McCoy Electric v. Anette Rubin and Stuart Rubin
McCoy Electric v. Anette Rubin and Stuart Rubin
Case Number
16CV03591
Case Type
Hearing Date / Time
Mon, 07/21/2025 - 10:00
Nature of Proceedings
1) Mtn for Post-Judgment Attorney's Fees; 2) Mtn for Order Adding ASR Development Co as Judgment Debtor; 3) Mtn for Order Consolidating this Action with Case No. 15CV02057
Tentative Ruling
McCoy Electric v. Anette Rubin and Stuart Rubin
Case No. 16CV03591
Hearing Date: July 21, 2025
HEARING: 1. Motion of The Las Canoas Co. dba Construction Plumbing for Post-Judgment Attorneys’ Fees
2. Motion of The Las Canoas Co. dba Construction Plumbing, McCoy Electric Corporation, and James Davis dba Wade Davis Design for an Order Adding ASR Development Co. as a Judgment Debtor
3. Motion of The Las Canoas Co. dba Construction Plumbing, McCoy Electric Corporation, and James Davis dba Wade Davis Design for an Order Consolidating this Action with Frederick A. Aspenleiter, et al., Santa Barbara County Superior Court Case No. 15CV02057.
ATTORNEYS: For Plaintiff McCoy Electric: Daniel E. Engel
For Defendants Annette Rubin and A. Stuart Rubin: Self Represented
For Cross Defendant/Cross Complainants The Las Canoas Co. dba Construction Plumbing and James Davis aka Wade Davis Design: Daniel E. Engel
For Intervening Party U.S. Real Estate Credit Holdings III-A, LP: Marsha A. Houston, Christopher O. Rivas
[For additional appearances see list.]
TENTATIVE RULING:
- The hearing on the motion of The Las Canoas Co. dba Construction Plumbing for post-judgment attorneys’ fees is continued to August 25, 2025, to allow for proper service on the Rubins.
- The Las Canoas Co. dba Construction Plumbing shall serve the Rubins with the motion and all supporting documents, as well as the opposition documents filed by USRECH and this tentative ruling, via first class mail, no later than July 23, 2025, and file proof of service with the court.
- Any opposition to the motion by the Rubins, or reply by CP to the Rubins’ opposition, shall be filed pursuant to code based on the continued hearing date.
- The motion of The Las Canoas Co. dba Construction Plumbing, McCoy Electric Corporation, and James Davis dba Wade Davis Design for an Order adding ASR Development Co. as a judgment debtor is denied without prejudice.
- The motion of The Las Canoas Co. dba Construction Plumbing, McCoy Electric Corporation, and James Davis dba Wade Davis Design for an Order consolidating this action with Case No. 15CV02057 is denied without prejudice.
Background:
This action arises out of a remodeling project at residential property located at 4347 Marina Drive, Santa Barbara, California 93110. The Property was owned by defendants and cross-complainants Annette Rubin and A. Stuart Rubin (“Rubins”).
Plaintiff and cross-defendant McCoy Electric Corporation (“McCoy”), an electrical contractor, commenced the action on August 15, 2016, claiming that it was still owed sums for labor and materials furnished at the Property. In response, the Rubins cross-complained against McCoy and its principal, Richard McCoy, for breach of contract, negligent construction, overcharging, conversion of materials, and accounting. The Rubins cross-complained against Wade Davis Design (“WDD”), The Las Canoas Co. dba Construction Plumbing (“CP”), as well as several other parties, on September 19, 2019, asserting causes of action for negligence, products liability, and breach of contract.
On October 25, 2019, CP answered the Rubins’ cross-complaint with a general denial and 18 affirmative defenses. On the same day, CP filed a cross-complaint against the Rubins for breach of written settlement agreement.
WDD filed an answer to the Rubin’s cross-complaint on October 30, 2019, asserting a general denial and 20 affirmative defenses. On April 1, 2020, WDD cross-complained against the Rubins, alleging a claim for breach of written contract.
