Isabel B. Chen v. Ramsey Asphalt Construction Corp.

Case Number

23CV04636

Case Type

Hearing Date / Time

Wed, 06/25/2025 - 10:00

Nature of Proceedings

Motion To Quash Order For Appearance And Examination

Tentative Ruling

For Plaintiff Isabel B. Chen: Joshua S. Hopstone, Ferguson Case Orr Paterson LLP

For Defendant Ramsey Asphalt Construction Corp.: Airene Williamson, Williamson Law Office, PC

                       

RULING

For the reasons set forth below, the motion of plaintiff to quash order for appearance and examination is granted. The Order To Appear For Examination entered in this action on April 30, 2025, is quashed.

Background

On October 18, 2023, plaintiff Isabel B. Chen (Chen) filed an original complaint in this proceeding alleging four causes of action against defendant Ramsey Asphalt Construction Corp. (Ramsey): (1) breach of contract; (2) negligence - construction defect; (3) violation of Business and Professions Code section 7159; and (4) unfair, unlawful and/or fraudulent business practices per Business and Professions Code section 17200 et seq.

On March 22, 2024, in response to a demurrer and motion to strike filed by Ramsey, Chen filed a first amended complaint (the FAC) alleging three causes of action: (1) breach of contract; (2) negligence - construction defect; and (3) unfair, unlawful and/or fraudulent business practices per Business and Professions Code section 17200 et seq. The FAC arises from an alleged failure by Ramsey to perform work in compliance with the terms of a home improvement contract entered into by Chen and Ramsey on December 6, 2021, for the paving of a driveway at residential property located at 5136 Cathedral Oaks Road, in the County of Santa Barbara, California. (FAC, ¶¶ 2-7, 13-14, 16, & 21-26.)

Ramsey answered the FAC on May 10, 2024, generally denying its allegations and asserting thirty affirmative defenses.

The matter proceeded to a five-day court trial which commenced on February 7, 2025, and concluded on February 14, 2025.

The court issued its statement of decision (the SOD) on February 14, 2025, in which the court set forth its findings for Ramsey against Chen, including a finding that Chen failed to present evidence showing any entitlement to relief as to each of the causes of action alleged in the FAC. (SOD at pp. 28-29, ¶¶ 1-3, 6, 9-10.) The court also noted that the FAC includes a prayer by Chen for attorney’s fees and found that Ramsey was entitled to reasonable attorney’s fees to be considered upon the filing of a post judgment motion to be heard on March 26, 2025. (SOD at p. 2, ll. 2-5 & p. 31, ¶ 18.) Further, the court directed Ramsey to submit a memorandum of costs within 30 days of notice of the court’s ruling, and that any motion by Chen to tax costs claimed by Ramsey must be filed within 15 days of service of the memorandum of costs by Ramsey. (SOD at p. 31, l. 28 – p. 32, l. 4.)

On February 26, 2025, Ramsey filed its motion for attorney’s fees (the Fee Motion), which was made on the grounds that the contract at issue includes a provision that permits Ramsey, as the prevailing party who obtained a favorable judgment against all of Chen’s claims, to recover attorney’s fees and costs incurred in this action. The Fee Motion also included a request for an award of costs claimed in a separate memorandum of costs filed by Ramsey on March 25, 2025, one day prior to the hearing on the Fee Motion.

The Fee Motion was opposed by Chen, who did not dispute that Ramsey’s request for an award of attorney’s fees arises from a contractual prevailing party attorney’s fee provision. (See Opp. Fee Motion at p. 1, ll. 24-25.)

On March 7, 2025, the court entered judgment (the Judgment) in favor of Ramsey and against Chen, finding that Ramsey is the prevailing party and shall recover reasonable attorney’s fees and costs.

On March 26, 2025, the court entered a Minute Order (the Minute Order) granting the Fee Motion, in which the court noted that “The contract that Chen sued upon, which is attached to the original complaint as well as admitted into evidence at trial, is a signed proposal that contains the following language: ‘If any action or proceeding is brought for the enforcement of this Agreement, or for a declaration of rights and duties hereunder, or because of an alleged dispute, breach, default or misrepresentation with any provision of this agreement, the successful or prevailing Party shall be entitled to recover attorney’s fees and other costs incurred in connection with that action or proceeding, in addition to any other relief to which the Party may be entitled.’ ”(See Minute Order.) The court further determined that “Ramsey is the prevailing party and is entitled to contractual attorney’s fees.” (Ibid.)

