Case Name: Tom Lopes Distributing Co., Inc. v Alvarado
Case Number 5-12-CV-006813

Plaintiff filed a Motion for Order Amending Judgment and Amending Court’s Assignment Order and for Post-Judgment Attorney’s Fees and Costs Or, Alternatively, Sanctions in the Amount of $1,500. The Motion is UNOPPOSED. However, the Court only partially grants the Motion as explained below.

The Court grants Plaintiff’s Motion to Amend the Judgment entered 8/2/12 to state “Gustavo Magana Alvarado” instead of “Gustavo Alvarado.” The Court also grants Plaintiff’s Motion to Amend the Assignment Order entered 10-3-12 to state “Gustavo Magana Alvarado” instead of Gustavo Alvarado

The Court is concerned about plaintiff’s multiple applications for Post-Judgment Fees or, Alternatively, Sanctions in the Amount of $1,500 the Court has seen in this and other cases involving the same plaintiff. .

Plaintiff, Judgment Creditor (“Creditor”), is essentially asking for monetary relief in the guise of a contempt proceeding for Judgment Debtor’s failure to comply with the Court’s Assignment/Turnover Order. Although any party to an action who willfully disobeys a court order may be punished for contempt, due process requirements must be strictly followed as set forth in CCP Sections 1211-1218. Lyon v Superior Court (1968) 68 Cal 2d 446, 552. Plaintiff has not followed these requirements. Arthur v Superior Court (1965) 62 Cal 2d 404, 407-408.

Moreover, Creditor’s request for imposition of sanctions should be considered as a last resort rather than as a routinely available device to ensure enforcement of judgments. Creditor has a number of mechanisms at its disposal that can be used to facilitate enforcement of the judgment. However, the case history shows Creditor has not been diligent utilizing any of the available mechanisms over the last few years since entry of the judgment.

Creditor obtained a default judgment on August 2, 2012 for $8,656.46. Notice of Entry of Default Judgment was filed on August 9, 2012. Creditor filed an Application for Order of Exam on September 5th, 2012, the hearing of which was scheduled for November 26, 2012. The minutes of that hearing indicate there was no appearance and the matter was taken off calendar.

On September 28, 2012, Creditor filed its first Motion for Assignment Order and Turn Over Order and for Post Judgment Attorney’s Fees. On October 3, 2012, the Court granted an Ex Parte Order for the requested relief pending the hearing on October 29, 2012. On October 29, 2012, the Court granted the relief requested and awarded $1,500 in attorney’s fees.

On January 25, 2013, Creditor filed its second Motion for Award of Post-Judgment Fees and Compelling Debtors Obedience the hearing of which was scheduled for March 3, 2013. In his declaration in support of the Motion, counsel for creditor declared he appeared at the courthouse on November26-2012 and examined debtor under oath. This is in contrast with the court file minutes of that day which indicate no party appeared and the matter was taken off calendar. Counsel also declared he negotiated for monthly payments with debtor on 11-26-12. Apparently, this settlement was never put on the record. Counsel then states debtor never signed the stipulation to make monthly payments he sent to him after the hearing. Counsel includes the unsigned “proposed stipulation” with his declaration but not the cover letter he used to send it to debtor. On March 8, 2013, the Court signed an order granting post-judgment fees of $1,250 and for abstract of judgment costs, and recordation fees and costs associated with filing the motion and ex parte application.

On November 14, 2013, counsel for creditor applied for another Order of Examination, the hearing of which was scheduled for January 6, 2014. The minutes for January 6, 2014 indicate there was no proof of service and the matter was taken off calendar with no appearances being made.

On March 25, 2014, counsel for creditor applied for another Order of Examination, the hearing of which was scheduled for June 9, 2014. Again, there was no proof of service and the minutes reflect that there were no appearances and the matter was taken off calendar on June 9, 2014.

On November 26, 2014, creditor filed a Memorandum of Costs after Judgment and Accrued Interest in the approximate amount of $3,500

On January 23, 2015, creditor filed the instant motion for yet more post Judgment Attorneys Fees, or alternatively, monetary sanctions in the amount of $1,500. He also asks to amend the judgment and assignment order to state Gustavo Alvarado’s complete name.

Creditor has taken multiple Orders of Exam off calendar and failed to serve Judgment Debtor on most of those occasions.

Other mechanisms of enforcement have also been underutilized. There has only been one assignment order and several abstracts of judgment have been filed. It is not clear why Creditor has been unable so far to take concrete steps in enforcing the judgment, for example, by attaching Debtor’s trucks or other property such as bank accounts, both off which are listed on the credit application.

Regarding the request for award of post-judgment attorney’s fees, CCP 685.040 allows such relief as a cost incurred in the enforcement of the judgment. But for such relief to be available, it must either be allowed by law, or the underlying judgment must have included an award for attorney’s fees pursuant to CCP 1033.5(a)(10). Here the judgment included an award of attorney’s fees, and qualifies to CCP 685.040 relief on that ground.

However, to be recoverable, the cost/attorney’s fee must be “reasonable and necessary.” (CCP 685.040.) As discussed above, most of Creditors’ activities in enforcing the judgment have been ineffectual and unnecessarily repetitive.

The Court denies creditor’s request for post-judgment fees and costs, or alternatively, sanctions.