Filed 1/22/20 Hadaegh v. Khaligh CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

FRED Y. HADAEGH,

Plaintiff and Respondent,

v.

SHAHZAD KHALIGH,

Defendant and Appellant.

B291303

(Los Angeles County

Super. Ct. No. BC579732)

APPEAL from an order of the Superior Court of Los Angeles County, David S. Cunningham, Judge. Reversed and remanded.

Greines, Martin, Stein & Richland and Marc J. Poster for Defendant and Appellant.

Eanet, Matthew L. Eanet and Brian D. Lauter for Plaintiff and Respondent.

Defendant Shahzad Khaligh appeals from an order awarding attorneys’ fees and costs to plaintiff Fred Y. Hadaegh after the trial court entered judgment on Hadaegh’s action to enforce a prior judgment. Hadaegh’s complaint also had alleged causes of action against Khaligh and other defendants for fraud, fraudulent transfer, aiding and abetting fraudulent transfer, civil conspiracy, and resulting trust. After the trial court granted Hadaegh’s motion for judgment on the pleadings on his cause of action on the judgment, Hadaegh continued to litigate against Khaligh and the other defendants for 15 months before voluntarily dismissing the remaining causes of action. The trial court entered judgment, which we affirmed in Hadaegh v. Khaligh (June 24, 2019, B286461 [nonpub. opn.]) (Hadaegh I).

On appeal, Khaligh contends the fee award was not authorized by Code of Civil Procedure section 685.040, which allows a judgment creditor to recover the reasonable and necessary attorneys’ fees incurred in enforcing a judgment “if the underlying judgment includes an award of attorney’s fees to the judgment creditor.” Khaligh argues the underlying judgment did not “include” an award of attorneys’ fees because the attorneys’ fees awarded in the judgment were discharged in Khaligh’s bankruptcy proceeding, although the bankruptcy court ruled the judgment itself was nondischargeable. Khaligh’s argument has been forfeited in part, and otherwise lacks merit.

Khaligh also argues the trial court abused its discretion in awarding fees incurred by Hadaegh in litigating his remaining causes of action after the trial court granted his motion for judgment on the pleadings on the cause of action on the judgment because the fees were not necessary for enforcement of the judgment. Khaligh is correct. We reverse and remand for the trial court to determine the reasonable and necessary attorneys’ fees Hadaegh incurred on his cause of action on the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

A. Prior Arbitration and Bankruptcy Proceedings
B.
On October 2, 2001 an arbitrator awarded Hadaegh $100,000 against Khaligh pursuant to an April 1994 settlement agreement between the parties. The arbitrator awarded Hadaegh over $300,000 in attorneys’ fees based on the provision in the agreement that stated, “In case any party to this Agreement brings a legal action to protect or enforce the party’s rights hereunder, the prevailing party in such litigation shall be entitled to reasonable attorneys’ fees and other costs in the conduct of such litigation.”

On December 16, 2002 Khaligh filed a voluntary petition for bankruptcy under Chapter 7 of the United States Bankruptcy Code (11 U.S.C. §§ 701-784) (Chapter 7 proceeding). Hadaegh filed an adversary proceeding in the Chapter 7 proceeding to determine the nondischargeability of Khaligh’s $100,000 debt. On March 31, 2003 the bankruptcy court granted Khaligh a discharge in the Chapter 7 proceeding.

In 2004 Hadaegh filed a petition in the superior court to confirm the $100,000 arbitration award. The court granted Hadaegh’s petition, and on April 15, 2004 the court entered a judgment against Khaligh (2004 judgment). The 2004 judgment awarded Hadaegh “$100,000.00, together with interest . . . and costs and expenses of this proceeding in the sum of $____, as ordered by the Court.” On October 20, 2004 the trial court awarded Hadaegh $7,000 in attorneys’ fees and $200.10 in costs incurred in seeking confirmation of the arbitration award. Khaligh did not appeal the 2004 judgment or subsequent order.

