Sixth District Decides That Judgment Creditor Is Entitled to Enforce Subsequent Attorney's Fees/Cost Order Through A Writ of Execution Even Though Creditor Satisfied Underlying Judgment During Pendency Of Fees/Costs Motion

Any Other Result Would "Undermine the Intent" of the Judgment Enforcement Statutes.

            In a case that most law professors would love (replete with convoluted facts), the Sixth District faced an appeal by a judgment creditor arising from a 2000 judgment in judgment creditor's favor that included an attorney's fees award of $22,566.92.  No matter how this tale ends, judgment debtor is going to pay a lot more than the initial fee award, again giving reinforcement to our Mission Statement about fees being the tail that wags the litigation dog (with apologies to Mike Hensley's Labrador retriever Riffle).

Judgment debtor failed to satisfy the judgment such that post-judgment fees and costs kept mounting.  Skirmishes and appeals ensued over amounts that judgment creditor sought to add to the 2000 judgment.  By July 2005, judgment creditors obtained a writ of execution in the amount of $82,848.31, with more costs memoranda and motions to tax costs being filed by the two sides.  In January 2006, judgment creditor filed an attorney's fees motion in which she sought $70,152.63 in the supporting memorandum and her attorney requested $70,156.63 in his supporting declaration.  Before the motion could be heard, judgment debtor had refinanced a house and satisfied the outstanding writ of execution by paying the sheriff a total of $87,326.29—undisputably satisfying the judgment, but not dealing with the outstanding fee request.  The trial court subsequently granted the attorney's fees request, but specified no amount, although later augmenting the 2000 judgment by $70,156.63.  Later, in June 2006, judgment creditor sought another $22,170 in fees from February 2006 to June 2006.  However, judgment creditor failed to clearly create a record of what happened on this request.  Meanwhile, in April 2007, the Sixth District ruled in one of the many appeals that the 2000 judgment had been satisfied such that the 2006 fee augmentation could not be added to that judgment, although expressing no opinion on the results of the trial court decision to award $70,156.63 in fees to judgment creditor.  In August 2007, judgment creditor filed a motion to clarify the state of affairs—claiming the $70,156.63 in fees (through February 2006), $22,170 in more fees (for February 2006 to June 2006), and $59,087.68 in yet more fees (for post-judgment efforts between June 2006 through March 2007).  After a rash of more opposition and reply paperwork, the trial court ultimately denied the August 2007 motion brought by judgment creditor and refused to issue a writ of execution, finding the April 2007 appellate opinion foreclosed adding more fees to the satisfied 2000 judgment.  Judgment creditor appealed.

The Sixth District, in Anderson v. Kellogg, Case No. H032462 (6^th Dist. Aug. 28, 2008) (unpublished)—written on behalf of a 3-0 panel by Justice Bamattre-Manoukian—reversed and remanded after sifting through the Enforcement of Judgments Law, Code of Civil Procedure sections 680.010 through 724.260, to focus on the germane provisions.  Here is a distillation of the results of the appellate court's decision:

·      The Sixth District's April 2007 prior decision was not meant to preclude ultimate enforcement of subsequent post-judgment enforcement efforts occurring after satisfaction of the 2000 judgment, including the March 2006 attorney's fees order;

·      The March 2006 award of attorney's fees could be enforced through a writ of execution as long as the monetary amount can be definitely ascertained (see sections 680.230, 680.270, 699.510(a), 699.520(e); Newland v. Superior Court, 40 Cal.App.4^th 608, 615 (1995); Alioto Fish Co. v. Alioto, 27 Cal.App.4^th 1669, 1687 (1994));

·      The March 2006 fee order could be executed upon despite the prior satisfaction of the 2000 judgment; "[t]o conclude otherwise would allow a judgment debtor to resist full payment of judgment for a period of time and force the judgment creditor to bear the costs of enforcement so long as the judgment is satisfied before disposition of the judgment creditor's pending motion for enforcement costs.  This result would undermine the intent of the statutes to reimburse the judgment creditor for costs necessarily incurred in enforcing the judgment, where the costs are neither excessive nor untimely claimed" (Slip Opn., at p. 18);

·      A remand was necessary for judgment creditor to prove that she had a definitely ascertainable sum of money owed for fees that should be the subject of a writ of execution;

·      Judgment creditor failed to create an adequate record—including an unsigned order—to demonstrate error in denying enforcement of costs between February to June 2006;

·      A judgment creditor claiming costs and fees in enforcing a judgment must file a noticed motion for same not later than two years after the costs have been incurred and before satisfaction of judgment in full (section 685.080(a)), such that judgment creditor on remand was limited to showing whether she had a definitely ascertainable amount to support issuance of a writ of execution to enforce the March 2006 fee order of $70,156.63.  Judgment creditor's post-June 2006 efforts were doomed because they were untimely requests that related to the 2000 judgment—she could not "relate back" to capture untimely post-judgment collection efforts.

Here, the bottom line is that judgment debtor paid $65,000 more already for a fee request ignored years back, and may face another $70,000-plus in exposure on remand.  However, Anderson is a good case in establishing that a judgment creditor usually will not be derailed in pursuing collection of pending fee requests through a last-minute judgment satisfaction.