Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CV759549
Bamattre-Manoukian, J.
This appeal arises from appellant Victoria Kellogg’s attempt to collect costs, including attorney’s fees, incurred in enforcing a judgment against respondent Lowell F. Anderson. On July 5, 2000, Kellogg obtained a judgment in her favor that included an award of attorney’s fees in the amount of $22,566.92. Anderson failed to satisfy the judgment and Kellogg filed a motion seeking attorney’s fees and costs incurred in her efforts to enforce the judgment. After Kellogg filed the motion, but before the motion was granted on March 27, 2006, Anderson satisfied the judgment. Thereafter, in a memorandum of costs filed June 8, 2006, Kellogg claimed that she had incurred additional attorney’s fees in enforcing the judgment. In August 2007, Kellogg filed another motion for attorney’s fees and costs for enforcement efforts made after June 8, 2006. In this motion, she also sought a writ of execution in an amount that included (1) the attorney’s fees and costs awarded pursuant to the March 27, 2006 order, (2) the attorney’s fees claimed in her June 8, 2006 memorandum of costs, and (3) the attorney’s fees and costs for enforcement efforts after June 8, 2006. The trial court denied the motion in an order filed November 26, 2007.
On appeal, Kellogg contends the trial court erred in denying her August 2007 “motion to enforce” the March 27, 2006 order and the June 8, 2006 memorandum of costs. She also argues that the trial court should have awarded her additional attorney’s fees and costs, reflecting her enforcement efforts subsequent to June 8, 2006. She requests attorney’s fees on appeal.
For reasons that we will explain, we will reverse the November 26, 2007 order and direct the trial court on remand to hold a hearing limited to the issue of whether Kellogg can make the showing required for issuance of a writ of execution to enforce the March 27, 2006 order. (Code Civ. Proc., § 699.520) We determine that Kellogg fails to demonstrate error concerning the June 8, 2006 memorandum of costs, due to her failure to provide an adequate record. Regarding the additional attorney’s fees and costs incurred by Kellogg subsequent to June 8, 2006, we conclude that her August 2007 motion was untimely to the extent the fees and costs were incurred in enforcing the July 5, 2000 judgment (§ 685.080, subd. (a)) and, to the extent the fees and costs were incurred in enforcing the March 27, 2006 order, the motion raises an issue that we need not reach. Lastly, we will leave the issue of Kellogg’s entitlement to attorney’s fees on appeal and the amount, if any, to the trial court to determine on remand.
All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
BACKGROUND
The Judgment in Favor of Kellogg
Anderson filed this action in 1996, seeking to collect a real estate commission. The matter went to arbitration, where the arbitrator found in favor of Kellogg and awarded her $22,566.92 in attorney’s fees. The arbitration award was confirmed in superior court and judgment was entered on July 5, 2000. Anderson appealed, and we affirmed the judgment in an opinion filed June 13, 2001. (Anderson v. Morrill, supra, H021955.)
We take judicial notice of this court’s opinions in previous appeals in this action. (Anderson v. Morrill (June 13, 2001, H021955) [nonpub. opn.]; Anderson v. Kellogg (Oct. 4, 2005, H028368) [nonpub. opn.]; Anderson v. Kellogg (Apr. 30, 2007, H030311) [nonpub. opn.].) Our summary of the pertinent factual and procedural background includes some information that we have taken from our prior opinions.
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.
Kellogg subsequently filed a motion in the trial court for attorney’s 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. Anderson filed an appeal from the order (H026683), but the 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 Additional Amounts Added to the Judgment
Anderson did not immediately pay the judgment, and over the next several years Kellogg sought to enforce the judgment. As Kellogg continually attempted to collect on the judgment, additional attorney’s fees, costs, and interest were added to the judgment. For example, in late August 2004, Kellogg filed an amended costs memorandum and application for renewal of judgment in the amount of $60,569.05. In response, Anderson filed objections to the renewal of the judgment and moved to tax costs. The trial court rejected Anderson’s objections and denied his motion to tax costs by written order on November 19, 2004. Anderson filed an appeal from the order. We affirmed the order in an opinion filed October 4, 2005. (Anderson v. Kellogg, supra, H028368.)
In early May 2005, Kellogg filed a memorandum of costs in which she claimed additional enforcement costs and post judgment interest. When added to the renewed judgment, the amount totaled $81,734.52. Anderson filed a motion to tax costs, which the trial court denied in an order filed June 22, 2005. A fourth appeal (H029227) filed by Anderson 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.)