Hadaegh then filed a motion for summary judgment in the adversary proceeding. The bankruptcy court granted Hadaegh’s motion and entered a judgment excepting from discharge the 2004 judgment in the amount of $100,000 plus interest. However, the bankruptcy court found the $7,000 in attorneys’ fees and $200.10 in costs were dischargeable. Khaligh appealed, and the judgment was affirmed. (In re Khaligh (Bankr. 9th Cir. 2006) 338 B.R. 817; In re Khaligh (9th Cir. 2007) 506 F.3d 956.) Hadaegh did not cross-appeal the nondischargeability of the attorneys’ fees and costs. (In re Khaligh, supra, 338 B.R. at p. 823.)

C. Trial Court Proceedings
D.
1. Hadaegh’s action to enforce the 2004 judgment
2.
On August 26, 2015 Hadaegh filed the operative first amended complaint, alleging a cause of action on the 2004 judgment against Khaligh; causes of action for fraud, fraudulent transfer, aiding and abetting fraudulent transfer, and civil conspiracy against Khaligh, Benjamin Toufer, and Forough Etelaei; and a cause of action for resulting trust against Khaligh, Toufer, Etelaei, and First General Bank. As to his first cause of action, Hadaegh sought a judgment against Khaligh for $213,698.63 plus interest. As to his remaining causes of action, Hadaegh sought “[a]ctual damages in an amount according to proof, in excess of $213,698.63”; to set aside the transfer from Khaligh to Toufer of real property located on Arrowroot Lane in Rancho Palos Verdes (Arrowroot property) to the extent necessary to satisfy the 2004 judgment; a temporary restraining order enjoining defendants from disposing of assets before judgment; a lien on the Arrowroot property; to hold the Arrowroot property in a constructive trust in favor of Hadaegh; and punitive and exemplary damages.

Hadaegh filed a motion for judgment on the pleadings as to his cause of action on the judgment, in which he requested entry of a judgment in the amount of $223,120.96 based on the 2004 judgment plus accrued interest. On June 6, 2016 the trial court granted Hadaegh’s motion for judgment on the pleadings but denied his request for a separate judgment.

Hadaegh continued to prosecute the remaining causes of action. On June 26, 2017 Khaligh filed a second amended cross-complaint, alleging causes of action for indemnity and equitable indemnity against Hadaegh based on his “involvement and activity, through his counsel, in the genesis of the title transfer” of the Arrowroot property. Hadaegh filed an unopposed special motion to strike (§ 425.16; anti-SLAPP statute). On August 31, 2007 the trial court granted Hadaegh’s motion and dismissed Khaligh’s cross-complaint. The trial court ruled Hadaegh was “entitled to an award of the reasonable attorney’s fees incurred in bringing the anti-SLAPP motion,” noting Hadaegh properly reserved his right to bring a future motion for fees and costs. Khaligh did not appeal the ruling.

On September 13, 2017 Hadaegh voluntarily dismissed his remaining causes of action without prejudice. On September 26, 2017 the trial court entered judgment in favor of Hadaegh on the first cause of action. Khaligh appealed, and we affirmed in Hadaegh I.

3. Hadaegh’s motion for attorneys’ fees
4.
On November 27, 2017 Hadaegh filed a motion for attorneys’ fees in the amount of $204,575 as a judgment creditor pursuant to section 685.040. Hadaegh provided billing records and a declaration from his attorney setting forth the fees sought at $350 and $450 per hour, depending on the attorney. In his reply brief, Hadaegh reduced his request for attorneys’ fees to $196,617.60, including a prior sanctions award.

Khaligh opposed the motion, arguing the 2004 judgment did not include an award of attorneys’ fees to support entitlement to fees under section 685.040 for enforcement of the judgment. Specifically, Khaligh argued the 2004 judgment had provided only for “costs and expenses” of an unspecified amount. Khaligh did not address the court’s October 20, 2004 order awarding Hadaegh $7,000 in attorneys’ fees and $200.10 in costs. Khaligh also contended Hadaegh’s motion included unnecessary fees incurred after Hadaegh secured judgment on the pleadings, was based on inappropriate block billing, and failed to segregate fees incurred litigating against the other defendants who were voluntarily dismissed from the action. Khaligh did not assert any arguments relating to her Chapter 7 proceeding.