Following several additional pleadings, amendments to pleading, additions and dismissals of various parties, several substitutions of counsel, motions for summary judgment, numerous discovery disputes, and other law and motion matters, the matter proceeded to trial.
The Rubins dismissed their cross-complaint against CP on March 11, 2022. Following the dismissal, CP recovered attorneys’ fees against the Rubins.
On August 15, 2022, following a court trial, Judgment was entered in favor of WDD, and against the Rubins, for costs in the amount of $435.00. Since that time, the amount of the judgment has increased.
On November 2, 2022, following a court trial, Judgment was entered in favor of McCoy, and against the Rubins, for $355,279.10 in damages plus $65,878.70 in attorney fees and costs. Since that time, the amount owed by the Rubins to McCoy has increased.
On July 18, 2024, U.S. Real Estate Credit Holdings III-A, LP (“USRECH”) filed its complaint in intervention for declaratory relief, alleging that, pursuant to proceedings in Riverside County Superior Court, they had obtained and levied writs of attachment on numerous entities owned by the Rubins. By way of the complaint in intervention, USRECH seeks to “assert its rights and obtain declaratory relief that this Court’s rulings are not intended to, nor shall they be interpreted to, reverse, invalidate, undermine, or modify the rulings of the Superior Court of Riverside County.” (Complaint in Intervention, ¶ 3.)
On August 8, 2024, McCoy and CP filed a cross-complaint against USRECH for declaratory relief, arguing that USRECH does not have any valid perfected attachment liens that are senior or superior to their liens. On October 11, 2024, USRECH filed a demurrer to the cross-complaint. On November 13, 2024, McCoy, CP, and Davis filed a first amended cross-complaint against USRECH.
The present motions are a continuation of certain parties’ efforts to enforce their judgments against the Rubins.
CP moves for an award of post-judgment attorney fees. The Rubins did not file an opposition or any other response to the motion. USRECH opposes the motion.
CP, McCoy, and WDD move to add ASR Development Co. (“ASR”) to the judgments as a judgment debtor based on an alter ego theory. A. Stuart Rubin and USRECH have filed oppositions to the motion.
CP, McCoy, and WDD move for an order consolidating the current action with Case No. 15CV02057. The Rubins did not file an opposition or any other response to the motion. USRECH opposes the motion.
[Note: The Rubins’ opposition to the motion to amend the judgment to add ASR as a judgment debtor was filed by attorney Bart I. Ring. On January 13, 2025, the Rubins each filed substitutions of attorney making them self-represented. There is no substitution of attorney that designates Mr. Ring as counsel of record for the Rubins. As such, the Rubins are still self-represented. If Mr. Ring is substituting into this action, he needs to file and serve a properly executed substitution of attorney.]
Analysis:
Post-Judgment Attorneys’ Fees
CP moves for an award of post-judgment attorneys’ fees in the amount of $369.204.73 and costs in the amount of $4,160.34. The motion is not brought on behalf of the other parties represented by CP’s counsel.
Service of the motion is defective as to the Rubins. Because the Rubins did not file opposition, they have not waived the defects in service.
According to the proof of service, the Rubins were served at 269 S. Beverly Dr., Suite 1455, Beverly Hills, CA 90212. There is no declaration or other evidence that this is their correct current address.
In their substitutions of attorney, filed on January 13, 2025, the Rubins list their address as 100 Wilshire Blvd., Suite 700, Santa Monica, CA 90401. The proof of service attached to the substitutions of attorney indicate that CP was served with that document. The Rubins have not filed any document since that lists a different address.
“(a) Except as otherwise provided in this title, if a writ, notice, order, or other paper is to be served by mail under this title, it shall be sent by first-class mail (unless some other type of mail is specifically required) and shall be deposited in a post office, mailbox, sub-post office, substation, mail chute, or other like facility regularly maintained by the United States Postal Service, in a sealed envelope, with postage paid, addressed as follows:
“(1) If an attorney is being served in place of the judgment creditor or judgment debtor as provided in Section 684.010 or 684.020, to the attorney at the last address given by the attorney on any paper filed in the proceeding and served on the party making the service.