The Issuance of a Writ of Execution
Kellogg applied for a writ of execution, which was issued on July 7, 2005. On July 26, 2005, the Santa Cruz County Sheriff recorded a “Notice of Levy under Writ of Execution” on property owned by Anderson in Santa Cruz County. The total amount sought by Kellogg on the writ of execution was $82,848.31, which included, among other things, additional interest and the fee for issuance of the writ. On September 19, 2005, Kellogg 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 Kellogg’s favor 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, Kellogg filed a memorandum of costs after judgment for attorney’s fees and costs that she incurred in her collection efforts and Anderson’s appeals. On December 6, 2005, Anderson filed a motion to tax costs and strike the fees. Kellogg sought an expedited hearing on Anderson’s motion to tax, in order that the amounts she sought in her memorandum of costs could be included in the pending writ of execution prior to the sale of the property. Anderson’s motion to tax costs and strike fees was set for an expedited hearing on December 15, 2005. Anderson argued that attorney’s fees must be sought by a noticed motion rather than in a memorandum of costs. The trial court agreed and granted Anderson’s motion to strike attorney’s fees on December 16, 2005. Although finding that Kellogg had not complied with the requirements of section 685.080, which requires a noticed motion to recover attorney’s fees as costs, the court noted that Anderson “acknowledges that [Kellogg] is entitled to attorneys’ fees, but did not follow the appropriate procedure.”
Kellogg’s January 2006 Motion for Attorney’s Fees and Costs of Enforcement of Judgment
Following her unsuccessful attempt to claim attorney’s fees in a memorandum of costs, Kellogg filed a motion on January 13, 2006, for attorney’s fees and costs of enforcement of judgment. Kellogg’s notice of motion and supporting memorandum of points and authorities requested $70,152.63 in attorney’s fees and costs, while her attorney requested $70,156.63 in the supporting declaration. The amounts requested by Kellogg reflected, among other things, attorney’s fees for defending two appeals, attorney’s fees for motions or other collection efforts in Santa Clara County and Santa Cruz County, attorney’s fees for communications with Kellogg and the escrow company, and attorney’s fees and costs for the instant motion. Kellogg sought to add the fees and costs to the existing judgment. Anderson did not oppose the motion.
Anderson’s Satisfaction of Judgment
Before Kellogg’s motion was heard, the Santa Cruz County Sheriff received a total of $87,326.29 from Anderson on January 25, 2006, on the outstanding writ. Anderson’s payment included additional interest that had accrued to date. The payment satisfied the judgment. (Anderson v. Kellogg, supra, H030311.)
In our prior opinion, Anderson v. Kellogg, supra, H030311, we noted that the record did 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 Trial Court’s March 27, 2006 Order Granting Kellogg’s January 2006 Motion for Attorney’s Fees and Costs
Kellogg’s January 2006 motion for additional attorney’s fees and costs (in which the supporting papers requested $70,152.63 and $70,156.63), was heard on February 14, 2006. In an order filed March 27, 2006, the trial court granted the motion, without specifying the exact amount awarded to Kellogg. The court stated: “Upon review of each category questioned by [Anderson], the attorneys’ fees and costs sought by [Kellogg] were reasonable, necessary, and justified under the circumstances of this case. [Anderson] resisted in virtually every way possible [Kellogg’s] efforts to enforce her judgment against him. [Anderson] must now bear the financial burden of his resistance. [¶] IT IS ORDERED that [Kellogg’s] motion for an order granting additional attorneys’ fees and costs is GRANTED as requested. [Kellogg] is directed to prepare a judgment consistent with this order.”
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 Kellogg’s attorney on March 30, 2006. After certain adjustments, a total of $87,291.96 was received by Kellogg’s attorney on that date. The executed writ and the report and accounting of the Santa Cruz Sheriff’s Department were returned and filed in Santa Clara County Superior Court on April 11, 2006.
The Augmented Judgment of April 18, 2006
The trial court signed an “Augmented Judgment After the Order Granting Additional Attorney’s fees and Costs of Enforcing Judgment” on April 11, 2006, and it was filed on April 18, 2006. In the augmented judgment the court ruled that, based on Kellogg’s motion for attorney’s fees on January 13, 2006, and the court’s order granting it on March 27, 2006, the original judgment entered on July 5, 2000 was to be augmented by $70,156.63.
On April 25, 2006, Kellogg received from Anderson a written demand for a full satisfaction of judgment, pursuant to section 724.050, based on Anderson’s payment of $87,291.96 pursuant to the writ of execution. After receiving Anderson’s demand, Kellogg filed a motion seeking clarification from the trial court that its order signed April 11, 2006, was intended to add the amount of $70,156.63 to the original judgment.
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.
On May 9, 2006, after an expedited hearing, the trial court signed an order confirming that its April 18, 2006 augmented judgment added the amount of $70,156.63 to the original July 5, 2000 judgment. The court determined that the amount tendered by Anderson through the Santa Cruz County Sheriff’s Department “represented only partial satisfaction of the Judgment but not full satisfaction.” The court concluded that Kellogg “is not required to execute a full satisfaction of Judgment at this time.” The order was filed on May 10, 2006.
