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Lucky United Properties Investment, Inc. v. Lee

May 28, 2010

LUCKY UNITED PROPERTIES INVESTMENT, INC., ET AL., CROSS-COMPLAINANTS AND RESPONDENTS,
v.
ALBERT LEE, CROSS-DEFENDANT AND APPELLANT.



(San Francisco County Super. Ct. No. 454503). Trial judge: Hon. Peter J. Busch.

The opinion of the court was delivered by: Needham, J.

CERTIFIED FOR PUBLICATION

Albert Lee (Lee) appeals from an order that granted respondents' motion to compel Lee to acknowledge the satisfaction of a prior order for attorney fees and costs (Code Civ. Proc., § 724.050) and denied in part Lee's motion for other attorney fees and costs incurred in the proceeding.*fn1 The appeal reflects the complexities that can arise when a party who prevailed on an anti-SLAPP motion to strike (§ 425.16) exercises his right to seek attorney fees and costs in connection with the motion, successfully defends against the opposing parties' appeals, and attempts to enforce the judgment against opponents who pay some of the amounts awarded but refuse to pay other amounts. We will reverse the order, but not entirely for the reasons Lee asserts.

I. FACTS AND PROCEDURAL HISTORY

The underlying lawsuit, filed back in 1999, arose out of a contract dispute over the purchase of real property in San Francisco. The facts and procedural history are set forth in our unpublished opinion, Woo v. Lien (Oct. 2, 2002, A094960), and we need not belabor them here.

In July 2006, Eric Lien (Lien) initiated the instant case by filing a malicious prosecution complaint against Lucky United Properties Investments, Inc. (Lucky), Chin Teh Shih (also known as Jessie Woo) as trustee for the Woo Family 2000 Trust, and their attorney, Mattaniah Eytan.

Lucky and Shih (referred to collectively herein as Lucky) responded to Lien's complaint by filing a special motion to strike under the anti-SLAPP statute. (§ 425.16.) The trial court granted the motion.

Lucky also filed a cross-complaint for malicious prosecution against, inter alia, Lien and his attorney, Albert Lee (Lee). In response, Lien filed a special motion to strike the cross-complaint under the anti-SLAPP statute (§ 425.16), which the trial court granted. Lucky appealed, and we affirmed the order in Lien v. Lucky United Properties Investment, Inc. (2008) 163 Cal.App.4th 620.

Lee brought his own special motion to strike Lucky's cross-complaint, which the trial court granted as well. Lucky appealed (appeal number A119134). During and after the pendency of appeal number A119134, Lee sought attorney fees or costs on a number of occasions, and it is from these efforts that the instant appeal arises.

A. Attorney Fees and Costs on Lee's Anti-SLAPP Motion to Strike

First, Lee sought reimbursement for costs and attorney fees incurred in connection with his successful motion to strike Lucky's cross-complaint.

1. Lee's Cost Bill of $415 for Filing Anti-SLAPP Motion

In July 2007, Lee filed and served a cost memorandum for $415.00, seeking to recover his filing and motion fees. The cost memorandum further indicated that a "motion will be filed," pertaining ostensibly to a motion for the attorney fees he incurred in regard to the anti-SLAPP motion.

Lucky did not contest the cost memorandum, but Lucky has never paid it.

2. November 6 Order for $26,407.50 Fees and Costs On Anti-SLAPP Motion

On November 6, 2007, the court issued a written order awarding Lee $26,407.50 ($25,500 in attorney fees and costs of $907.50) against Lucky under section 425.16, subdivision (c), as the prevailing party in the anti-SLAPP motion to strike (November 6 Order).*fn2

Lucky filed a notice of appeal from the November 6 Order of fees and costs (appeal number A120203).

3. Lee's $424 Cost Memorandum for Enforcement Costs after Judgment

When Lucky had not made any payments to Lee within a week after the November 6 Order, Lee prepared and recorded an abstract of judgment and filed notices of judgment lien on November 13, 2007. The next day, he filed a cost memorandum to recover $424 in costs: $89 associated with an abstract of judgment and judgment lien, and $335 in connection with the filing of a notice of lien in another proceeding in which Lucky was involved. Lucky did not file a motion to tax these costs.