Pursuant to the Minute Order, the court awarded to Ramsey attorney’s fees in the amount of $78,342.90 under Civil Code section 1717, subdivision (a), to be paid by Chen. Further, the court denied Ramsey’s request for an award of costs, without prejudice, directing that any cost award would be determined pursuant to the memorandum of costs filed by Ramsey as further described above, and any motion by Chen thereafter.

On April 3, 2025, the court entered an order (the Fee Order) awarding to Ramsey attorney’s fees in the amount of $78,342.90 as noted above, and costs in the amount of $25,141.74. (See Mar. 25, 2025, Memo. Of Costs [claiming costs in the amount of $25,141.74].)

On April 18, 2025, Chen filed a notice of appeal from the Judgment and the Fee Order and on April 28, 2025, filed a notice designating the record on appeal.

On April 25, 2025, Ramsey filed an application for an order (the application) requiring Chen to appear for a judgment debtor examination. On April 30, 2025, the court entered an order to appear for examination (the ORAP), in which the court granted the application and ordered Chen to appear for an examination on June 25, 2025.

On May 22, 205, Chen filed a motion for an order (the motion or motion to quash) quashing the ORAP, or, in the alternative, staying its enforcement pending the issuance of a remittitur on appeal. The motion to quash is made on the grounds that enforcement of the Judgment and Fee Order is automatically stayed pursuant to Code of Civil Procedure sections 916 and 917.1, subdivision (d), based on Chen having timely filed an appeal from the Judgment and Fee Order, and that the ORAP was not personally served on Chen as required by Code of Civil Procedure section 708.110, subdivision (d).

The present motion is supported by the declaration of Chen’s counsel, Joshua S. Hopstone (Hopstone), who states that he received a copy of the ORAP by email, that no proof of personal service of the ORAP on Chen was filed with the court, and that, to the best of Hopstone’s knowledge and belief, the ORAP was not personally served on Chen. (Hopstone Decl., ¶ 4.)

Hopstone further states that on April 28, 2025, he sent a meet and confer letter to Ramsey’s counsel regarding the ORAP, in which Hopstone explained that enforcement of the Judgment and Fee Order is stayed pending Chen’s appeal and requested that Ramsey withdraw the ORAP, which Ramsey’s counsel declined to withdraw. (Hopstone Decl., ¶ 5 & Exhs. 1-2.)

The motion to quash is opposed by Ramsey, who asserts that attorney fee awards are not automatically stayed on appeal unless an undertaking is provided, which Chen has failed to provide. Ramsey further contends that, because Ramsey is a prevailing party under Code of Civil Procedure section 998, the Judgment and Fee Order are not automatically stayed. In addition, Ramsey asserts that Chen was properly served with the ORAP because Chen had actual notice of that order and has participated in this related proceeding.

Analysis

Under Code of Civil Procedure section 916, “[e]xcept as provided in Sections 917.1 to 917.9, inclusive, and in Section 116.810, the perfecting of an appeal stays proceedings in the trial court upon the judgment or order appealed from or upon the matters embraced therein or affected thereby, including enforcement of the judgment or order, but the trial court may proceed upon any other matter embraced in the action and not affected by the judgment or order.” (Code Civ. Proc., § 916, subd. (a).) (Note: Undesignated statutory references are to the Code of Civil Procedure unless otherwise stated.)

“Section 917.1, subdivision (a)(2) provides an exception to the stay otherwise imposed by section 916. [Citation.] Under that provision, an appeal will not stay the enforcement of a judgment or order, and thus an undertaking is required, if the judgment or order is for ‘ “[m]oney or the payment of money, whether consisting of a special fund or not, and whether payable by the appellant or other party to the action.” ’ [Citations.]

“Section 917.1 contains another exception in subdivision (d), specifying that no undertaking is required for a judgment consisting of only costs awarded under section 1021 et seq.” (Chapala Management Corp. v. Stanton (2010) 186 Cal.App.4th 1532, 1542-1543 (Chapala).)