In its April 13, 2018 minute order, the trial court found Hadaegh was “entitled to recover attorney’s fees for all work reasonably incurred by his counsel in connection with his claims against . . . Khaligh and Khaligh’s cross-claims against him in this litigation—even for work incurred after the court granted [Hadaegh’s] motion for judgment [on the] pleadings as to the first cause of action. The Court additionally finds that [Hadaegh’s] counsel’s claimed hourly billing rates are reasonable.” The court continued Hadaegh’s motion to May 17 and ordered “supplemental briefing and evidence regarding what portion of the claimed fees can reasonably be apportioned to litigation against Khaligh and which portion is not recoverable as having been incurred against other [d]efendants.”

On April 23, 2018 Khaligh filed a request for judicial notice of documents filed in her Chapter 7 proceeding, including the order granting summary judgment in the adversary proceeding adjudicating the nondischargeability of the 2004 judgment. Two days later Khaligh filed a motion for reconsideration of the court’s April 13 ruling. Khaligh argued the bankruptcy court “discharged and forever barred any claim for attorney’s fees, costs or expenses involved in or related to” the 2004 judgment.

Hadaegh opposed the motion for reconsideration, arguing the motion was procedurally improper and failed to present any new facts justifying reconsideration. Pursuant to the trial court’s April 13 order, Hadaegh filed supplemental briefing and an attorney declaration attaching billing reports segregating the fees incurred relating to the judgment against Khaligh from the fees incurred for actions against the other defendants.

On May 17, 2018, after hearing oral argument, the trial court denied Khaligh’s motion for reconsideration. The court found Khaligh did not present “new evidence or new law,” and Khaligh could have presented the bankruptcy ruling at the time she filed her opposition to Hadaegh’s motion for attorneys’ fees. The court adopted its tentative ruling, which stated “[t]he court’s April 13, 2018 order only granted the parties leave to submit supplemental briefing and evidence regarding which portion of [Hadaegh’s] claimed fees can reasonably be apportioned to litigation against Khaligh and which portion is not recoverable as having been incurred against other [d]efendants. . . . The court did not grant leave to file briefing on other issue[s] or to reargue the court’s findings.”

With respect to the amount of attorneys’ fees, the trial court requested Khaligh’s attorney identify specific time entries “that are not appropriate entries as to Dr. Khaligh.” Khaligh’s attorney responded all time entries for work performed after the court’s grant of judgment on the pleadings should be excluded because the billings were not necessary to the claim to enforce the judgment. The court rejected this argument, noting it had previously resolved this issue. After identifying and excluding some duplicative time entries, the court awarded Hadaegh $171,687.50 in attorneys’ fees. The court clarified these fees did not include fees incurred in litigation against the dismissed defendants.

Khaligh timely appealed from the May 17, 2018 order after judgment. Khaligh did not identify the trial court’s April 13, 2018 ruling in her notice of appeal.

DISCUSSION

A. Khaligh Properly Appealed from Both the April 13, 2018 Ruling and May 17, 2018 Order
B.
Hadaegh contends we lack jurisdiction to review the trial court’s April 13, 2018 ruling entitling Hadaegh to attorneys’ fees because Khaligh appealed only from the May 17, 2018 order. Khaligh responds she was entitled to wait until the amount of fees was specified before she appealed. Khaligh is correct.

“An individual who is aggrieved only by a judgment’s award of attorney fees in an unspecified amount may wait for the court to issue an order determining the amount of the award, and then appeal from that order. [Citation.] On that appeal, the individual can challenge not only the amount of the award but also the opposing party’s entitlement to any award at all.” (Moore v. Kaufman (2010) 189 Cal.App.4th 604, 608-609, fn. 2; accord, P R Burke Corp. v. Victor Valley Wastewater Reclamation Authority (2002) 98 Cal.App.4th 1047, 1053 [“[I]f a judgment determines that a party is entitled to attorney’s fees but does not determine the amount, that portion of the judgment is nonfinal and nonappealable.”].)

Filbin v. Fitzgerald (2012) 211 Cal.App.4th 154, relied on by Hadaegh, is inapposite. In that case the Court of Appeal concluded it lacked jurisdiction to review a judgment on the plaintiff’s complaint, where the appeal was taken from a judgment on the defendant’s cross-complaint. (Id. at pp. 172-173.)