“(2) If any other person is being served, to such person at the person’s current mailing address if known or, if unknown, at the address last given by the person on any paper filed in the proceeding and served on the party making the service.
“(3) If the mailing cannot be made as provided in paragraph (1) or (2), to the person at the person’s last known address.” (Code Civ. Proc., § 684.120, subd. (a), italics added.)
While the court fully understands CP’s frustration with attempting to serve the Rubins, and the documented attempts of the Rubins to avoid service of documents upon them, service at the Santa Monica address listed on their most recently filed document would be proper. The Rubins cannot avoid this service by refusing to pick their mail up or by attempting to return it to sender. A party has a duty to notify the parties and the court of any changes in address for service. (Cal. Rules of Court, rule 3.254(b)(2).)
The court will continue the hearing on the motion to allow proper service on the Rubins. If the Rubins do not file any opposition, the court intends to rule as follows:
Code of Civil Procedure section 685.040 provides:
“The 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. Attorney’s fees incurred in enforcing a judgment are included as costs collectible under this title 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.”
“[Code of Civil Procedure section 685.040] imposes just “ ‘two requirements before a motion for an award of postjudgment attorney fees may be awarded as costs: (1) the fees must have been incurred to ‘enforce’ a judgment; and (2) the underlying judgment had to include an award for attorney fees pursuant to Code of Civil Procedure section 1033.5, subdivision (a)(10)(A)....’ ” [Citation.]” (Cardinale v. Miller (2014) 222 Cal.App.4th 1020, 1025.)
The underlying judgment in this action does include an award of attorney fees and CP’s counsel is entitled to fees and costs incurred in enforcing the judgment.
Code of Civil Procedure section 685.080 provides:
“(a) The judgment creditor may claim costs authorized by Section 685.040 by noticed motion. The motion shall be made before the judgment is satisfied in full, but not later than two years after the costs have been incurred. The costs claimed under this section may include, but are not limited to, costs that may be claimed under Section 685.070 and costs incurred but not approved by the court or referee in a proceeding under Chapter 6 (commencing with Section 708.010) of Division 2.
“(b) The 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.
“(c) The court shall make an order allowing or disallowing the costs to the extent justified under the circumstances of the case.”
“[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. ‘California courts have consistently held that a computation of time spent on a case and the reasonable value of that time is fundamental to a determination of an appropriate attorneys’ fee award.’ [Citation.] The reasonable hourly rate is that prevailing in the community for similar work. [Citation.] The lodestar figure may then be adjusted, based on consideration of factors specific to the case, in order to fix the fee at the fair market value for the legal services provided. [Citation.] Such an approach anchors the trial court’s analysis to an objective determination of the value of the attorney’s services, ensuring that the amount awarded is not arbitrary. [Citation.].” (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095.)
“[T]he verified time statements of the attorneys, as officers of the court, are entitled to credence in the absence of a clear indication the records are erroneous.” (Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 396.)
“[T]rial courts must carefully review attorney documentation of hours expended” in assessing reasonable and necessary attorney fees. (Ketchum v. Moses (2001) 24 Cal.4h 1122, 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.” ’ ” (Ibid.)
“ ‘[A] reasonable hourly rate is the product of a multiplicity of factors . . . the level of skill necessary, time limitations, the amount to be obtained in the litigation, the attorney’s reputation, and the undesirability of the case.’ ” (Margolin v. Regional Planning Com. (1982) 134 Cal.App.3d 999, 1003–1004.)
“[T]he [party] . . . seeking fees and costs ‘ “bear[s] the burden of establishing entitlement to an award and documenting the appropriate hours expended and hourly rates.” [Citation.]’” (Christian Research Institute v. Alnor (2008) 165 Cal.App.4th 1315, 1320.) “‘To that end, the court may require [a] defendant[ ] to produce records sufficient to provide “‘a proper basis for determining how much time was spent on particular claims.’” [Citation.]’” (Ibid.) “The evidence should allow the court to consider whether the case was overstaffed, how much time the attorneys spent on particular claims, and whether the hours were reasonably expended. [Citation.]” (Ibid.)