As stated by the court in Chapala, “[t]he question at hand is whether” the Judgment and Fee Order constitute “a judgment for  ‘ “money or the payment of money” ’ under section 917.1, subdivision (a)(1)” or a “judgment ‘ “solely for costs awarded under Chapter 6 (commencing with Section 1021) of Title 14” ’ within the meaning of section 917.1, subdivision (d). The answer requires [the court] to decide whether the costs awarded ... were routine or nonroutine costs.” (Chapala, supra, 186 Cal.App.4th at p. 1545.)

For reasons further detailed above, Chen and Ramsey each sought an award of prevailing party attorney’s fees pursuant to the contract at issue in this case. (See, e.g., FAC, ¶ 19 & Prayer For Relief ¶ 2.) The court found Ramsey to be the prevailing party as to the claims alleged by Chen and determined that Ramsey was, based on the contract at issue between the parties, entitled to an award of attorney’s fees pursuant to Civil Code section 1717 which provides that reasonable attorney’s fees “shall be fixed by the court, and shall be an element of the costs of suit.” (Civ. Code, § 1717, subd. (a).) “Section 1717 ... renders the provision mutual, giving either plaintiff or defendant, if a prevailing party, a right to attorney fees on any claims based on the contract.” (Scott Co. of California v. Blount, Inc. (1999) 20 Cal.4th 1103, 1109 (Scott).)

Relevant here, “section 1032 is the fundamental authority for awarding costs in civil actions. It establishes the general rule that ‘[e]xcept as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.’ [Citation.]” (Scott, supra, 20 Cal.4th at p. 1108.) For purposes of Code of Civil Procedure section 1032, a defendant, like Ramsey here, “as against those plaintiffs who do not recover any relief against that defendant” is a “ ‘prevailing party’ ”. (Code Civ. Proc., § 1032, subd. (a)(4).)

Code of Civil Procedure section 1033.5 specifies the “items ... allowable as costs under Section 1032.” (Code Civ. Proc., § 1033.5, subd. (a).) “Section 1033.5, also part of Chapter 6, includes attorney’s fees authorized by a contract as an item of costs [citation].” (Ziello v. Superior Court (1999) 75 Cal.App.4th 651, 655, fn. 2 (Ziello).) The statute expressly provides that “[a]ttorney’s fees awarded pursuant to Section 1717 of the Civil Code are allowable costs under Section 1032 as authorized by subparagraph (A) of paragraph (10) of subdivision (a).” (Code Civ. Proc., § 1033.5, subd. (c)(5)(B).)

For reasons further discussed above, the attorney’s fees awarded to Ramsey pursuant to the Judgment and Fee Order, which are based on the contract at issue in this proceeding, “are a routine or incidental item of costs, awarded as a matter of right to the prevailing party.” (Chapala, supra, 186 Cal.App.4th at p. 1546.) For this reason, and as Chen’s appeal is effectively limited to the award of attorney’s fees and costs to Ramsey, the Judgment and the Fee Order are automatically stayed pending Chen’s appeal. (Ibid.; Code Civ. Proc., § 917.1, subd. (d); see also Ziello, supra, 75 Cal.App.4th at p. 655 [“Since the appeal is limited to the order awarding costs, including attorney’s fees, it is within the exclusion of the final provision of section 917.1, subdivision (d)....[T]hat provision eliminates the requirement of an undertaking when the appeal is solely from an award of costs.”].)

Furthermore, “[u]nder section 916, ‘the trial court is divested of’ subject matter jurisdiction over any matter embraced in or affected by the appeal during the pendency of that appeal. [Citation.] ‘The effect of the appeal is to remove the subject matter of the order from the jurisdiction of the lower court....’ [Citation.] Thus, ‘that court is without power to proceed further as to any matter embraced therein until the appeal is determined.’ [Citations.] And any ‘proceedings taken after the notice of appeal was filed are a nullity.’ [Citations.] This is true even if the subsequent proceedings cure any purported defect in the judgment or order appealed from.

“Indeed, section 916, as a matter of logic and policy, divests the trial court of jurisdiction over the subject matter on appeal—i.e., jurisdiction in its fundamental sense. [Citation.] The purpose of the automatic stay under section 916 is to preserve ‘the status quo until the appeal is decided’ [citation], by maintaining ‘the rights of the parties in the same  condition they were before the order was made’ [citation]. Otherwise, the trial court could render the ‘appeal futile by altering the appealed judgment or order by conducting other proceedings that may affect it.’ [Citation.]” (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 196-198, fn. Omitted (Varian).)

