Case Name: Tom Lopes Distributing Co., Inc. v Vasquez
Case Number: 507CV-002051

Plaintiff filed a Motion for Order: 1) Compelling Debtor’s Obedience To Prior Order; 2) Prohibiting Transfers and 3) For Post-Judgment Attorney’s Fees Or, Alternatively, Sanctions in the Amount of $1,500. The Motion is UNOPPOSED. However, the Court denies the Motion as explained below.

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 December 5, 2014 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. Plaintiff has a number of mechanisms at its disposal that can be used to facilitate enforcement of the judgment. The case history shows Creditor has not been diligent utilizing any of the available mechanisms over the last seven years since entry of the judgment.

For example, there have been eleven order for examination applications filed by Creditor over the years. All but one were properly served on the defendant Judgment Debtor, and were all vacated without any tangible result having been achieved. Even in the one instance where Debtor was properly served, Creditor failed to appear at the hearing (21 April 2008), while Debtor showed up for the examination. As a result, the Court has to take the matter off calendar and impose a $200 sanction against Creditor. In most of the other instances, Creditor requested the hearings to be taken off calendar long before arrival of the scheduled dates for the examinations. There has not been any declaration of diligence filed showing efforts made to complete service on Debtor.

Other mechanisms of enforcement have also been underutilized. There has only been one writ and two blanket assignment/turnover orders issued in this case. Creditor alleges that Debtor is still conducting interstate trucking business based in California, and 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.

Creditor has been diligent in boosting the judgment amount by filing about six memoranda of costs. The initial judgment amount was $22,142.85 (June 25 2007), and by the time the judgment was renewed on February 14, 2013, the debt amount mounted to $38,278.50.

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.

Furthermore, the request for post-judgment attorney’s fees must be sought no later than two years after incurring the fees. (CCP 685.070, 685.080.) Here Creditor is seeking to recover fees incurred for services rendered from as far back as 2010 to the present. The declaration counsel submitted is vague and unspecific as to when services were rendered. (See, paragraph 19 of counsel’s declaration).

The Motion is DENIED.