Unpublished Decision Takes on Issues in Post-Judgment Phase of Case.
Although really an abuse of discretion/substantial evidence case on appeal, Terzian-Feliz v. Ajamian, Case No. A128900 (1st Dist., Div. 4 Feb. 21, 2012) (unpublished) does discuss several important principles relating to injunction bonds and post-judgment enforcement procedures.
First, recoverable attorney’s fees are “costs” that can be recovered under an injunction bond, including enforcement through a motion in the original action. (Code Civ. Proc., § 996.440(a).) This enforcement procedure is summary in nature, but allows the trial court to adjudge credibility based upon declarations/affidavits--in stark contrast to summary judgment motions where factual determinations are taboo.
Second, attorney’s fees incurred to successfully defend the entire underlying action--which means that the preliminary injunction was defeated--are recoverable in entirety subject to fee reasonableness limitations. (Russell v. United Pacific Ins. Co., 214 Cal.App.2d 78, 85-86 (1963).)
Third, a trial court has discretion to increase the injunction bond upon proof that more fees have been expended to defend the case as compared to the amount of the previously posted bond. This can be done through a motion supported by a defense declaration, subject to the lower court’s credibility determinations as to the testimony. Any opposition to an increase request proceeds based on declarations/affidavits also. (Code Civ. Proc., § 996.010(b)-(d).)
Fourth, enforcement of the injunction bond has to await entry of a final judgment in the underlying action. (§ 996.440(b).)
Fifth, a judgment creditor’s failure to acknowledge a satisfaction of judgment does allow the judgment debtor to move to compel such acknowledgment, with judgment creditor not being able to condition the acknowledgment on paying amounts in excess of the particular judgment involved--meaning that the judgment creditor may need to obtain a separate judgment to recover injunction bond and appellate costs in many cases. When a judgment debtor prevails on such a motion to compel acknowledgment of judgment satisfaction, the trial court must award reasonable fees. (Code Civ. Proc., § 724.080; Lucky United Properties Investment, Inc. v. Lee, 185 Cal.App.4th 125, 140 (2010) [discussed in our May 29, 2010 post].)