Opinion
H030311
4-30-2007
LOWELL ANDERSON, Plaintiff and Appellant, v. VICTORIA KELLOGG, Defendant and Respondent.
NOT TO BE PUBLISHED
Lowell Anderson (appellant) appeals from an order augmenting a judgment with the addition of attorneys fees and costs incurred in enforcing the judgment. He argues that he paid the full amount of the judgment to the levying officer under a writ of execution prior to the courts order augmenting the judgment. Thus the judgment was fully satisfied and could not be subsequently augmented. We agree and we therefore reverse the order.
BACKGROUND
This case began in 1996 as an action by appellant to collect a real estate commission. The matter went to arbitration and the arbitrator found in favor of respondent Victoria Kellogg and awarded her $22,566.92 in attorneys fees. The arbitration award was confirmed in superior court and judgment was entered on July 5, 2000. Appellant appealed, and this court affirmed the judgment in a written opinion filed on June 13, 2001. (Anderson v. Morrill (June 13, 2001, H021955) [nonpub. opn.].)
A separate judgment in favor of Gloria Morrill was also affirmed. She was not a party to subsequent appeals, and is not a party to this appeal.
Following issuance of the remittitur, respondent filed a motion in the trial court for attorneys fees on appeal as an item of costs. The court granted the motion and issued an order adding the amount of $12,927 to the judgment. This order was filed November 5, 2001. Appellant filed an appeal from this order (H026683), but his appeal was dismissed by this court on December 3, 2003, for failure to file the record within time limits. (Cal. Rules of Court, former rule 8(b), now rule 8.140.)
The record before us, and in prior appeals before this court, chronicles the history of respondents attempts to collect on the judgment. At each stage, additional attorneys fees, costs and interest were added to the judgment. By August of 2004, the amount due had reached a total of $60,569.05, consisting of the original judgment of $22,566.92, the costs and attorneys fees on appeal of $12,927, costs and attorneys fees in connection with attempts to enforce the judgment of $ 10,045.70, interest in the amount of $14,993.13, and a filing fee of $36.30. On August 27, 2004, respondent filed an amended costs memo and application for renewal of judgment in the amount of $60,569.05. Appellant filed objections to the renewal of the judgment and moved to tax costs. The court heard argument and issued a written order on November 19, 2004, rejecting appellants objections and denying his motion to tax costs. He filed an appeal from this order on January 14, 2005, and we affirmed it in a written opinion filed October 4, 2005. (Anderson v. Kellogg (Oct. 4, 2005, H028368) [nonpub. opn.].)
On May 5, 2005, respondent filed a new memorandum of costs, which included the prior amount of the renewed judgment, $ 60,569.05, plus further enforcement costs of $17,300 and post judgment interest of $3,865.47, totaling $81,734.52. Appellant filed a motion to tax costs, which was denied by the court in an order filed June 22, 2005. A fourth appeal (H029227) filed by appellant on August 19, 2005, was dismissed by this court on September 9, 2005, for failure to pay the statutory filing fee. (Cal. Rules of Court, former rule 1(c), now rule 8.100.)
As the judgment creditor, respondent applied for a writ of execution to collect the amount of the renewed judgment, plus costs of execution and interest. A writ of execution issued on July 7, 2005, and on July 26, 2005, the Santa Cruz County Sheriff recorded a "Notice of Levy under Writ of Execution" on property owned by appellant in Santa Cruz County. The total amount sought by respondent on the writ of execution was $82,848.31, which included the amounts set forth in respondents memorandum of costs, plus an additional $1,106.79 in interest and a filing fee of $7.00. On September 19, 2005, respondent filed an "Application For Order For Sale Of Dwelling" in Santa Cruz County Superior Court, to start the process of collecting this amount. After a hearing on the application, an order for sale was granted in favor of respondent on November 17, 2005.
The property levied upon was a residence. Under Code of Civil Procedure section 704.740, the sale of a dwelling to enforce a money judgment must proceed pursuant to a court order for sale.
On November 22, 2005, respondent filed a new memorandum of costs after judgment, claiming an additional $ 40,954.50 in post-judgment attorneys fees and costs incurred in collection efforts and two appeals. On December 6, 2005, appellant filed a motion to tax costs and strike the fees. Respondent sought an expedited hearing on the motion to tax, in order that the additional amounts could be included in the pending writ of execution prior to the sale of the property. The motion to tax costs and strike fees was set for an expedited hearing on December 15, 2005. Appellant argued that attorneys fees must be sought by a noticed motion rather than as part of costs in a memorandum of costs. (Code Civ. Proc., § 685.080.) The court agreed, and on December 16, 2005, the court granted appellants motion to strike attorneys fees. Although finding that respondent had not complied with the requirements of Code of Civil Procedure section 685.080, which requires a noticed motion to recover attorneys fees and costs, the court noted that appellant "acknowledges that [respondent] is entitled to attorneys fees, but did not follow the appropriate procedure."
