End Result Was Denial of Most Fee Recovery To Judgment Creditor, Although Routine Costs Were Allowed To The Creditor.
In the companion cases of Devereaux v. Clontz, Case Nos. H037998 and H039324 (6th Dist. Apr. 30, 2015) (unpublished), judgment creditor sought attorney’s fees and costs in connection with post-judgment collection efforts against judgment debtor. The trial court essentially denied most post-judgment fee requests (after initially awarding fees), but did grant recovery of routine costs to judgment creditor for enforcement efforts. Both sides appealed in separate appeal causes, but the result remained the same.
The main problem for judgment creditor with respect to the denial of the post-judgment enforcement fee requests was that judgment creditor failed to move for recovery of fees earlier than two years after the costs were incurred in derogation of Code of Civil Procedure section 685.040’s noticed motion deadline. Judgment creditor argued, but to no avail, that judgment debtor filed for a Chapter 7 bankruptcy so that this tolled the deadline. The appellate court, just like the trial judge, rejected this argument because the expenses were incurred after the bankruptcy was filed such that judgment creditor only got the benefit of the extension period codified in 11 U.S.C. § 108—which the judgment creditor exceeded from a filing perspective. (Lewow v. Surfside Condominium Owners Assn., Inc., 203 Cal.App.4th 128, 132 (2012); ECC Construction, Inc. v. Oak Park Calabasas Homeowners Ass’n, 118 Cal.App.4th 1031, 1036-1037 (2004); In re Matter of M. Frenville Co., Inc., 744 F.2d 332, 334 (3d Cir. 1984).)
However, judgment creditor then argued that the prior decision to award fees, which was subsequently vacated under CCP § 473, was void, but the Court of Appeal found that the section 685.040 deadline was jurisdictional based upon reasoning from analogous cases under different statutory schemes. (E.g., Manson, Iver & York v. Black, 176 Cal.App.4th 36, 42 (2009) (CCP § 473 discretionary default relief deadline); People v. Superior Court (Brent), 2 Cal.App.4th 675, 686-687 (1992) (Health and Safety Code section 11488.4 civil forfeiture deadlines).)
That shifted consideration in the companion case to the trial judge’s award of routine costs to judgment creditor. Judgment debtor argued the trial judge had no jurisdiction to consider post-judgment costs while the other appeal was pending, but this argument was dispatched by the reasoning in Varian Medical Systems, Inc. v. Delfino, 35 Cal.4th 180, 189 (2005). With respect to the merits, judgment debtor failed to meet its opposition burden of showing the costs were unnecessary or unreasonable given judgment creditor’s prima facie presentation of the costs through a costs memorandum.
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