Judge Upinder S. Kalra, Case 19STCV35635 2022-12-12 Tentative Ruling

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On October 4, 2019, Plaintiffs John DeLong and Judith DeLong, as individual and co-trustees of the DeLong Family Trust, Dated May 20, 2005, filed a complaint against Defendants Engel & Engel, LLP, Douglas Chadwick Biggins, First American Title Company, and Does 1 through 10 (“Defendants”). The complaint was for declaratory relief. Plaintiffs alleged that defendants’ collection efforts were improper because they were undertaken against the debtors as trustees of their revokable living trusts as opposed to them individually. Engel is the judgment creditor, Biggins is Engel’s attorney, and First American is the escrow company which satisfied the judgment to remove the lien from real property in order to transfer clear title.

On November 12, 2019, Defendant Chadwick Biggins filed a Special Motion to Strike Under CCP § 425.16, which was GRANTED.

On January 3, 2020, Defendant Engel & Engel, LLP, filed a Special Motion to Strike Under CCP § 425.16, which was GRANTED.

On December 28, 2021, the Court of Appeal issued a remittitur and affirmed the court’s order granting the Anti-SLAPP Motions.

On February 1, 2022, Defendants filed a Motion for Attorneys’ Fees, which was GRANTED, in part.

On May 19, 2022, Defendants filed a Motion for Attorneys’ Fees, based on the Plaintiffs’ appeal concerning the awarding of attorneys’ fees for the Anti-SLAPP motion.

The Court’s objective is to award attorney’s fees at the fair market value based on the particular action. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132.) “The reasonable hourly rate is that prevailing in the community for similar work.” (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095.) “‘[T]he fee setting inquiry in California ordinarily begins with the 'lodestar,' i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate . . . .’” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1134.) The lodestar method is based on several factors, as relevant to each particular case: “(1) the novelty and difficulty of the questions involved, (2) the skill displayed in presenting them, (3) the extent to which the nature of the litigation precluded other employment by the attorneys, (4) the contingent nature of the fee award.” (Id. at 1132.) “The ‘‘experienced trial judge is the best judge of the value of professional services rendered in his court, and while his judgment is of course subject to review, it will not be disturbed unless the appellate court is convinced that it is clearly wrong.’’” (Id.) A negative modifier is appropriate when duplicative work is performed. (Thayer v. Wells Fargo Bank, N.A. (2001) 92 Cal.App.4th 819.)

Code of Civil Procedure, section 685.070, subdivision (a) states in pertinent part: “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.” Code of Civil Procedure section 685.040 provides that a “judgment creditor is entitled to the reasonable and necessary costs of enforcing a judgment.” Attorney’s fees incurred in enforcing a judgment are expressly excluded unless otherwise provided by law. (Id.) Attorney’s fees that are incurred in enforcing a judgment are collectible as costs “if the underlying judgment includes an award of attorney’s fees to the judgment creditor pursuant to subparagraph (A) of paragraph (10) of subdivision (a) of section 1033.5” which allows for attorney’s fees when authorized by contract. (Id; Code Civ. Proc., § 1033.5, subd. (a)(10)(A).)

In addition, Code of Civil Procedure, section 685.080 subdivision (b) requires that:

“[t]he notice of motion shall describe the costs claimed, shall state their amount, and shall be supported by an affidavit of a person who has knowledge of the facts stating that to the person's best knowledge and belief the costs are correct, are reasonable and necessary, and have not been satisfied. The notice of motion shall be served on the judgment debtor. Service shall be made personally or by mail.”

Recoverable costs include, but are not limited to those listed in Code of Civil Procedure section 685.070. (Code Civ. Proc., § 685.080, subd. (a).) In addition, a motion for costs under Section 685.080 must be filed before the judgment is satisfied in full but not later than two years after the costs have been incurred. (Id.)

Defendants move for attorney’s fees in aid of enforcement, pursuant to CCP § 685.080(a). Defendants seek $5,611.65 in fees.

On August 11, 2022, Plaintiff’s Motion to Tax costs was denied and Defense counsel requested overdue discovery be served by August 12, 2022. Plaintiffs indicated that discovery would be served on August 19, 2022. On August 22, 2022, when nothing was provided, Defense counsel reserved a hearing for a motion to compel. On August 23, 2022, Defendant received two cashier’s check: one for $76,348.98 and one for $28,933.45, totaling $105.282.44. (Motion 3: 10-17, Dec. Biggins, ¶ 3, Ex. 2.) However, this total was less than the amount due on the judgment, which is $107,155.24. (Dec. Biggins ¶ 4.) After Defense counsel informed Plaintiff’s counsel of the discrepancy, the two exchanged emails, Plaintiffs did not timely accept the offer, and Defense counsel indicated that a MC012 was filed, and this motion was filed in an abundance of caution.