“A trial court may not rubber stamp a request for attorney fees, but must determine the number of hours reasonably expended.” (Donahue v. Donahue (2010) 182 Cal.App.4th 259, 271.)
In support of the motion, CP’s counsel provides a declaration which includes his background, experience, his hourly rate of $685, a spreadsheet of claimed time spent in attempting to enforce the judgment, and a spreadsheet containing a record of the costs and expenses that were incurred.
In reviewing the spreadsheets of time spent and costs, it is apparent that much of the time, and costs, was not for enforcing the judgment against the Rubins. Rather, it was related to the priority of judgments as to other judgment creditors.
“[A] dispute over priority of judgments is not the same as enforcing those judgments.” (Slates v. Gorabi (2010) 189 Cal.App.4th 1210, 1214 (Slates).) CP’s attempt to distinguish the present case from Slates is unpersuasive. Slates makes clear that fees and costs incurred in litigating a priority dispute are not allowable fees and costs as to the underlying judgment debtor.
In Reply, CP’s counsel argues that if the court is going to disallow the fees and costs related to the priority of judgment dispute, the time should be reduced to 290.2 for a total fee award of $198,780.15, and costs should be reduced to a total of $2,966.46. In support, CP’s counsel provides another declaration with a spreadsheet that purports to identify, and subtract, entries that are solely related to the lien dispute.
The court has reviewed the entries and does not agree with CP’s counsel that the spreadsheets are accurate or that they contain only time entries for activities that were reasonable and necessary in attempting to enforce the underlying judgment.
First of all, there is a significant amount of block billing that makes it difficult, if not impossible, to separate recoverable fees and costs from unrecoverable fees and costs. For example, an entry for 7.6 hours on June 18, 2024, reads: “Letter to Scott Eisner with proof of service of notice of consumer; draft oppo to USRECH request to intervene; review USRECH sacto and orange county sheriff reports, memo re Rubin opposition to pending motions, calls to Evan Smith and Rudy Perrino (Im on vm)” Clearly, the entry contains both allowable and non-allowable items. In its Reply spreadsheet, CP claims that 2 hours of the 7.6 originally listed was related to the lien dispute. There is no explanation as to how this time was determined. Just looking at the entry, it would appear that the majority of the time would be related to the lien dispute rather than the underlying judgment against the Rubins. There are several other entries that follow that pattern of appearing to be primarily related to the lien dispute, but seemingly arbitrarily reduced by only a small amount.
“[B]lock billing is not objectionable ‘per se,’ though it certainly does increase the risk that the trial court, in a reasonable exercise of its discretion, will discount a fee request. (Christian Research Institute v. Alnor (2008) 165 Cal.App.4th 1315, 1325.) Block billing is particularly problematic in cases where there is a need to separate out work that qualifies for compensation . . . from work that does not.” (Jamamillo v. County of Orange (2011) 200 Cal.App.4th 811, 830.)
Here, the block billing has made CP’s requests appear facially excessive or not recoverable.
Additionally, some of the entries contain hours that the court does not find reasonable. For example: On August 12, 2024, CP lists 13.5 to draft and file a Reply to a second motion for charging order. The Reply is seven pages long and not complex. The time listed is excessive.
Finally, as noted above, the motion is brought solely on behalf of CP. Some of the entries clearly pertain to other parties. For example: On August 8, 2024, CP has an entry that includes, among other things, draft and file cross-complaint. The cross-complaint that was filed was not solely on behalf of CP, but McCoy as well.
The court has thoroughly reviewed all of the time entries and finds that CP has met its burden of showing entitlement to fees for 141.1 hours reasonably spent in enforcement of the judgment against the Rubins. The requested rate of $685 per hour is reasonable and comparable to other similarly skilled attorneys in Santa Barbara County. Total fees awarded will be $96,653.50. The court accepts CP’s representation, and entries included in the spreadsheet, that it incurred costs in the amount of $2,966.46 related to enforcement of the judgment against the Rubins.
