Filed 6/30/20 Padilla v. Jakubaitis CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

CARLOS PADILLA III,

Plaintiff and Respondent,

v.

FRANK JAKUBAITIS,

Defendant and Appellant.

G057424

(Super. Ct. No. 30-2012-00553004)

O P I N I O N

Appeal from a postjudgment order of the Superior Court of Orange County, Theodore R. Howard, Judge. Affirmed. Request for Judicial Notice. Granted.

Frank Jakubaitis, in pro. per., for Defendant and Appellant.

Pacific Premier Law Group and Arash Shirdel for Plaintiff and Respondent.

* * *

INTRODUCTION

This action originated in 2012 and is premised on allegations of $189,000 in unpaid loans. In November 2016, the trial court granted defendant Frank Jakubaitis’s special motion to strike under California’s anti-SLAPP statute, Code of Civil Procedure section 425.16, which struck the 32nd cause of action for defamation in plaintiff Carlos Padilla’s 2012 amended complaint. (All further statutory references are to the Code of Civil Procedure unless otherwise specified.) The trial court thereafter granted Jakubaitis’s motion for attorney fees and costs for prevailing on the anti-SLAPP motion and awarded Jakubaitis $14,000 in attorney fees and $277.84 in costs. In one of our prior opinions in this case, Padilla v. Jakubaitis (Nov. 14, 2018, G054398) [nonpub. opn.], we affirmed the order granting the anti-SLAPP motion.

Jakubaitis now appeals from the trial court’s order awarding him only $735 of the $6,673.86 in postjudgment enforcement attorney fees and costs he contends he incurred in his efforts to collect on the anti-SLAPP attorney fees and costs award.

We affirm. The trial court did not abuse its discretion by refusing to award the additional fees and costs that Jakubaitis requested on the grounds they were neither reasonable nor necessary within the meaning of section 685.040.

BACKGROUND

In our prior opinions Padilla v. Jakubaitis (Nov. 9, 2015, G051094) [nonpub. opn.] and Padilla v. Jakubaitis, supra, G054398, we recited background facts and the procedural history of this case since its inception, which we do not restate here.

In November 2016, the trial court granted Jakubaitis’s anti-SLAPP motion to strike the 32nd cause of action for defamation contained in Padilla’s amended complaint. In December 2016, Padilla appealed from the order granting the anti-SLAPP motion. On February 6, 2017, the trial court granted Jakubaitis’s motion for prevailing party attorney fees as to the anti-SLAPP motion and awarded him $14,000 in attorney fees and $277.84 in costs under section 425.16, subdivision (c)(1). Padilla did not file a separate notice of appeal from the order awarding attorney fees and costs.

On February 14, 2017, Jakubaitis’s counsel executed an abstract of judgment form. On February 24, the clerk of the superior court issued an abstract of judgment in the total amount of $14,277.84 which was recorded on February 27, 2017.

In March 2017, Padilla filed an ex parte application to expunge the abstract of judgment recorded by Jakubaitis on the ground that “any enforcement of the order of attorneys’ fees is stayed pending appeal as a result of the bond posted by . . . Padilla” pursuant to section 917.1, subdivision (a). Padilla filed a declaration in support of his application stating that, on February 21, 2017, he posted cash with the superior court to stay any collection proceedings pending appeal and attached a copy of his receipt as an exhibit. The superior court’s receipt shows an “[i]nterpleader deposit” had been made in the amount of $22,000. Padilla’s counsel subsequently filed a declaration stating that the clerk of the superior court confirmed that “the deposit was properly made as an undertaking for purposes of an appeal.”

Jakubaitis filed an opposition to Padilla’s ex parte application on the grounds Padilla failed to comply with the statute governing deposit in lieu of bond requirements, and the order awarding Jakubaitis anti-SLAPP attorney fees and costs had not been appealed.

