IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO
November 30, 2010
DIANE COCHRAN, PLAINTIFF AND RESPONDENT,
CITY OF MURRIETA, DEFENDANT; RACHAEL VAN HAASTER, REAL PARTY IN INTEREST AND APPELLANT.
APPEAL from the Superior Court of Riverside County. Gloria Trask, Judge. Reversed with directions. (Super.Ct.No. RIC414486)
The opinion of the court was delivered by: Richli J.
Cochran v. City of Murrieta CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
This appeal addresses the right to recover attorney's fees incurred in postjudgment collection efforts, pursuant to Code of Civil Procedure sections 685.040 and 685.080.*fn1
Diane Cochran (Cochran), respondent, is one of the seven remaining plaintiffs*fn2 who filed this action against the City of Murrieta in 2004, challenging its approval of a child care center and swim school owned by Rachael Van Haaster (Van Haaster), the appellant and real party in interest. This appeal involves only Cochran and Van Haaster.
In two previous appeals,*fn3 we found in favor of Van Haaster concerning her three anti-SLAPP motions and an award of attorney's fees against plaintiffs. (§ 425.16, subd. (c).)
Van Haaster now appeals from the lower court's order denying her
postjudgment motion against Cochran. The only issue involves Van
Haaster's claim for attorney's fees incurred in this case and a
related proceeding for fraudulent conveyance of real property.*fn4
We hold that Van Haaster is entitled to her postjudgment
fees incurred for collection on the judgment and remand for the trial
court to exercise its discretion in determining the amount of
II FACTUAL AND PROCEDURAL BACKGROUND
In July 2007, the court awarded Van Haaster anti-SLAAP attorney's fees in the amount of $114,010 against all plaintiffs jointly and severally. Both Cochran and plaintiff Lisa Gay assert they did not know they were parties to the present lawsuit and subject to liability for anti-SLAPP attorney's fees.
In January 2009, Van Haaster applied for an order to conduct a judgment debtor examination of Cochran, which was scheduled for March 13, 2009, and continued at Cochran's request to April 3, 2009. Cochran appeared for her examination and disclosed that, pursuant to the California Uniform Transfers to Minors Act (Prob. Code, § 3900 et seq.), she had transferred title to a rental property located on Mills Drive in Orange County to her minor daughter, Brooke Cochran (Brooke). In 1989, the rental property had been awarded to Cochran as her separate property as part of her legal separation from Thomas C. Cochran (Tom). Cochran explained the reason for the transfer was to provide her daughter with a college fund. The property was valued at $419,500 in January 2009 and received monthly rental income of $1,650. The transfer was accomplished by means of a quitclaim deed, recorded February 19, 2009, from Tom to Cochran and a grant deed, recorded March 26, 2009, from Cochran to Brooke.
On April 7, 2009, Van Haaster filed a complaint for fraudulent conveyance (Civ. Code, § 3439.04) against Cochran, Tom, and Brooke.*fn5 She also filed a notice of lis pendens against the property.
In December 2009, Van Haaster filed a motion in this case seeking to execute against the Mills Drive property, citing section 708.180 and Evans v. Paye (1995) 32 Cal.App.4th 265. Van Haaster also asked for additional attorney's fees of $23,790--$9,810 incurred in this case and $13,980 incurred in the fraudulent conveyance case action, plus costs of $627.50.*fn6 In response, Brooke reconveyed the property back to Cochran by a quitclaim deed recorded in December 2009.
At the two hearings on the motion, the trial court made the following comments:
"[M]y tentative is to find that it's moot. Since the minor, [Brooke] Cochran, transferred the property back to her mother, this motion is moot . . . the order for attorney's fees would be in the fraudulent conveyance action and is not--there is no statutory authority for me to do it here. While it would be expedient and save the court's time, I'm going to decline to do that, simply find that it's moot at this point. [¶] . . . [¶]
"With regard to attorney's fees, both on the other case, which is the fraudulent transfer case, as well as this case for the fraudulent transfer, I don't see authority for that. . . . And I will exercise my discretion and decline to award attorney's fees at this time." The court denied the motion, as well as Van Haaster's request for attorney's fees.
A. Standard of Review
The parties disagree about the proper standard of review. Cochran asserts the standard is abuse of discretion and the court could properly deny any award of fees. (Moran v. Oso Valley Greenbelt Assn. (2001) 92 Cal.App.4th 156, 160.)
Van Haaster acknowledges that "[t]he usual standard of review for an award of attorney fees is abuse of discretion." (Jaffe v. Pacelli, supra, 165 Cal.App.4th at p. 934.) But she contends that the issue here is whether the trial court had the authority to make an award for attorney's fees incurred enforcing the judgment in this action and litigating the fraudulent conveyance action--a legal issue which is reviewed novo. (Ibid.)
The trial court's comments are ambiguous. On the one hand, Judge Trask said twice that she did not believe there was statutory authority to award fees. On the other hand, she referred to "my discretion." Considering the record as a whole, we conclude that Judge Trask believed she did not have the authority, based on statute, to award fees, which is why she declined to make any award of fees at all. As such, we conduct a de novo review. (See Berti v. Santa Barbara Beach Properties (2006) 145 Cal.App.4th 70, 74.)