On January 13, 2006, respondent filed a noticed motion for additional attorneys fees and costs of enforcement of judgment. Respondent sought an additional $70,152.63 in costs and fees incurred as follows: $14,123.75 in fees incurred in defending two appeals (Appeals Nos. H028368 & H029227); attorneys fees incurred in motions related to collection efforts in Santa Clara County ($30,250.25); attorneys fees incurred in collection efforts in Santa Cruz County ($23,697.50); attorneys fees incurred in communications with the client and the escrow company ($7,912); attorneys fees and costs related to the instant motion ($6,215); and additional costs of $1,441.08. Respondent asked that an award in the additional amount of $70,152.63 be added to the existing judgment against appellant. Appellant submitted no opposition to the motion.
Before the motion for additional attorneys fees was heard, appellant tendered payment to the Santa Cruz County Sheriff in the full amount on the outstanding writ. On January 25, 2006, the Sheriff received a total of $87,326.29 from appellant. The record does not reflect that there was a sale of the property pursuant to the order of sale.
The payment was received through escrow, apparently through a refinancing of the property.
The motion for additional attorneys fees and costs was heard on February 14, 2006, and the court issued its order March 27, 2006, granting the motion. The court wrote: "Upon review of each category questioned by [appellant], the attorneys fees and costs sought by [respondent] were reasonable, necessary, and justified under the circumstances of this case. [Appellant] resisted in virtually every way possible [respondents] efforts to enforce her judgment against him. [Appellant] must now bear the financial burden of his resistance."
Following full payment on the outstanding writ of execution on January 25, 2006, the Santa Cruz County Sheriff prepared its report and accounting and delivered these and the proceeds to respondents attorney on March 30, 2006. After a refund to appellant and $10 in costs reserved for the court, a total of $87,291.96 was received by respondents attorney on that date. The executed writ and the report and accounting of the Santa Cruz Sheriffs Department were returned and filed in Santa Clara County Superior Court on April 11, 2006.
On April 11, 2006, the court signed an "Augmented Judgment After the Order Granting Additional Attorneys fees and Costs of Enforcing Judgment." In this augmented judgment the court ruled that, based on respondents motion for attorneys fees on January 13, 2006, and the courts order granting it on March 27, 2006, the original judgment entered on July 5, 2000 was to be augmented by $70,156.63. The augmented judgment was filed on April 18, 2006.
The parties refer to this augmented judgment as the April 11, 2006 order, since it was signed on that date. However, it was not filed until April 18, 2006.
On April 25, 2006, respondent received from appellant a written demand for a full satisfaction of judgment within 15 days, pursuant to Code of Civil Procedure section 724.050, based on appellants full payment of the $87,291.96 pursuant to the writ of execution. Code of Civil Procedure section 724.050 provides that if a money judgment has been satisfied, the judgment creditor must file with the court, or deliver to the judgment debtor, an acknowledgement of the satisfaction of the judgment within 15 days of receiving a demand, or else be subject to fees and damages. Respondent then sought a clarification from the court that its order signed April 11, 2006 was intended to add the amount of $70,156.63 to the original judgment.
On May 9, 2006, after an expedited hearing, the court signed an order confirming that its April 18, 2006 augmented judgment added the additional amount of $70,156.63 to the original July 5, 2000 judgment. The court further found that the $87,301.96 tendered by appellant through the Santa Cruz County Sheriffs Department "represented only partial satisfaction of the Judgment but not full satisfaction." Accordingly, the court found, respondent "is not required to execute a full satisfaction of Judgment at this time."
The present appeal is taken from the courts augmented judgment entered April 18, 2006.
ANALYSIS
Appellant argues that the outstanding judgment was paid in full pursuant to the writ of execution on January 25, 2006, prior to any additional costs or fees being added to it. He makes further arguments regarding the propriety of the fees awarded by the court. We do not reach these further arguments. Appellant did not raise any claims in the trial court that the amounts or categories of the fees sought were improper or unreasonable. He did not oppose the motion for fees and costs. And he did not appeal from the order awarding fees, filed on March 27, 2006. That order is now final and appellant may not challenge it. The only appeal before us is the appeal from the April 18, 2006 order of the court amending the underlying judgment. The single issue we address is whether the court could augment the underlying judgment by adding to it the amounts awarded in the March 27, 2006 order. As to this issue, we agree with appellant that the full payment of the writ of execution satisfied the judgment, which therefore could not be later augmented with additional fees. Accordingly, we will reverse the April 18, 2006 order.
The question whether the court had the power to augment a judgment after payment in full of amounts on an outstanding writ of execution involves interpreting the statutes contained in the Code of Civil Procedure governing enforcement of judgments. (Code Civ. Proc., pt. 2, tit. 9.) Issues involving the construction and application of statutes are issues of law. (Evid. Code, § 310, subd. (a).) Thus, on appeal, "the meaning and effect of statutory provisions is a matter for our independent review." (Service Employees Internat. Union v. Board of Trustees (1996) 47 Cal.App.4th 1661, 1665; Kaatz v. City of Seaside (2006) 143 Cal.App.4th 13, 28.)
All further unspecified statutory references are to the Code of Civil Procedure.