The court’s minute order dated March 9, 2017 stated: “After discussion, counsels have agreed that counsel for [Jakubaitis] will prepare a stipulation regarding the issue and submit the stipulation to counsel for [Padilla] to review. If both sides agree with the stipulation, it will be submitted to the court no later than 3/10/17, by the close of business. [¶] If there is no agreement, counsels have been instructed by this court to return on 3/13/2017 for further assistance.”

On March 13, 2017, the parties entered an agreement whereby they agreed the $22,000 deposit secured the anti-SLAPP attorney fees and costs award and that the abstract of judgment should be expunged. That same date, the trial court ordered the abstract of judgment expunged.

On April 24, 2017, Jakubaitis filed two motions. First, he filed a motion for the court to order Padilla’s deposit immediately released to Jakubaitis on the ground Padilla had not perfected an appeal from the order awarding anti-SLAPP attorney fees and costs.

Second, Jakubaitis filed a motion for an award of postjudgment attorney fees and costs under section 685.080, subdivision (a) on the ground he had incurred postjudgment attorney fees in seeking to enforce the anti-SLAPP attorney fees order. He sought an award of $5,063.86 in postjudgment enforcement attorney fees and “$1,225.00 to $1,750.00” in costs. The motion was supported by Jakubaitis’s counsel’s declaration that attorney fees were incurred in March 2017 for counsel’s work described as (1) opposing and negotiating Padilla’s ex parte application (about 10 hours at $350 an hour); (2) “[d]eal[ing] with escrow regarding lien release and advis[ing] client on several exchanges” (one hour); and (3) researching and preparing the instant motion for postjudgment attorney fees and a motion for release of the deposit (three hours). Counsel’s declaration stated he anticipated spending an additional two and a half to three hours reviewing and formatting reply briefs to oppositions and another one to two hours attending hearings. He also asserted that $163.86 in costs had been incurred in April and May 2017 for filing and service fees.

The trial court denied both of Jakubaitis’s motions without prejudice. In its minute order dated May 18, 2017, the court noted that on February 21, 2017, Padilla deposited $22,000 with the clerk of the superior court that “represented the 1.5x tender required by statute to stay enforcement of a money judgment.” The court further noted that Padilla’s notice of appeal challenging the order granting the anti SLAPP motion itself necessarily included the order awarding mandatory attorney fees, but by failing to separately appeal from the order awarding those attorney fees, Padilla forfeited any challenge to the amount of attorney fees awarded. The court’s minute order, citing Quiles v. Parent (2017) 10 Cal.App.5th 130, 141, added that a bond or undertaking was not required to stay enforcement of the judgment pending the disposition of a SLAPP plaintiff’s appeal.

The minute order set forth the court’s ruling: “[D]efendant is not presently entitled to any of the $22,000.00 on deposit by plaintiff because (1) perfecting an appeal of the SLAPP merits includes defendants’ right to recover anything, (2) the appeal stays enforcement without an undertaking, and (3) even if an undertaking is required, it has been posted. It is up to the Court of Appeal as to whether plaintiff has further perfected the right to challenge the amount of fees awarded. Even if defendant were entitled to something now, that would most likely be property of the bankruptcy estate since the defamatory statements were made in late 2011, and the cause of action associated therewith filed in 2012—well before [Jakubaitis]’s bankruptcy action in 2013. Although [Jakubaitis] has not yet monetized that cause of action, he did list the entire lawsuit as an asset in his schedules. The fact that [Jakubaitis] waited so long to bring his anti-SLAPP motion does not convert the award into his own private asset. Thus, the award belongs to the bankruptcy estate either way. [¶] Motions DENIED, without prejudice.”

On November 17, 2017, this court affirmed the order striking the defamation claim in Padilla v. Jakubaitis, supra, G054398. The remittitur issued on January 16, 2019.