4. Lucky's Payment toward the November 6 Order

On December 31, 2007, Lucky mailed to Lee a cashier's check for $26,819.90, as payment of the amount awarded by the November 6 Order. The cover letter stated that the cashier's check was "in a sum adequate to pay the award of fees and costs entered in [Lee's] favor on November 6, 2007," including "interest at ten percent (10%) per annum, calculated to and through January 2, 2008."

On January 22, 2008, Lee wrote to Lucky, asserting that Lucky's payment was insufficient. According to Lee, $27,246.44 in principal and interest was "required to fully satisfy the award" as of January 2, 2008, in light of the November 14, 2007 cost memorandum that had claimed $424 in costs.

B. Fees and Costs on Appeal A119134 on Merits of Motion to Strike

Next, Lee sought to recover attorney fees and costs incurred in connection with Lucky's appeal from the order granting Lee's motion to strike (appeal number A119134). Lee had abandoned the appeal, and we dismissed it on June 16, 2008. Our remittitur ordered that respondents (including Lee) were to recover costs on appeal.

1. $587.20 in Costs Pursuant to Memorandum of Costs on Appeal

In July 2008, Lee filed in the trial court a memorandum of costs on appeal, claiming $587.20 in costs he incurred in appeal number A119134. Lee also indicated that he would seek attorney fees and costs under section 425.16 by separate motion.

Lucky filed a motion to tax the costs, challenging each item on the cost memorandum. The trial court denied Lucky's motion.

2. $33,830 for Attorney Fees and Costs Pursuant to § 425.16 (August 20 Order)

Lee apparently filed the referenced motion under section 425.16 for attorney fees and costs incurred in appeal number A119134, although the motion is not included in the record. Lucky opposed the motion but did not contest the tentative ruling awarding $33,830 to Lee.

By written order entered on August 20, 2008 (August 20 Order), the court granted Lee's motion and awarded Lee $33,830.*fn3 Lee filed and served notice of entry of the order that same day.

3. Lucky's Tender of $33,830 toward the August 20 Order

On August 21, 2008, one day after the August 20 Order, Lucky mailed to Lee's attorney a cashier's check payable to Lee for $33,830.00, the amount awarded in the August 20 Order. In an accompanying letter, Lucky, through counsel, stated: "Please find enclosed payment of the award of fees in [superior court case number] 454503, made by order signed in open court on August 20, 2008 in the above captioned action. The cashier's check for $33,830.00 is tendered in full and complete satisfaction of that award and may not be used for any other purpose or applied to any other account. By accepting that check, you will acknowledge full and complete satisfaction of the award."

Lee responded to Lucky on August 25, 2008, disputing the sufficiency of the payment as follows: "I have your August 21 letter (sent to [Lee's attorney] which delayed my receipt of your check). I disagree with the statements in your letter. Your $33,830.00 payment does not fully satisfy the August 20, 2008, fee award. Payments are first applied to interest and the remaining balance of the payment to principal. ([Code Civ. Proc. § 695.220, subds. (c) & (d)]; Big Bear Properties, Inc. v. Gherman (1979) 95 Cal.App.3d 908, 915 [payments are first applied to accrued interest; payments reduce the principal judgment only after all accrued interest is paid].)" Lee thereafter deposited the cashier's check.

C. Costs on Appeal A120203 from November 6 Fees Order

Lee also sought to recover attorney fees and costs incurred in Lucky's appeal from the November 6 Order. We had affirmed that order, which awarded Lee $25,500 in attorney fees (and $907.50 in costs) as the prevailing party on his anti-SLAPP motion, on August 25, 2008. (Lucky United Properties Investment, Inc., et al. v. Albert Lee (Aug. 25, 2008, A120203) [unpub. opn.].)*fn4 Our remittitur issued on October 29, 2008, and indicated that Lee was entitled to costs on appeal.

1. $400.68 in Costs by Memorandum of Costs on Appeal

On or about October 28, 2008, Lee filed in the trial court a memorandum of costs on appeal, seeking $400.68 for costs incurred in the appeal. The memorandum indicated that an attorney fees motion would be filed pursuant to section 425.16, subdivision (c).

Lucky filed a motion to tax each item. The court denied Lucky's motion.

2. Motion for Costs and Fees

Lee sought recovery for attorney fees and costs in connection with the fee appeal, pursuant to section 425.16, subdivision (c), as part of his ...


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