(City and County of San Francisco Super. Ct. No. CGC-06-454503) Superior Court of the City and County of San Francisco, No. CGC-06-454503, Paul H. Alvarado, Judge.
The opinion of the court was delivered by: Bruiniers, J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
The parties before us have been embroiled in litigation in one form or another for over a decade.*fn2 Originally a dispute between property investors, the genesis of the present conflict was a suit in which each side alleged malicious prosecution by the opposing parties and their respective counsel in the underlying property lawsuit, and each side successfully obtaining dismissal of the other's malicious prosecution claims through a special motion to strike under the anti-SLAPP (strategic lawsuit against public participation) statute. (Code Civ. Proc., § 425.16;*fn3 see Lien v. Lucky United Properties Investment, Inc., supra, 163 Cal.App.4th 620 (Lien).) Far from resolving the litigation through these dismissals, the parties have continued to litigate over the fees and costs which the anti-SLAPP statute provides to a prevailing party. (See Lucky United Properties Investment, Inc. v. Lee, supra, 185 Cal.App.4th at pp. 130-131, 136-139 (Lucky).)
The current battle is over the proper method of calculation of interest owed on the various fee and cost awards. More specifically, the question is the date on which interest begins to accrue on postjudgment awards of fees and costs. We addressed this issue in part in a prior appeal. (Lucky, supra, 185 Cal.App.4th at pp. 136-139.) Since we find our prior ruling in Lucky to be binding law of the case, we have no occasion here to revisit that holding. Lucky did not, however, expressly address when interest starts to accrue on awards for costs and fees incurred postjudgment. On remand, the trial court ruled that, under Lucky, all postjudgment awards of costs and fees that were incurred in the trial court (whether prejudgment or postjudgment) start to accrue interest on the date of entry of underlying judgment, but awards of costs and fees that were incurred on appeal constitute independent judgments and thus start to accrue interest on the dates of the awards themselves. Both sides disagree with the trial court's approach. In the published portion of our opinion, we conclude that interest on awards of fees and costs incurred postjudgment starts to accrue on the date of entry of the awards themselves. Applying this rule, in the unpublished portion of this opinion, we recalculate the principal amount of the judgment and accrued interest remaining unsatisfied as of the date of the appealed trial court order. Also in the unpublished portion of our opinion, we reject Lucky's argument that the trial judge lacked jurisdiction after a postremittitur challenge under section 170.6, and we reject the parties' other challenges to the trial court's orders.
The competing claims grew out of a lawsuit originally filed in 1999, involving a dispute over the purchase of real property in San Francisco.*fn4 (See Lien, supra, 163 Cal.App.4th at pp. 622-623.) The relevant factual background in the present dispute is set forth in Lucky's statement of facts. "In July 2006, Eric Lien (Lien) initiated the instant case by filing a malicious prosecution complaint against Lucky United Properties Investment, 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. 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]. [¶] Lee brought his own special motion to strike Lucky's cross-complaint, which the trial court granted as well. Lucky appealed (Lucky United Properties Investment v. Lien[, supra,] A119134) [app. dism.])." (Lucky, supra, 185 Cal.App.4th at p. 130.)
A. Award of Prejudgment Costs and Fees
In August 2007, Lee sought an award of the costs and attorney fees he incurred in connection with his successful anti-SLAPP motion. His related July cost memorandum for $415 was uncontested and granted by operation of law. In a November 6, 2007 order, the court awarded Lee $26,407.50 ($25,500 in attorney fees and $907.50 in additional costs) as the prevailing party on the anti-SLAPP motion pursuant to section 425.16, subdivision (c) (hereafter section 425.16(c)). (Lucky, supra, 185 Cal.App.4th at p. 131 & fn. 2.) Lucky appealed from the November 6, 2007 order. (See Lucky United Properties Investment v. Lee, supra, A120203.)
B. Pre-Lucky Awards of Postjudgment Costs and Fees; Tenders of Payment
On November 13, 2007, Lee prepared and recorded an abstract of judgment and filed notices of judgment lien. The next day (November 14), he filed a cost memorandum to recover $424 in enforcement costs for these activities. Lucky did not file a motion to tax these costs, which were thus awarded by operation of law. Much later, in a February 6, 2009 order, the trial court determined that $335 of this $424 award should have been disallowed. The court granted Lucky a $335 offset against the cost and fee awards the court made in the February 6, 2009 order. (Lucky, supra, 185 Cal.App.4th at pp. 131-136 & fn. 6, 145-146.)
