minute Order of July 15, 2022, after adjudging Respondents guilty of contempt, this court stated that “Contemptor Vista Land, LLC will be allowed its reasonable attorney's fees and costs incurred in these contempt proceedings, per notice motion, under CCP section 1218(a).” (July 22, 2022, Minute Order, p. 2, ¶ 7.)

On June 1, 2023, after noticed motion by Attorney Vip Bhola as former counsel for Plaintiff, this court awarded Mr. Bhola an award of attorney’s fees in the total amount of $61,875.00, against Defendants Greg Royston and Raymond Robinson, jointly and severally. (See June 01, 2023, Minute Order.)

Bhola filed an Abstract of Judgment on June 6, 2023, and Writ of Execution on June 09, 2023. On June 9, 2023, June 15, 2023, and October 11, 2023, Bhola filed Memorandums of Costs After Judgment seeking, among other things, attorney’s fees incurred in enforcing the contempt judgment. (See 06/09/23, 06/15/23, and 10/11/23 Memorandums of Costs.) On October 16, 2023, Defendant Royston filed a motion to tax costs, challenging Bhola’s right to collect attorney’s fees as costs.

As a preliminary issue, the court must address the timing of the motion. As to the cost memos served on June 09, 2023, and June 15, 2023, the time to challenge them has passed. “Within 10 days after the memorandum of costs is served on the judgment debtor, the judgment debtor may apply to the court on noticed motion to have the costs taxed by the court…” (CCP § 685.070(c).) “ If no motion to tax costs is made within the time provided in subdivision (c), the costs claimed in the memorandum are allowed.” Here, even accounting for any applicable extension allowed by law, the October motion to tax the June cost memos is untimely.

Defendant Royston argues, however, that he was never served with the June costs memos, and therefore, the timing period never began running. He states in his declaration accompanying the motion to tax that he “did not receive either of [the June] cost memos, by mail or otherwise.” (Royston Decl. ¶ 3.)

This unsupported contention—without more, and in the face of valid proofs of service—is insufficient to support Royston’s position that he was never served with the cost memos. Thus, by failing to timely object to the June cost memos, Royston has waived his right to do so at this time.

The court therefore focuses its analysis on the October cost memo, to which Royston has timely moved to tax. In that memo, Bhola seeks $4,400 in attorney’s fees incurred after the contempt judgment.

First, Royston argued in his initial moving papers that post judgment attorney’s fees are only recoverable if authorized by contract. But once Bhola provided authority to the contrary in his opposition, Royston conceded in Reply that attorney’s fees may also be recovered pursuant to statute or other applicable law. (See Reply 2: 13-14 “to counsel’s surprise, the case law apparently does allow recovery of attorney’s fees incurred to collect a judgment for attorney’s fees entered pursuant to statute”].)

Indeed, “[t]he 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.” (CCP § 685.040; see also § 685.070(a)(7) [“[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.”)

Under CCP section 1218(a), “a person who…is adjudged guilty of contempt for violating that court order may be ordered to pay to the party initiating the contempt proceeding the reasonable attorney’s fees and costs incurred by this party in connection with the contempt proceeding.” Thus, where, as here, “a fee-shifting statute provides the substantive authority for an award of attorney fees, any such fees incurred in enforcement of the judgment are within the scope of section 685.040.” (Conservatorship of McQueen (2014) 59 Cal. 4th 602, 614.) Therefore, there is no dispute that attorney’s fees relating to the contempt proceeding can now be recovered as post judgment costs.

Royston then argues that Bhola cannot recover attorney’s fees on behalf of himself. As a general rule, attorneys representing themselves are not entitled to recover attorney’s fees, either by contract or sanctions. (See Trope v. Katz (1995) 11 Cal. 4th 274, 292 [reasoning that the “usual and ordinary meaning of the words ‘reasonable attorney's fees’ is the consideration that a litigant pays or becomes liable to pay in exchange for legal representation”].)

But this argument fails because Bhola was not a party to this action and is not “representing” himself. Rather, he filed the cost memorandum and opposed the motion to tax as Plaintiff’s former counsel. As former counsel for Plaintiff who obtained the contempt judgment, counsel undoubtedly has an interest and right to seek attorney’s fees. This is the same reason Bhola could recover attorney’s fees in the underlying contempt proceeding in the first place, even though Defendant also objected to him doing so at that time. (See 06/01/2023 Final Ruling at pp. 3 & 4.)

When the items on the verified cost bill appear to be proper, the burden of proof is on the contesting party. (Fennessy v. Deleuw-Cather Corp., 218 Cal. App. 3d 1192, 267 Cal. Rptr. 772 (1st Dist. 1990)). However, when items claimed as costs do not appear on their face as proper and necessary and the items are properly challenged by a motion to tax costs, the burden of establishing the necessity of the items is on the party claiming them as costs. (Whitney v. Whitney, 164 Cal. App. 2d 577, 330 P.2d 947 (1st Dist. 1958)).

Here, counsel’s costs do not appear unreasonable on their face. Defendants have not met their burden to establish that the items on the costs claimed as attorney’s fees were unreasonable or unnecessary. A challenging party’s “[g]eneral arguments that fees claimed are excessive, duplicative, or unrelated do not suffice.” (Lunada Biomedical v. Nunez (2014) 230 Cal.App.4th 459, 488.)

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.