Adding ASR Development Co. as a Judgment Debtor
As noted above, judgment creditors CP, McCoy, and WDD seek an order adding ASR as a judgment debtor based on the outside reverse veil piercing doctrine.
The first argument made by the Rubins, as well as USRECH, is that there was no service of the motion on ASR. The proof of service attached to the motion shows that service was made on the Rubins through the clerk of the court pursuant to Code of Civil Procedure section 1011, subdivision (b)(3), and on USRECH through its attorney of record. The Rubins have filed an opposition, addressing the merits of the motion, and do not argue that service as to them was improper. By doing so they have waived any objection to service upon them of this motion. (see Clark v. Stabond Corp. (1987) 197 Cal.App.3d 50, 59.) However, ASR has not waived any objection as to proper service. ASR has not made any appearance in this action and currently the court does not exercise jurisdiction over that entity.
Although the Rubins have waived their objections to any defect in service, as to themselves, service does not appear to be proper. As noted above, service on the Rubins was made pursuant to Code of Civil Procedure section 1011, subdivision (a)(3) which provides: “If the party’s residence is not known, any attempt of service pursuant to this subdivision may be made by delivering the notice or papers to the clerk of the court, for that party.” As discussed above, the Rubins have provided an address, in their most recent substitution of attorney forms, that can be used for proper service of documents.
The evidence establishes that A. Stuart Rubin is the Chief Executive Officer, Chief Financial Officer, Secretary, and sole Director of ASR. CP, McCoy, and WDD argue that because of this, service was proper as to ASR pursuant to Code of Civil Procedure section 416.10, subdivision (b), which provides, in relevant part:
“A summons may be served on a corporation by delivering a copy of the summons and the complaint . . . [t]o the president, chief executive officer, or other head of the corporation, a vice president, a secretary or assistant secretary, a treasurer or assistant treasurer, a controller or chief financial officer, a general manager, or a person authorized by the corporation to receive service of process.”
Here, the proof of service does not indicate that the moving parties attempted to serve ASR, by serving A. Stuart Rubin pursuant to Code of Civil Procedure section 416.10, subdivision (b), or that ASR was served in any other code-compliant way. Again, the court understands the moving parties’ frustration with the difficulty in serving parties and other entities in this case. While not giving legal advice, there are statutory procedures available to the moving parties so that service can be properly effectuated.
The motion must be denied, without prejudice, due to lack of service on ASR.
Consolidation
The motion to consolidate this case with Rubin v. Aspenleiter suffers from the same service defects as the motion for order adding ASR as a judgment debtor. In this case, the Rubins did not file an opposition and therefore did not waive any defects in service.
Further: California Rules of Court, rule 3.350 provides:
“(a) Requirements of motion
“(1) A notice of motion to consolidate must:
“(A) List all named parties in each case, the names of those who have appeared, and the names of their respective attorneys of record;
“(B) Contain the captions of all the cases sought to be consolidated, with the lowest numbered case shown first; and
“(C) Be filed in each case sought to be consolidated.
“(2) The motion to consolidate:
“(A) Is deemed a single motion for the purpose of determining the appropriate filing fee, but memorandums, declarations, and other supporting papers must be filed only in the lowest numbered case;
“(B) Must be served on all attorneys of record and all nonrepresented parties in all of the cases sought to be consolidated; and
“(C) Must have a proof of service filed as part of the motion.
“(b) Lead case
Unless otherwise provided in the order granting the motion to consolidate, the lowest numbered case in the consolidated case is the lead case.
“(c) Order
The motion is also defective because it does not comply with the above requirements.
Because service was improper, and the motion is otherwise defective, the court will deny the motion without prejudice. Doing so, and without discussing the details, the court notes that it would not be inclined to grant the motion for several other reasons.