On December 31, 2007, Lucky mailed to Lee a $26,819.90 check as payment for the November 6, 2007 award plus interest. Lee accepted the payment, but asserted it was insufficient to fully satisfy the judgment because it did not include the $424 cost award. (Lucky, supra, 185 Cal.App.4th at p. 132.)
On June 16, 2008, we dismissed Lucky's appeal (No. A119134) from the order that granted Lee's motion to strike. Our remittitur stated that Lee was to recover costs on appeal. Lee filed a $587.20 cost memorandum claiming these costs and the trial court denied Lucky's motion to tax. (Lucky, supra, 185 Cal.App.4th at p. 132.) Lucky paid the $587.20 cost award in August. Lee sought additional costs and fees incurred on appeal No. A119134 pursuant to section 425.16(c). In an August 20, 2008 order, the court awarded $33,830 in response to this motion. (Lucky, at pp. 132-133.)
On August 21, 2008, Lucky mailed Lee a check for $33,830, which was "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 disputed the sufficiency of the payment, but deposited the check. (Lucky, supra, 185 Cal.App.4th at p. 133.)
On August 25, 2008, we affirmed the November 6, 2007 order in appeal No. A120203. Our remittitur indicated that Lee was entitled to costs on appeal. On or about October 28, 2008, Lee filed a $400.68 cost memorandum claiming these costs and the court denied Lucky's motion to tax. (Lucky, supra, 185 Cal.App.4th at pp. 133-134.) Lucky paid the $400.68 cost award in December.
On November 13, 2008, Lucky sent Lee a "Demand for Acknowledgement Of Satisfaction Of Judgment" pursuant to section 724.050, which identified the August 20, 2008 order as the "judgment." Lee rejected Lucky's demand. (Lucky, supra, 185 Cal.App.4th at p. 134.) On December 10, Lucky filed a motion for entry of full satisfaction of judgment under section 724.050, subdivision (d), contending there had been an accord and satisfaction under California Uniform Commercial Code section 3311 by his tender of the cashier's check for $33,830. Lucky also sought an award of attorney fees and costs incurred in connection with this motion, and imposition of a $100 statutory penalty against Lee for failing to acknowledge satisfaction of the August 20, 2008 order. (Lucky, at p. 135.)
On December 2, 2008, Lee filed a comprehensive cost and fee motion, which inter alia sought fees for enforcing the November 6, 2007 order, fees incurred in appeal No. A120203, fees incurred in opposing Lucky's motion to tax October 28, 2008 cost memorandum, and fees and costs in preparing the December 2 motion itself. (Lucky, supra, 185 Cal.App.4th at pp. 134-135, fn. omitted.)
In a February 6, 2009 order, the court granted Lucky's motion for entry of full satisfaction of judgment, imposed a $100 penalty on Lee for failing to acknowledge satisfaction of judgment, and awarded Lucky $9,510 in attorney fees and costs for prevailing on the motion (see §§ 724.050, 724.080). The court also ruled on Lee's December 2, 2008 cost and fee motion as will be further discussed post. Lee's appeal of the February 6, 2009 order was decided in Lucky. (See Lucky, supra, 185 Cal.App.4th at pp. 135-136.)
C. Lucky Decision, Appeal No. 124965: Legal Framework
Before addressing the specific issues raised in Lee's current appeal, we reiterate our discussion in Lucky of several governing principles concerning judgments, costs, attorney fees, and interest--all of which played a significant role in the most recent proceedings on remand and bear directly on the instant appeal.
" 'A judgment is the final determination of the rights of the parties in an action or proceeding.' (§ 577.) There may be, in some circumstances, judgments for or against one or more of several plaintiffs or defendants in a single case (§ 578), but there is always one judgment that determines the rights of any one particular party or parties (Lucky) vis-a-vis another party on the other side of the pleadings (Lee).