Under section 708.110 of the Enforcement of Judgments Law or “EJL”, codified as section 680.010 et seq., a judgment creditor such as Ramsey “may apply to the proper court for an order requiring the judgment debtor to appear before the court ... at a time and place specified in the order, to furnish information to aid in enforcement of the money judgment.” (Code Civ. Proc., § 708.110, subd. (a).) “If the judgment creditor has not caused the judgment debtor to be examined under this section during the preceding 120 days, the court shall make the order upon ex parte application of the judgment creditor.” (Code Civ. Proc., § 708.110, subd. (b).)

The parties do not appear to dispute that the application was filed, and the ORAP entered, pursuant to the examination procedures set forth under section 708.110 of the EJL. which “are one of several special procedures designed to aid judgment creditors. They permit the judgment creditor to examine the judgment debtor, or third persons who have property of or are indebted to the judgment debtor, in order to discover property and apply it toward the satisfaction of the money judgment.” (Imperial Bank v. Pim Electric, Inc. (1995) 33 Cal.App.4th 540, 546-547 (Imperial Bank).)

As further discussed above, the examination which is the subject of the ORAP is a supplemental proceeding intended to aid Ramsey in executing the Judgment and the Fee Order. (Imperial Bank, supra, 33 Cal.App.4th at p. 546 [noting that these proceedings are “also called proceedings in aid of execution or supplementary proceedings”].) Because the Judgment and Fee Order are automatically stayed under the circumstances present here, and because the application and ORAP concern a matter which is embraced in or affected by Chen’s appeal from the Judgment and Fee Order, the court was without jurisdiction to consider the application or issue the ORAP.

“In order to preserve the status quo and return the parties to ‘the same condition they were before the order was made’ [citation], section 916 necessarily renders any subsequent trial court proceedings on matters ‘embraced’ in or ‘affected’ by the appeal void—and not merely voidable [citation].” (Varian, supra, 35 Cal.4th at p. 198; see also Young v. Tri-City Healthcare Dist. (2012) 210 Cal.App.4th 35, 53 [general discussion].) For this and all further reasons discussed above, the ORAP is void. For this reason, the court will grant the motion and order the ORAP quashed.

As the court will grant the present motion on the grounds further discussed above, it is not necessary for the court to address the remaining points advanced by Chen in the motion. The court notes however, that there exist alternative grounds upon which the motion to quash may be granted.

Under Code of Civil Procedure section 708.110, Ramsey is required to “personally serve a copy of the order on the judgment debtor not less than 30 days before the date set for the examination. Service shall be made in the manner specified in Section 415.10.” (Code Civ. Proc., § 708.110, subd. (d).) Wholly absent from the record is any evidence or information to show that Ramsey personally served a copy of the ORAP on Chen. Ramsey also fails to cite, and the court is unaware of any, legal authority which exempts Ramsey from personally serving Chen with a copy of the ORAP on the general and conclusory grounds asserted in Ramsey’s opposition to the motion to quash.

The additional arguments advanced by Ramsey in its opposition to the motion to quash also do not change the court’s analysis.

For example, Ramsey contends that, because it is also a prevailing party under Code of Civil Procedure section 998, the Judgment and Fee Order do not include an award of routine, discretionary, or incidental items of costs. The fees awarded to Ramsey pursuant to the Judgment and Fee Order “encompass a judgment solely for costs and attorney fees awarded to the prevailing party” pursuant to the contract at issue and statutory authority further discussed above, and not Code of Civil Procedure section 998. (Chapala, supra, 186 Cal.App.4th at p. 1547.) Therefore, the court’s reasoning as set forth in the SOD and the Minute Order was not “based on the operation of that statute.” (Id. at pp. 1548-1547.)

Moreover, court records reflect that Chen did not file a motion to strike or tax any costs claimed by Ramsey in this action within the time prescribed in California Rules of Court, rule 3.1700 (b)(1). “After the time has passed for a motion to strike or tax costs or for determination of that motion, the clerk must immediately enter the costs on the judgment.” (Cal. Rules of Court, rule 3.1700(c)(4).) For these additional reasons, the award of costs in Ramsey’s favor also did not arise from the operation of Code of Civil Procedure section 998.