Californias enforcement of judgments law is codified at section 680.010 through section 724.260. It is a comprehensive statutory scheme governing enforcement of civil judgments in California. (Imperial Bank v. Pim Electric, Inc. (1995) 33 Cal.App.4th 540, 546.) The statutes generally provide that a judgment creditor may enforce a money judgment by obtaining a writ of execution directed to the levying officer in the county where the debtors property is located and thus where the levy is to be made. (§ 669.510.) The writ requires the levying officer to enforce the money judgment, and it must set forth "[t]he total amount of the money judgment as entered or renewed, together with costs thereafter added to the judgment pursuant to Section 685.090" and accrued interest. (§ 699.520, subd. (e).) A judgment creditor claiming costs of enforcement as part of the judgment, including attorneys fees if authorized, must file a memorandum of costs and/or a motion for attorneys fees before the judgment is fully satisfied. (§§ 685.070, 685.080.) Costs are added to and become part of the judgment "upon the filing of an order allowing costs . . . ." (§ 685.090.) If a writ of execution is outstanding when costs are added to the judgment, the judgment creditors attorney may obtain a certified copy of the court order allowing costs and deliver it to the levying officer, and those amounts may then be added to the amount to be collected pursuant to the writ. (§ 685.090, subds. (c) & (d).)
Here the levying officer, the Santa Cruz County Sheriff, recorded a levy on property owned by appellant in Santa Cruz County, on July 26, 2005, pursuant to a writ of execution prepared by respondent as the judgment creditor, setting forth the total amount of $82,848.31. The writ of execution included the amount of the renewed judgment, plus costs and attorneys fees that had been awarded by the court up to that time, plus interest. The levying officer is instructed to calculate interest at a daily rate until the judgment is satisfied. (§ 685.050, subd. (b)(2).) Interest ceases to accrue when the money judgment is "satisfied in full," on the date the proceeds are "actually received by the levying officer." (§ 685.030, subd. (a)(3).) Here that date was January 25, 2006. The accounting delivered by the Sheriff shows that the full amount set forth on the writ of execution was collected on that date, including interest to date and the costs that had been awarded and added to the judgment up to that time.
Respondent contends that appellants payment of the full amount of the outstanding writ of execution while a motion for further attorneys fees was pending was a maneuver to avoid having those fees added to the underlying judgment. Even so, however, the statutes provide that the judgment was fully satisfied on January 25, 2006, when appellant paid the Sheriff the amount due on the writ of execution. Case law is in accord. In Del Riccio v. Superior Court (1952) 115 Cal.App.2d 29, the court wrote: "When the writ has been regularly issued and executed, money collected while in the hands of the officer, is property of the judgment creditors and not the debtor . . . As between the parties, the money should be deemed to have been delivered to the creditor immediately upon its receipt by the officer . . . Correspondingly, when the debtors money is taken on a valid execution it ceases to be his and he immediately becomes entitled to partial or full satisfaction of the judgment. The rights of the parties cannot be interfered with except through procedure authorized by statute." (Id. at p. 31.) Although Del Riccio was decided prior to the present statutes comprising the enforcement of judgment law, which were enacted in 1982, the governing principles have not changed.
Because we decide that the judgment was satisfied on January 25, 2006, when appellant paid the Sheriff the full amount on the writ of execution, the additional costs and fees later awarded by the court in its March 27, 2006 order cannot be added to the judgment. (§ 685.090, subd. (a)(1).) We find no provision in the statutory scheme authorizing a court to augment a judgment after it has been fully satisfied.
Respondent argues that the fees and costs were properly requested by noticed motion on January 13, 2006, prior to any payment on the writ. However, nothing in the statutory scheme can reasonably be construed to provide that the filing of a motion for fees operates to stay an outstanding writ of execution. Section 685.070, subdivision (b) and section 685.080, subdivision (a), relied upon by respondent, provide only that requests for these fees and costs must be made to the court, as they were here, prior to full satisfaction of the judgment. The fact that the motion was timely filed, however, does not entitle respondent to augment an underlying judgment that was paid in full before the court filed its order allowing costs, which in this case was on March 27, 2006. "The amount required to satisfy a money judgment is the total amount of the judgment as entered or renewed with the . . . addition of costs added to the judgment pursuant to Section 685.090." (Code Civ. Proc., § 695.210, subd. (a).) Under section 685.090, costs become a part of a judgment only "[u]pon the filing of an order allowing the costs. . . ." (§ 685.090, subd. (a)(1).) And where there is an outstanding writ of execution, the levying officer is not authorized to collect such costs absent a certified copy of the order awarding them. (§ 685.090, subd. (c)(1).)
As we have noted, we do not decide any issues regarding the courts order of March 27, 2006, granting respondents motion for fees and costs. That order was not appealed from and is a final order. We decide only that the additional amounts awarded by the court cannot augment a judgment that had already been satisfied through payment of the full amount on an outstanding writ of execution.
DISPOSITION
The courts order filed April 18, 2006, augmenting the July 5, 2000 judgment is reversed. The parties are to bear their own costs on appeal.
We Concur:
MIHARA, J.
McADAMS, J.