"In the matter before us, there is no document in the record entitled 'Judgment.' However, the order granting Lee's anti-SLAPP motion to strike states: 'The Cross-Complaint For Damages For Malicious Prosecution is hereby stricken and cross-defendant Lee is hereby dismissed with prejudice. [¶] IT IS SO ORDERED ADJUDGED AND DECREED.' A written order of dismissal signed by the court constitutes a judgment and is effective for all purposes. (§ 581d; Cohen v. Hughes Markets, Inc. (1995) 36 Cal.App.4th 1693, 1695, fn. 1.) For purposes of this appeal, the judgment is the order dismissing Lee from the case.
"We also note that the order of dismissal does not specifically provide that Lee shall recover attorney fees and costs. This recitation is unnecessary, however, since attorney fees and costs are awarded to the prevailing party on an anti-SLAPP motion to strike as a matter of law, pursuant to section [425.16(c)]. (See also §§ 1032, 1033.5.)
"2. Amount of the Judgment
"The principal amount of a judgment is the amount of any damages awarded, plus any costs (including attorney fees) to which the prevailing party may be entitled, less any amounts paid by the judgment debtor. (§ 680.300.) Postjudgment interest accrues on the principal amount of the judgment at the rate of 10 percent per annum. (§ 685.010.) How the costs are added to the judgment, and how interest is calculated, turns on the manner in which those costs were imposed or the purpose for which the costs were incurred.
"Prejudgment Costs to Prevailing Party. As a general rule, the prevailing party may recover certain statutory costs incurred in the litigation up to and including entry of judgment. (§§ 1032, 1033.5.) These costs may include attorney fees, if authorized by contract, statute (such as the anti-SLAPP statute) or law. (§ 1033.5, subd. (a)(10).) Most costs are obtained by filing a cost memorandum, although attorney fees require a separate noticed motion. (§ 1033.5, subd. (c); Cal. Rules of Court, rule 3.1702.)[*fn5 ] Where costs are established by the judgment, but the amount of the award is ascertained at a later time, the court clerk enters the costs on the judgment after the amount is determined. ([Rule] 3.1700(b)(4); Bankes v. Lucas (1992) 9 Cal.App.4th 365, 369.) In other words, the amount of the cost award is incorporated into the judgment.
"Interest at the rate of 10 percent per annum accrues on the unpaid principal amount of the judgment (§ 685.010), including the amount of the cost award and attorney fees award (§ 680.300), as of the date of judgment entry (§ 685.020, subd. (a)). Therefore, interest ordinarily begins to accrue on the prejudgment cost and attorney fees portion of the judgment as of the same time it begins to accrue on all other monetary portions of the judgment--upon entry of judgment. (See Sternwest Corp. v. Ash (1986) 183 Cal.App.3d 74, 76-77 [once attorney fee award is determined by the trial court, it is added to the judgment, and the total judgment bears statutory postjudgment interest until paid].)
"Postjudgment Enforcement Costs. In addition to attorney fees and costs imposed as a result of prevailing in the action, postjudgment costs of enforcing the judgment may also be recovered. Some costs, such as fees incurred in regard to abstracts of judgment or notice of judgment liens, may be claimed as a matter of right under section 685.070. Other enforcement expenses incurred by a judgment creditor are recoverable if, upon noticed motion, the court determines they were reasonable and necessary costs of enforcing a judgment. (§ 685.040; see Ketchum v. Moses (2001) 24 Cal.4th 1122, 1141 & fn. 6 (Ketchum) [attorney fees incurred in regard to previous award of fees under anti-SLAPP statute are recoverable under § 685.040]; Wanland v. Law Offices of Mastagni, Holstedt & Chiurazzi (2006) 141 Cal.App.4th 15, 22-23 . . . [expenses of enforcing anti-SLAPP attorney fees award are recoverable under § 685.040].)
"When postjudgment enforcement costs are allowed, they become part of the principal amount of the judgment. (§§ 685.070, subd. (d), 685.090, subd. (a); David S. Karton, A Law Corp. v. Dougherty (2009) 171 Cal.App.4th 133, 147 . . . .) Therefore, interest accrues upon those costs at the rate of 10 percent per annum. (§ 685.010, subd. (a).)