C. Standard of Review
D.
“‘[A] determination of the legal basis for an attorney fee award is a question of law to be reviewed de novo.’” (Mountain Air Enterprises, LLC v. Sundowner Towers, LLC (2017) 3 Cal.5th 744, 751 (Mountain Air); accord, John Russo Industrial Sheetmetal, Inc. v. City of Los Angeles Dept. of Airports (2018) 29 Cal.App.5th 378, 385.) Similarly, “[w]e review questions of statutory construction de novo. Our primary task ‘in interpreting a statute is to determine the Legislature’s intent, giving effect to the law’s purpose. [Citation.] We consider first the words of a statute, as the most reliable indicator of legislative intent. [Citation.]’ [Citation.] We construe the statute’s words in context, harmonizing statutory provisions to avoid absurd results. [Citation.] If the statutory text is susceptible to more than one reasonable construction, we may consider extrinsic aids such as legislative history to facilitate our interpretative analysis.” (California Building Industry Assn. v. State Water Resources Control Bd. (2018) 4 Cal.5th 1032, 1041; accord, United Riggers & Erectors, Inc. v. Coast Iron & Steel Co. (2018) 4 Cal.5th 1082, 1089.)

We review the propriety or amount of attorneys’ fees awarded under the deferential abuse of discretion standard. (Mountain Air, supra, 3 Cal.5th at p. 751; PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095 (PLCM Group) [“the trial court has broad authority to determine the amount of a reasonable fee”]; Taylor v. Nabors Drilling USA, LP (2014) 222 Cal.App.4th 1228, 1249.) “‘“‘“[T]he appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason.”’”’” (Taylor, at p. 1249.)

As the Supreme Court explained in PLCM Group, “‘The “experienced trial judge is the best judge of the value of professional services rendered in his court, and while his judgment is of course subject to review, it will not be disturbed unless the appellate court is convinced that it is clearly wrong”’—meaning that it abused its discretion.” (PLCM Group, supra, 22 Cal.4th at p. 1095.)

E. Hadaegh Is Entitled to Attorneys’ Fees Under Section 685.040
F.
Section 685.040 entitles a judgment creditor to attorneys’ fees incurred for successfully enforcing a judgment if the underlying judgment includes an award of attorneys’ fees pursuant to a contract. (Highland Springs Conference & Training Center v. City of Banning (2019) 42 Cal.App.5th 416, 423; accord, Jaffe v. Pacelli (2008) 165 Cal.App.4th 927, 935 [“if the underlying judgment included an award of contractually based attorney fees, the party seeking to enforce the judgment may obtain posttrial attorney fees incurred to enforce the judgment”]; Imperial Bank v. Pim Electric, Inc. (1995) 33 Cal.App.4th 540, 558 [“The absence of any fee award in the underlying judgment precludes the recovery of fees as costs in the trial court for enforcing the money judgment . . . .”].)

In October 2004 the trial court awarded Hadaegh $7,000 in attorneys’ fees. Khaligh does not dispute these fees were awarded on the 2004 judgment pursuant to the settlement agreement’s fee provision. Instead, Khaligh contends the bankruptcy court’s discharge of those fees in her Chapter 7 proceeding “subsumed” the 2004 judgment, leaving a judgment bereft of any attorneys’ fees award.

Khaligh provides no authority for the proposition a Chapter 7 discharge of a fee award made on an otherwise nondischargeable judgment modifies the judgment so that it no longer “includes” a fee award under section 685.040. As Hadaegh argues, a bankruptcy discharge does not erase a debt, only enforcement of the debt. (Johnson v. Home State Bank (1991) 501 U.S. 78, 84 [“a bankruptcy discharge extinguishes only one mode of enforcing a claim—namely, an action against the debtor in personam”]; In re American Hardwoods, Inc. (9th Cir. 1989) 885 F.2d 621, 626 [discharge “does not void ab initio a liability,” but rather “constructs a legal bar to its recovery”]; In re Bruno (Bankr. W.D.N.Y. 2006) 356 B.R. 89, 92 [“decades of jurisprudence on the subject of bankruptcy discharge places it beyond cavil that discharge does not extinguish the debt, but only the remedy”].)