Plaintiffs argue that the motion is moot because Defendants filed a an MC012 under CCP § 685.070. In that motion, Defendants claim $7,740 in attorney’s fees from May 2022 until August 2022, which Plaintiffs argue are the same as the fees as this motion, totaling $7,801.65. Plaintiff argues that the three cashier checks that were tendered by Plaintiffs, asserting that by August 24, 2022, the two previously sent checks plus a check for $5,000 satisfied the judgment. Moreover, Plaintiffs argue that Defendants overcharged the accrued interest. Under CCP § 685.030, interest ceases if the money judgment is satisfied in full or partially satisfied, on the date that the judgment is either satisfied in full or in part. Under subsection (d), the date a judgment is satisfied is the earliest of “(1) The date satisfaction is actually received by the judgment creditor, (2) The date satisfaction is tendered to the judgment creditor or deposited in court for the judgment creditor, (3) The date of any other performance that has the effect of satisfaction.” Because Plaintiffs tendered a cashier’s check on May 4, 2022, for $76,347.98, interest was satisfied at that moment. (Opp. 3: 1-7.) Lastly, Plaintiffs contend that Plaintiffs were not personally served with MC012, and thus is not effective. (Opp. 5: 2-3.)

The Court finds Plaintiffs arguments illogical and contradictory. Plaintiffs argue that the current motion for attorney’s fees is moot because the MC012 was filed, but then argue that the MC012 is ineffective. The Court agrees that MC012 should have been and is required to be served on the judgment debtor. Under CCP § 684.020(a), “when a writ, notice, order, or other paper is required to be served under this title on the judgment debtor, it shall be served on the judgment debtor instead of the attorney for the judgment debtor.” Under subsection (b), service can be completed on the judgment debtor’s attorney if the judgment debtor has served with the court requesting such service, the request and consent to receive has not been revoked by either the judgment debtor or the attorney.

Here, judgment debtor has not indicated that service was allowed by attorney. Thus, MC012 form is ineffective. However, under CCP 658.080, costs can be claimed by the judgment creditor via noticed motion. Thus, even though the MC012 was ineffective as service was not proper, the judgment creditor can still file the current motion for attorneys’ fees, pursuant to CCP § 685.080.

As such, the current motion is proper. The evidence indicates that there was a discrepancy between the totals. Plaintiffs argue that the $5,000 cashier’s check is not mentioned in the motion. However, while Plaintiffs argue that the judgment was satisfied on August 24, 2022, the cashier’s check attached to the Declaration of Randall Waier provides that the cashier’s check was not issued until August 25, 2022. The Court finds this discrepancy suspect, as Plaintiffs claim that the cashier’s check was issued on August 24^th, indicating that this motion was meritless, but when Defendants filed the current motion, the cashier’s check was only mentioned in an email. That email, as provided in the Declaration of Chad Biggins, was rejected by Defendants, where Mr. Biggins stated that the offer for the additional $5,000 was insufficient has more work had been done, and Plaintiffs accepted the offer in an untimely manner. (Dec. Biggins, Ex. 3.)

Additionally, Plaintiff’s argument about accrued interest being incorrect fails. As this Court has previously stated, the Defendants rejected the previous tendered amount.[1] This did not constitute satisfaction. Thus, interest still accrued as, under subsection (d)(1) of CCP § 685.030, money judgment is satisfied when the “date satisfaction is actually received by the judgment creditor.” Here, Defendants never received the money judgment, and indicated they were rejecting it. Thus, the accrual of interest as stated by Defendants is proper.

[1] In the Minute Order from 8/11/2022, this Court stated “Moreover, the Court in McQueen stated, “Even if payment is by certified check or similar instrument, the acceptance of which arguably constitutes satisfaction (see Cal. U. Com.Code, § 3310, subd. (a)), the judgment creditor retains, at the least, the option of rejecting the certified check and filing the motion or memorandum for enforcement costs and fees.” (Conservatorship of McQueen (2014) 59 Cal.4th 602, 615.)”