"Appellate Court Order of Costs on Appeal. If an appeal is taken from the judgment, the party prevailing in the Court of Appeal is usually entitled to costs on appeal. ([Rule] 8.278.) The award of costs is included in the remittitur, although the amount of the award is determined in the trial court. ([Rule] 8.278(b)(1), (c).) These costs, however, are not added to the trial court judgment, but constitute a separate judgment. (Los Angeles Unified School Dist. v. Wilshire Center Marketplace (2001) 89 Cal.App.4th 1413, 1419 (Los Angeles Unified School Dist.); see . . . rule 8.278(b)(1), (c)(3).) Interest thereon begins to run from the date of the entry of the trial court's award. (See Dalzell v. Kelly (1952) 115 Cal.App.2d 60, 62-63 [costs awarded on appeal by appellate court bear interest from the date of taxing costs or expiration of time for taxing].)
"Trial Court Order of Costs on Appeal. A party may also obtain an award of costs, including attorney fees, if it has successfully defended on appeal the trial court's grant of its anti-SLAPP motion to strike. (Wilkerson v. Sullivan (2002) 99 Cal.App.4th 443, 448; Evans v. Unkow (1995) 38 Cal.App.4th 1490, 1499-1500.) It is not entirely clear whether such an award should be incorporated into the original judgment (since it is imposed by statute rather than by the Court of Appeal, determined in the trial court, and intended to protect the defendant who succeeded in the trial court on the motion to strike) or should constitute an independent judgment (since it pertains to costs incurred solely in the appellate court). (See Carpenter v. Jack in the Box Corp. (2007) 151 Cal.App.4th 454, 461 [award of attorney fees and costs under [§ 425.16(c)] does not depend on Court of Appeal making any award]; cf. Los Angeles Unified School Dist., supra, 89 Cal.App.4th at p. 1419 [costs on appeal awarded pursuant to § 1268.720, at the discretion of the appellate court, did not affect the finality of the underlying judgment].) Although in this case Lee obtained awards of attorney fees and costs for expenses incurred on appeal, we need not (and do not) decide this issue in order to resolve the appeal.
"3. Allocation of Payments on Judgment
"Payment on a judgment is allocated first to accrued interest on the principal amount, and then to the principal. (Big Bear Properties, Inc. v. Gherman [(1979)] 95 Cal.App.3d , 915 . . . ; see § 695.220.)" (Lucky, supra, 185 Cal.App.4th at pp. 136-139, fn. & parallel citation omitted.)
D. Lucky, Appeal No. 124965: Specific Rulings
In Lucky, we first reversed the trial court's denial of Lee's December 2, 2008 request for attorney fees incurred in enforcing the November 6, 2007 order. (Lucky, supra, 185 Cal.App.4th at pp. 131, 140.) The trial court had denied the enforcement fees because they were not sought before satisfaction of judgment as required by section 685.080, subdivision (a). (Lucky, at p. 141.) The trial court apparently relied on the fact that in December 2007, long before Lee filed his December 2, 2008 motion, Lucky paid Lee $26,819.90 toward the November 6, 2007 award of $26,407.50. (Id. at pp. 132, 134-135, 141; § 685.080, subd. (a).) We held that the relevant "judgment" was the June 26, 2007 dismissal of Lucky's cross-complaint against Lee as augmented by all subsequent cost and fee awards, which were incorporated into the judgment under the principles we had set forth earlier in our opinion. (Lucky, at pp. 142-145.) As of December 2007, when Lucky made the $26,819.90 payment, the judgment totaled $27,246.50 without accrued interest ($415 $26,407.50 $424). (Lucky, at pp. 141-142.) Lucky's December 2007 payment did not satisfy this amount. (Id. at p. 142.) Therefore, Lee's motion "was not barred by the time limits of section 685.080." (Lucky, at p. 142.) We reversed the trial court's denial of Lee's $2,100 fee request for enforcing the November 6 award. (Id. at p. 152.)
Second, we reversed the trial court's $335 offset of Lee's cost and fee award, which was based on a finding that $335 of the $424 in costs Lee claimed on November 14, 2007 should have been taxed. (Lucky, supra, 185 Cal.App.4th at pp. 145-147, 152.) We held that the cost award had become final long before December 2008, when Lucky first raised its objections to the cost award and long before February 2009, when the trial court reduced the award, and could not be reduced at that late date. (Id. at pp. 146-147.)