In reply, Khaligh seeks to distinguish the cases cited by Hadaegh as applying in contexts different from the circumstances here. They do. Indeed, we are not aware of any authority directly on point, but Hadaegh has the better argument. However, we need not resolve whether the discharge of the attorneys’ fees award effectively modified the judgment for purposes of section 685.040 such that the judgment no longer includes an award of attorneys’ fees. Khaligh forfeited this argument by failing timely to raise it in the trial court. (In re Sheena K. (2007) 40 Cal.4th 875, 880-881 [“‘“[N]o procedural principle is more familiar to this Court than that a constitutional right,” or a right of any other sort, “may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.”’”]; Pittman v. Beck Park Apartments Ltd. (2018) 20 Cal.App.5th 1009, 1026 [same].)

Khaligh responds she timely raised the issue of the bankruptcy discharge by arguing in her opposition to Hadaegh’s motion for attorneys’ fees that the arbitration award did not include a fee award. But her opposition did not reference the bankruptcy court’s discharge, and only after the trial court ruled on April 13, 2018 that Hadaegh was entitled to recover his attorneys’ fees did Khaligh request (on April 23) the court take judicial notice of documents filed in the Chapter 7 proceedings. Khaligh filed her motion for reconsideration two days later.

Khaligh also contends her discharge argument cannot be forfeited as a matter of federal law. It is true “the defense of discharge in bankruptcy is . . . an absolute, nonwaivable defense.” (In re Gurrola (Bankr. 9th Cir. 2005) 328 B.R. 158, 170; see 11 U.S.C. § 524(a)(1) & (2) [effects of discharge operate “whether or not discharge of such debt is waived”].) But Hadaegh does not contest that the fee award on the 2004 judgment has been discharged. It is a separate question whether a discharged fee award may satisfy the requirement in section 685.040 that a judgment include a fee award to support an award of fees in a subsequent action to enforce a nondischarged judgment.

To the extent Khaligh argues the instant fee award was discharged as a result of the discharge of the fees awarded on the 2004 judgment, we agree the argument cannot be forfeited, but it lacks merit. Although a creditor’s claim for attorneys’ fees may be discharged in bankruptcy “even if some fees are incurred post-petition,” the fees are discharged only when the expenditure of postpetition fees is within “the fair contemplation of the parties prepetition.” (In re Castellino Villas, A.K.F. LLC (9th Cir. 2016) 836 F.3d 1028, 1035-1036, 1034 [“[U]nder some circumstances, a creditor may have a claim against a debtor for attorneys’ fees, even though the creditor has not yet incurred those fees.”].) Under the “fair contemplation” test, “‘a claim arises when a claimant can fairly or reasonably contemplate the claim’s existence even if a cause of action has not yet accrued under nonbankruptcy law.’” (Id. at p. 1034 [fees awarded postpetition appropriately discharged where litigation began prepetition and fees were fairly and reasonably in the contemplation of the parties at the time petition was filed].) Khaligh has not shown the statutory attorneys’ fees awarded on Hadaegh’s successful enforcement of his nondischargeable judgment over 10 years after the issuance of the judgment and the close of the bankruptcy proceeding were within the fair and reasonable contemplation of the parties at the time the bankruptcy petition was filed.

G. The Trial Court Abused Its Discretion in Awarding Fees for Work Performed on the Causes of Action Hadaegh Voluntarily Dismissed
H.
Khaligh contends the trial court abused its discretion by failing to reduce the fee award to account for the work Hadaegh’s attorney performed on the claims he voluntarily dismissed after the court granted Hadaegh’s motion for judgment on the pleadings on his cause of action on the 2004 judgment. Hadaegh responds that each of the dismissed claims related to enforcement of the 2004 judgment, on which he was successful, so he was entitled to recover his attorneys’ fees for the litigation of all his claims. Khaligh has the better argument.