On January 28, 2019, Jakubaitis filed a new motion for an order releasing funds on deposit and a new motion for an award of postjudgment attorney fees and appeal related fees in the amount of $6,673.86 under sections 425.16 and 685.040. In the latter motion, Jakubaitis sought to recover the attorney fees and costs he previously sought in his original motion to recover postjudgment attorney fees and costs, resubmitting his then counsel’s declaration that had been filed in support of that original motion. Also in support of the new motion for postjudgment attorney fees and costs, Jakubaitis’s now former counsel filed another declaration stating that before he withdrew as counsel of record, he had performed some preliminary work for Jakubaitis on the appeal of the anti SLAPP order for which Jakubaitis incurred $735 in attorney fees. Former counsel stated he also spent 2.5 hours in “additional enforcement efforts” on Jakubaitis’s behalf, described as: (1) “Review of issues related to Interpleader” on February 14, 2017 (one-half hour); (2) “Review and redraft reply to opposition to the Motion to disburse fees” on May 11, 2017 (one hour); and (3) “Review tentative and preparation for hearing” on May 17, 2017 (one hour).

Following the hearing on Jakubaitis’s motions, the trial court issued a minute order stating Jakubaitis sought a total of $5,938.86 in efforts to enforce on the anti-SLAPP attorney fees award and $735 in appellate-related attorney fees. The court ruled that the declaration of Jakubaitis’s former counsel was “more than sufficient” to support awarding him $735 in incurred attorney fees related to the appeal, but that “[t]he $5,938.86 in ‘enforcement’ efforts is another issue altogether.”

The court in its minute order observed that under section 685.040, a judgment creditor is entitled to “reasonable and necessary costs of enforcing a judgment” which can include attorney fees. The court stated Jakubaitis’s enforcement costs request had a number of problems. First, while the motion was timely filed, sufficient evidence showed the motion was never served on Padilla. The court noted in the minute order, “Although [Padilla] found the motion searching the court registry, that does not excuse the strict statutory requirement of properly making the motion within two years of when the fees were incurred.” (See Arambula v. Union Carbide Corp. (2005) 128 Cal.App.4th 333, 341 [motion “made” when filed and served].)

Second, the court stated, “only costs which were reasonably necessary to the issue of enforcement” of the anti-SLAPP attorney fees and costs award would be recoverable. The trial court explained: “As soon as this Court granted [Jakubaitis]’s anti-SLAPP motion, [Jakubaitis] was free to start ‘enforcing’ the judgment and collecting fees associated therewith. [Citation.] However, [Padilla] posted an undertaking for 1.5x the amount of the award a mere two weeks later. [Jakubaitis] does not claim to have incurred any attorney fees in the period between this Court’s award of anti-SLAPP fees and plaintiff’s posting of the undertaking. Instead, all of the fees related to post-posting efforts to resist expunging the abstract of judgment and various ex parte [matters]. [Padilla] prevailed in each of these efforts, and while success is not the litmus [test] for recovery of fees, it must be considered in light of the circumstances. There was no reason for [Jakubaitis] to press the issue of collection after the undertaking was posted and while the appeal process was underway. Questions as to the reach of the appeal were properly left for the appellate court.”

Finally, the trial court found that much of Jakubaitis’s counsel’s efforts were not actually efforts to enforce the attorney fees award, noting that Padilla “fully cooperated by posting the undertaking, even though this Court found that no undertaking was in fact required.”

The trial court granted Jakubaitis $735 in attorney fees incurred in connection with the appeal but denied the motion for postjudgment attorney fees and costs in all other respects. The court also released the amount of the anti-SLAPP attorney fees award, plus the $735 fee award, for a total of $15,012.84 from the amount Padilla posted. The court stated that award plus accrued interest “shall be released to defendant Frank Jakubaitis and presumptively turned over to the bankruptcy court as part of the prior estate. The balance remaining is to be released back to [Padilla].”

Jakubaitis appealed.

REQUEST FOR JUDICIAL NOTICE

Jakubaitis filed a request for this court to take judicial notice of (1) the United States Bankruptcy Court’s order denying the trustee’s motion requiring turnover of property of the estate; and (2) this court’s prior opinion in Padilla v. Jakubaitis, supra, G054398, and the docket and the remittitur in that matter. Padilla has not opposed the request. We grant the request for judicial notice. (Evid. Code, §§ 452, subd. (d), 459, subds. (a)-(c).)

