McCormick Pier Condominium Association vs Lucas Carl Steuber et al

Case Number

22CV02056

Case Type

Hearing Date / Time

Fri, 04/19/2024 - 10:00

Nature of Proceedings

Motion: Attorney Fees

Tentative Ruling

For the reasons set forth herein, the motion of judgment creditor to add post-judgment attorney fees and costs is denied.

Background:

On August 4, 2020, a judgment (Oregon Judgment) was entered in the Multnomah County, Oregon Circuit Court (Oregon Court) in favor of plaintiff McCormick Pier Condominium Association (plaintiff) and against defendants Lucas Carl Steuber and Estelle Lynn Konrad (defendants) in the total amount of $8,096.97. (Ferns decl., ¶ 3 & exhibit 1.) The Oregon Judgment includes an award of attorney fees. (Ibid.)

On June 2, 2022, a judgment was entered in this court as a sister-state judgment based upon the Oregon Judgment, and including accrued interest, in the amount of $9,781.61.

On July 26, 2022, the court issued a writ of execution as to the money judgment of this court.

On July 12, 2023, the Santa Barbara County Sheriff filed a return on the writ of execution showing that the entire judgment had been satisfied by levy.

On August 7, 2023, the Oregon Court entered a supplemental judgment adding $1,233.38 in costs and $5,288.00 in attorney fees to the Oregon Judgment. (The court grants plaintiff’s request for judicial notice of this supplemental judgment. (See Evid. Code, § 452, subd. (d)(2).))

On January 25, 2024, plaintiff filed and served this motion for an order adding the attorney fees and costs awarded in the supplemental Oregon Judgment to the judgment entered in this court.

No opposition or other response to the motion has been filed by either defendant-judgment debtor.

Analysis:

A sister-state judgment entered as a California judgment “shall have the same effect as an original money judgment of the court and may be enforced or satisfied in like manner.” (Code Civ. Proc., § 1710.35.)

“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 Civ. Proc., § 685.040.)

“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.” (Code Civ. Proc., § 685.080, subd. (a).) “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.” (Code Civ. Proc., § 685.080, subd. (b).) “The court shall make an order allowing or disallowing the costs to the extent justified under the circumstances of the case.” (Code Civ. Proc., § 685.080, subd. (c).)

There are two problems with the motion. First, it appears from the return of the writ of execution filed with the court on July 12, 2023 that the levy on September 20, 2022, by earnings withholding order included an amount that was $11.58 above the total amount then required to satisfy the judgment. “A money judgment may be satisfied by payment of the full amount required to satisfy the judgment or by acceptance by the judgment creditor of a lesser sum in full satisfaction of the judgment.” (Code Civ. Proc., § 724.010, subd. (a).) No acknowledgement of satisfaction of judgment has been filed with the court. However, the return states that payment was made to the creditor/ attorney. There is no mention of this satisfaction by levy in the moving papers.

Nevertheless, a motion pursuant to Code of Civil Procedure section 685.080, subdivision (a) must be made before the judgment is satisfied in full. (See also Conservatorship of McQueen (2014) 59 Cal.4th 602, 615–616.) Because it appears from the court’s records that the judgment was satisfied by levy prior to the making of this motion, it appears that the motion is untimely and will be denied on that ground.

Second, the procedural requirements of the motion have not been met. Under section 685.080, subdivision (b), the motion must 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 accompanying declaration of attorney Barry W. Ferns provides no statement when the costs were incurred, that the costs are correct, that the costs are reasonable and necessary, and that the costs have not been satisfied. The only statement made is that the Oregon Court entered its supplemental judgment. The supplemental Oregon Judgment identifies a different attorney as plaintiff’s counsel in the Oregon Court (thereby raising issues as to whether attorney Ferns has the requisite personal knowledge) but does not state when the fees or costs were incurred. The supplemental Oregon Judgment also states that enforcement of judgment has been undertaken not only in Oregon and California, but also in Pennsylvania. The statement by attorney Ferns is insufficient under section 685.080, subdivision (b). This is an additional and alternative ground for denial of the motion.