Under section 685.040, a court may only award fees that constitute “the reasonable and necessary costs of enforcing a judgment.” Although each of Hadaegh’s claims related to enforcement of the judgment in that the dismissed causes of action sought to “maintain assets in defendant’s hands for potential satisfaction of the judgment” (Conservatorship of McQueen (2014) 59 Cal.4th 602, 613), under the facts of this case the dismissed causes of action were not necessary to Hadaegh’s successful enforcement of the judgment. Hadaegh’s only success in this action was on his first cause of action on the 2004 judgment. Had Hadaegh prevailed on his remaining causes of action, this would have afforded him additional remedies to ensure payment on the judgment, including setting aside transfer of the Arrowroot property, imposition of a lien on the property, or creation of a constructive trust to hold the property. But by dismissing the claims, Hadaegh did not obtain any relief beyond his right to a judgment following the court’s grant of his motion for judgment on the pleadings.

The authorities relied on by Hadaegh are distinguishable. They involve interpretation of section 1021.5, which provides for the recovery of attorneys’ fees in cases where a party through its litigation conferred a significant benefit on the general public or a large class of persons. (See Sundance v. Municipal Court (1987) 192 Cal.App.3d 268, 271, 273-274 [attorneys’ fees award under § 1021.5 may appropriately include fees for time reasonably spent on fully litigated but ultimately unsuccessful equal protection and waste of public funds claims where plaintiffs succeeded in “significantly changing the procedures for the incarceration and treatment of public inebriates” on other grounds]; Environmental Protection Information Center v. Department of Forestry & Fire Protection (2010) 190 Cal.App.4th 217, 247 [plaintiff may appropriately recover attorneys’ fees under § 1021.5 for all time reasonably spent challenging administrative proceedings where successful and unsuccessful claims were related and “did not seek to remedy a course of conduct entirely distinct and separate from the course of conduct underlying its successful claims”]). These cases do not address section 685.040’s mandate that the costs awarded be “necessary” to the successful enforcement of the judgment. Moreover, neither case involved a plaintiff who obtained complete relief (here enforcing the judgment), but continued to litigate his or her remaining causes of action only later to voluntarily dismiss those causes of action without achieving any further relief.

Under these circumstances, the trial court abused its discretion by awarding fees incurred by Hadaegh after the trial court granted judgment on the pleadings as to his cause of action for enforcement of the judgment. (See Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 773 [“‘Action that transgresses the confines of the applicable principles of law is outside the scope of discretion and we call such action an “abuse” of discretion.’”]; County of Sonoma v. Gustely (2019) 36 Cal.App.5th 704, 713-714 [same].)

I. Khaligh Has Not Met Her Burden To Show the Trial Court Abused Its Discretion by Awarding Attorneys’ Fees Based on Billing Records with Block Billing and Duplicative Entries
J.
Khaligh contends the trial court abused its discretion in awarding fees for time that was block billed and duplicative, identifying 15 time entries she asserts were improper. The fact some of the entries are for multiple tasks (block billing) is not alone a sufficient basis to deny the request. (Jaramillo v. County of Orange (2011) 200 Cal.App.4th 811, 830 [“[B]lock billing is not objectionable ‘per se,’ though it certainly does increase the risk that the trial court, in a reasonable exercise of its discretion, will discount a fee request.”]; Christian Research Institute v. Alnor (2008) 165 Cal.App.4th 1315, 1325 [“Block billing, while not objectionable per se in our view, exacerbated the vagueness of counsel’s fee request . . . .”].) Further, Khaligh fails to provide any legal argument explaining why the specific entries were duplicative or excessive, thus forfeiting this argument. (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 363 [“If a party’s briefs do not provide legal argument and citation to authority on each point raised, ‘“the court may treat it as waived, and pass it without consideration.”’”]; In re Marriage of Davila & Mejia (2018) 29 Cal.App.5th 220, 227 [“‘Issues not supported by citation to legal authority are subject to forfeiture.’”].) Khaligh has likewise forfeited her argument the trial court abused its discretion in awarding fees based on Hadaegh’s successful anti-SLAPP motion by failing to present any legal argument to support her position.

DISPOSITION

The order is reversed. On remand, the trial court is directed to determine the reasonable and necessary attorneys’ fees incurred by Hadaegh against Khaligh prior to the trial court’s grant of judgment on the pleadings on Hadaegh’s cause of action on the judgment. The parties are to bear their own costs on appeal.

FEUER, J.

We concur:

ZELON, Acting P. J. SEGAL, J.