Third, we reversed the trial court's order acknowledging Lucky's satisfaction of judgment, as well as the associated imposition of a statutory penalty and award of fees and costs against Lee. (Lucky, supra, 185 Cal.App.4th at pp. 147-152.) Accepting for purposes of argument that Lucky's motion properly sought an order acknowledging satisfaction of the August 20, 2008 award alone (separate from the rest of the judgment), we still reversed because (a) Lucky's August 21 payment did not satisfy that award in full because it did not include accrued interest (id. at p. 148, fn. 13) and (b) Lee's acceptance of the payment did not effect an accord and satisfaction (id. at pp. 148-151). We reversed the order granting Lucky's motion for acknowledgment of satisfaction of judgment, reversed the imposition of the statutory penalty and the award of fees and costs, and "remanded for a determination of the amount of attorney fees and costs Lee may recover from Lucky, as the prevailing party" on the motion in light of our rulings. (Id. at p. 151.)
Fourth, we noted that "the trial court awarded Lee $4,860 out of the $22,303.75 Lee had requested for attorney fees and costs incurred in connection with his December 2008 motion, 'in view of the limited success of [the] motion.' Because we reverse the court's order as set forth herein, we remand for the further purpose of the trial court's reconsideration of the attorney fees and costs that Lee should recover in connection with his December 2008 motion." (Lucky, supra, 185 Cal.App.4th at p. 151.)
Finally, we awarded Lee his costs on appeal and remanded the matter "for further proceedings as set forth in this opinion and consistent with applicable law. (E.g., [§ 425.16(c)].)" (Lucky, supra, 185 Cal.App.4th at p. 152.)
E. Post-Lucky Cost and Fee Awards, Tenders, and Other Motions
The remittitur from Lucky, supra, 185 Cal.App.4th 125 issued on August 31, 2010, and was filed in the trial court on September 1. On September 1, Lee filed a memorandum of $2,747.69 in costs on appeal and a separate $275 cost memorandum. On September 15, Lucky paid these cost bills with interest.
On October 12, 2010, Lee filed a motion for "entry of order in compliance with court of appeal opinion." Lee asked the court to vacate the order acknowledging Lucky's satisfaction of judgment and the related statutory penalty and fee award. Lee also asked the court to award him (1) $22,303.75 in lodestar fees in lieu of the $4,860 awarded to him for bringing the December 2, 2008 motion; (2) $2,100 in lodestar fees incurred in enforcing the November 6, 2007 fee award; and (3) $335 that had been effectively deducted from his November 14, 2007 $424 cost award. He further asked the court increase the $22,303.75 and $2,100 lodestar fees by a 1.20 multiplier "to compensate for the delay in payment that occurred because of the erroneous rulings caused by Lucky," and by an additional 1.50 multiplier "because historical rates were used and because of the novelty, complexity [of the case] and the results achieved." Lee's October 12, 2010 motion also requested new cost and fee awards in the following amounts: (1) a lodestar amount of $87,510 in fees incurred since January 21, 2009, (2) a lodestar amount of $4,200 in fees for bringing the October 12, 2010 motion, (3) a 1.50 multiplier on both of these fee requests, and (4) $360 in costs incurred in bringing the October 12, 2010 motion. The trial court granted this motion in part and denied it in part in a January 31, 2011 written order that was later clarified in the court's July 26, 2011 order. The total amount of fees and costs awarded in the January 31, 2011 order was $64,073.70.
On February 1, 2011, Lucky mailed Lee a check for $64,108.80 with a cover letter stating, "Enclosed is full and complete payment of $64,073.70 pursuant to the Order, dated January 31, 2011, plus $35.10 for two (2) days of interest at 10% per annum." Lee returned the check with a letter stating, "On its face, this check is conditioned with the legally-operative statements: 'This is full and complete payment of this order dated January 31, 2011 . . . .' [¶] As you are aware, the conditions you have placed on my client's cashing of this check are improper. . . . [Y]ou are (again) illegally attempting to target payments to specific orders. [¶] Any and all payments must be unconditional."
On February 1, 2011, Lee filed another motion for new costs and fees, apparently for work performed between October 1, 2010, and December 21, 2010, and for anticipated work to litigate the February 1, 2011 motion. He also requested $844.99 in additional costs. On March 24, 2011, the court awarded $3,555 in response to this motion.
On February 11, 2011, Lee sent Lucky a settlement offer. He calculated the total amount of fee and cost awards to date, excluding appellate court awards of costs on appeal, and calculated interest on the total retroactive to the date of the original judgment, June 26, 2007, after crediting Lucky's payments to date. He contended the ...