DISCUSSION

“Title 9 of part 2 of the Code of Civil Procedure (§§ 680.010-724.260) is known as the Enforcement of Judgments Law.” (Conservatorship of McQueen (2014) 59 Cal.4th 602, 607.) Section 685.040 provides: “The judgment creditor is entitled to the reasonable and necessary costs of enforcing a judgment. . . . Attorney’s fees incurred in enforcing a judgment are included as costs collectible under this title if the underlying judgment includes an award of attorney’s fees to the judgment creditor pursuant to subparagraph (A) of paragraph (10) of subdivision (a) of Section 1033.5.”

“On review of an award of attorney fees after trial, the normal standard of review is abuse of discretion. However, de novo review of such a trial court order is warranted where the determination of whether the criteria for an award of attorney fees and costs in this context have been satisfied amounts to statutory construction and a question of law.” (Carver v. Chevron U.S.A., Inc. (2002) 97 Cal.App.4th 132, 142.)

Jakubaitis challenges the trial court’s denial of an award of $5,938.86 as postjudgment attorney fees and other costs that he argues were incurred to enforce the anti-SLAPP attorney fees award. We do not need to decide whether the filing of a notice of appeal from an order granting an anti-SLAPP motion effects an automatic stay of enforcement of a subsequent mandatory attorney fees award. Here, there is no dispute that on February 21, 2017, Padilla posted bond in the amount of $22,000 (1.5 times the amount of that award) staying enforcement of that award. With the exception of one entry on February 14, 2017 for one-half hour for “Review of issues related to Interpleader,” Jakubaitis’s claimed attorney fees and costs were incurred no earlier than March 7, 2017 and no later May 17, 2017, according to the declarations of Jakubaitis’s former counsel. Although Jakubaitis argues Padilla failed to properly serve notice of the posting of the bond and to otherwise comply with certain procedures relevant to it, Padilla provided a declaration confirming the bond had been posted correctly and the trial court confirmed the bond securing the attorney fees and costs award pending resolution of the appeal was posted.

Jakubaitis’s counsel’s declaration filed on March 7, 2017 shows that no later than that date, counsel was aware of Padilla’s efforts to post the bond. Notwithstanding being on notice that Padilla had deposited money with the superior court that more than amply secured the anti-SLAPP attorney fees award, Jakubaitis vigorously opposed Padilla’s ex parte application to have the abstract of judgment expunged and challenged the bond itself.

Although attorney fees and costs incurred to litigate the adequacy of an undertaking may be recoverable as postjudgment enforcement costs (see Wanland v. Law Offices of Mastagni, Holstedt & Chiurazzi (2006) 141 Cal.App.4th 15, 23), the trial court here did not abuse its discretion by concluding that under the circumstances, Jakubaitis’s requested attorney fees and costs were not reasonably necessary to enforce the anti SLAPP attorney fees and costs order. As there is no dispute by the first week of March one and one-half times the amount of the anti-SLAPP attorney fees and costs award had been deposited with the superior court, at that point, there was nothing to enforce until the resolution of Padilla’s appeal.

As for the attorney fees incurred for the one-half hour Jakubaitis’s former counsel spent before the bond was posted, former counsel’s declaration stated that those fees were incurred for his time reviewing issues related to interpleader. We cannot say that the trial court abused its discretion by concluding those fees, incurred to research interpleader within a week of the order awarding anti-SLAPP attorney fees and costs, without more, were not reasonably and necessarily incurred.

Because we conclude the trial court did not abuse its discretion by concluding Jakubaitis’s disputed attorney fees and costs were not reasonable or necessary, we do not need to address the other grounds the trial court cited in its minute order as supporting the denial of the attorney fees and costs challenged by Jakubaitis in this appeal.

DISPOSITION

The postjudgment order is affirmed. Respondent shall recover costs on appeal.

FYBEL, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

MOORE, J.