B. Attorney's Fees
Van Haaster argues the trial court erred by declining to award attorney's fees because the fees were incurred enforcing her anti-SLAPP judgment in the instant case and in the fraudulent conveyance action.
The original attorney's fees award in this case was ordered pursuant to the SLAPP statute. (§ 425.16, subd. (c).) The interplay of section 425.16, subdivision (c) and section 685.040 has been discussed recently in Lucky United Properties Inv., Inc. v. Lee (2010) 185 Cal.App.4th 125, 140: "Section 685.040 entitles a judgment creditor [like Van Haaster] to reasonable and necessary costs of enforcing a judgment. By the terms of the statute, attorney fees may be recovered under section 685.040 to the extent otherwise authorized by law. Attorney fees incurred to enforce payment of fees and costs awarded under section 425.16, subdivision (c), are recoverable under section 685.040. (Ketchum v. Moses [(2001) 24 Cal.4th 1122,] 1141 & fn. 6; Wanland [v. Law Offices of Mastagni, Holstedt & Chiurazzi (2006) 141 Cal.App.4th 15,] 22-23; see also Globalist Internet Technologies, Inc. v. Reda (2008) 167 Cal.App.4th 1267, 1274-1276 [attorney fees incurred in enforcing judgment, or defending its validity against a challenge in another forum, recoverable under § 685.040].)" The attorney's fees may be claimed by noticed motion. (§ 685.080.)
Applying these principles, a number of cases have held that a judgment creditor may recover attorney's fees expended as part of her efforts to collect her judgment, including separate actions. In Downen's, Inc. v. City of Hawaiian Gardens Redevelopment Agency (2001) 86 Cal.App.4th 856, 859, plaintiffs filed a petition for writ of mandate, seeking to enforce the unpaid portion of the judgment. The trial court granted the petition and entered judgment. The appellate court reasoned that "the public agency's actions necessitated the filing of a separate proceeding to enforce the unpaid inverse condemnation judgment." (Id. at p. 862.) It further held that "prevailing plaintiffs are entitled to attorney fees in an enforcement of judgment action where . . . the underlying judgment provides for such award. (Imperial Bank v. Pim Electric, Inc. (1995) 33 Cal.App.4th 540, 557-558.)" (Id. at p. 864.)
A judgment creditor is also entitled to recover attorney's fees and costs incurred in obtaining a dismissal of the judgment debtor's bankruptcy petition in bankruptcy court and opposing subsequent appeals. (Jaffe v. Pacelli, supra, 165 Cal.App.4th at p. 938; see also Chinese Yellow Pages Co. v. Chinese Overseas Marketing Service Corp. (2008) 170 Cal.App.4th 868, 885.)
Furthermore, a judgment creditor is entitled to recover attorney's fees incurred in successfully defending itself in a separate action filed by the judgment debtors that sought specific enforcement of an alleged settlement agreement, which would have reduced the judgment debtors' liability under the judgment. (Globalist Internet Technologies, Inc. v. Reda, supra, 167 Cal.App.4th at pp. 1273-1274.)
Cochran has not cited any cases in which the court denied authorized fees incurred for post-collection proceedings. Instead, Cochran argues that, because Van Haaster did not prevail on her fraudulent conveyance claim or her motion to execute in the present case, she is not a prevailing party within the meaning of section 1032, subdivisions (a) and (b), and for the purposes of applying sections 685.040 and 1033.5, subdivision (a)(10).
Section 685.040 does not require that a judgment creditor be the "prevailing party" in subsequent postjudgment proceedings, even if they involve separate actions, probably because a judgment creditor is already "the prevailing party." Section 685.040 quite simply provides that "[t]he judgment creditor is entitled to the reasonable and necessary costs of enforcing a judgment" including attorney's fees " if the underlying judgment includes an award of attorney's fees to the judgment creditor" pursuant to contract, statute or law. (§§ 685.040 and 1033.5, subd. (10).)
Notwithstanding the absence of a prevailing party requirement, Van Haaster achieved a degree of practical success by filing her fraudulent conveyance action, because it compelled Brooke to reconvey the subject property to Cochran. "'The determination of whether there is to be a prevailing party is to be made "on a practical level" after considering what each party accomplished via the litigation. [Citations.]' [Citation.]'" (Brawley v. J.C. Interiors, Inc. (2008) 161 Cal.App.4th 1126, 1137.)*fn7 Van Haaster is entitled to "reasonable and necessary" attorney's fees for her postjudgment collection efforts under section 685.040.
If the parties have further arguments about what constitutes "reasonable and necessary," they may present them to the trial court on remand for a determination of the amount of fees.
We reverse the trial court's order denying Van Haaster's motion for attorney's fees and remand to the trial court, directing it to grant the motion and exercise its discretion in determining the amount of fees to be awarded.
Van Haaster, the prevailing party, shall recover her costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
We concur: s/Ramirez P.J. s/Hollenhorst J.