Judge: Thomas D. Long, Case: BC579623, Date: 2022-08-16 Tentative Ruling

Case Number: BC579623    Hearing Date: August 16, 2022    Dept: 48

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

On March 12, 2019, the Court entered judgment in favor of Plaintiff Leonard Schrage and against Defendants Michael Schrage and Joseph Schrage.

In June 2019, Plaintiff served an order on Wells Fargo and levied $18,252.36 from Michael Schrage’s bank accounts.  (M. Schrage Decl. ¶ 2(a) & Exs. H, I.)

On January 15, 2020, Plaintiff’s counsel filed a Notice of Judgment Lien with the California Secretary of State.  (RJN, Ex. C.)

On July 29, 2020, the Court issued an Order of Seizure of Personal Property in a Private Place, authorizing the seizure and surrender of Michael Schrage’s 1999 Ferrari.  (RJN, Ex. B-1.)

On September 2, 2021, the Court of Appeal reversed Leonard Schrage’s monetary judgment against Michael Schrage.  Remittitur issued on January 11, 2022.

In May and June 2022, Michael Schrage’s counsel unsuccessfully demanded the return of the levied funds and Ferrari from Plaintiff.  (McGarrigle Decl. ¶¶ 4-6 & Exs. K, L.)

On July 22, 2022, Michael Schrage filed this motion for restitution.  The request for judicial notice is granted.

When a judgment is reversed, a reviewing court “may direct that the parties be returned so far as possible to the positions they occupied before the enforcement of or execution on the judgment” and “may order restitution on reasonable terms and conditions of all property and rights lost by the erroneous judgment or order, so far as such restitution is consistent with rights of third parties.”  (Code Civ. Proc., § 908.)  Although section 908 refers to the appellate reviewing court, “[i]t is settled law that restitution after reversal is not governed exclusively by statute [citations], and that the trial court has inherent power to afford such relief, which normally is the right of the party who secured the reversal [citation].”  (Rogers v. Bill & Vince’s, Inc. (1963) 219 Cal.App.2d 322, 324-325.)  “In modern legal usage, [restitution] has frequently been extended to include not only the restoration or giving back of something to its rightful owner, but also compensation, reimbursement, indemnification, or reparation for benefits derived from, or for loss or injury caused to, another.”  (Dunkin v. Boskey (2000) 82 Cal.App.4th 171, 198, quotation marks omitted.)

Michael Schrage seeks an order requiring Plaintiff to (a) pay the funds seized, plus ten-percent post-judgment interest from date of levy through date of restitution; (b) return the Ferrari, keys, and title; and (c) release the Judgment Lien issued pursuant to the reversed judgment.  He also seeks confirmation that the seizure and levy orders are of no force and effect, reimbursement of legal fees of $9,560.00 (see M. Schrage ¶ 14; McGarrigle Decl. ¶ 7), and retention of jurisdiction for any claims concerning damage caused by Plaintiff to the Ferrari.

The requested relief is appropriate following the reversal of the monetary judgment, which was the basis for Plaintiff seizing the funds, seizing the Ferrari, and filing the Notice of Judgment Lien.  Because there is now no monetary judgment in favor of Plaintiff and against Michael Schrage, Plaintiff must return the property taken to satisfy the prior judgment, and the Notice of Judgment Lien no longer has any legal effect.

The unopposed motion for restitution is GRANTED.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit.  Parties intending to appear are encouraged to appear remotely and should be prepared to comply with Dept. 48’s new requirement that those attending court in person wear a surgical or N95 or KN95 mask.

         Dated this 16th day of August 2022