Kellogg’s June 2006 Memorandum of Costs After Judgment
On June 8, 2006, Kellogg filed a memorandum of costs after judgment. In the memorandum, Kellogg claimed that she incurred $22,170 in attorney’s fees from February 28, 2006 “to present” in enforcing the judgment. The memorandum was dated June 6, 2006.
On June 22, 2006, Anderson served on Kellogg a motion to tax costs and strike the attorney’s fees that Kellogg claimed in the memorandum of costs. Anderson contended the attorney’s fees must be sought by a noticed motion rather than in a memorandum of costs. The hearing on the motion was noticed for August 15, 2006. On August 2, 2006, Kellogg filed written opposition.
On appeal, Kellogg asserts that Anderson’s motion to tax costs and strike fees was denied, but the document she cites in her appellant’s appendix is only an unsigned, proposed order.
The Reversal of the April 18, 2006 Order Augmenting the Judgment
On June 15, 2006, Anderson filed a notice of appeal regarding the augmented judgment of April 18, 2006. In an opinion filed April 30, 2007, we reversed the trial court’s order augmenting the judgment. (Anderson v. Kellogg, supra, H030311.) Our opinion only addressed the “single issue” of “whether the court could augment the underlying judgment by adding to it the amounts awarded [to Kellogg] in the March 27, 2006 order.” We determined that “the judgment was satisfied on January 25, 2006, when [Anderson] paid the Sheriff the full amount on the writ of execution” and thus “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).)” (Anderson v. Kellogg, supra, H030311.) We clarified that we were not deciding “any issues regarding the court’s order of March 27, 2006, granting [Kellogg’s] motion for fees and costs. That order was not appealed from and is a final order.”
Kellogg’s August 2007 Motion for Additional Attorney’s Fees and Costs and Issuance of a Writ of Execution
On August 21, 2007, Kellogg filed a motion in the trial court “to clarify and execute the Sixth District’s Order of April 30, 2007 in context of this Court’s (Department 16) Order of March 27, 2006.” More specifically, Kellogg requested “an award granting additional fees and costs in enforcement of the prior orders, plus an order directing the clerk of Santa Clara County to issue a writ of execution for enforcement of this debt.” In support of the motion, Kellogg filed a memorandum of points and authorities and a declaration from counsel.
First, Kellogg contended that she was entitled to $70,156.63 based on the trial court’s March 27, 2006 order granting attorney’s fees and costs, plus $10,313.02 in interest, for a sum of $80,469.65.
Second, she asserted that she was entitled to $22,170 based on her June 8, 2006 memorandum of costs, as well as $2,749.08 in interest, for a sum of $24,919.08.
Third, she requested an additional $59,087.68 in attorney’s fees and costs incurred for enforcement efforts after June 8, 2006. This amount was based on attorney’s fees and costs incurred in opposing Anderson’s motion to tax costs ($43,399.65); attorney’s fees incurred for “enforcing existing orders of the court with escrow and title companies due to existing liens on property” ($9,975.75); attorney’s fees related to the instant motion and an earlier ex parte application ($5,617.08); and costs associated with an “attempt to obtain updated abstracts of judgment against” Anderson ($95.20). Kellogg maintained that she was entitled to recover attorney’s fees and costs of enforcement pursuant to sections 685.040, 685.080, subdivision (a), and 1033.5, subdivision (a)(10)(A).
Fourth, Kellogg requested that the “Clerk of Santa Clara County” be ordered to issue a writ of execution for the total amount of $164,476.41. Kellogg also requested “an order compelling the clerk of Santa Clara County to award an abstract of judgment against” Anderson and in favor of her.
Anderson served written opposition on September 6, 2007, contending that Kellogg was not entitled to costs or attorney’s fees. Anderson explained that the judgment had been satisfied on January 25, 2006. In the absence of a judgment to enforce, he reasoned that Kellogg no longer had a “right” to the costs of enforcing a judgment under section 685.040. He also argued that “[c]osts must be claimed before the judgment is fully satisfied,” pursuant to sections 685.070, subdivision (b), and 685.080, subdivision (a). Because the judgment was satisfied on January 25, 2006, Anderson asserted that Kellogg’s current motion, filed in August 2007, was untimely. He further contended that there no longer existed a judgment “upon which to issue a writ of execution.” Anderson pointed out that the additional costs and fees awarded by the trial court in its March 27, 2006 order could not be added to the judgment because the judgment had already been satisfied, according to our prior opinion, Anderson v. Kellogg, supra, H030311. Lastly, Anderson asserted that Kellogg was required to provide an acknowledgment of satisfaction of judgment. (§§ 724.010, 724.040.)
Kellogg filed a reply brief on September 10, 2007. She argued that Anderson’s opposition was late and should not be considered by the trial court. Substantively, Kellogg contended that a memorandum of costs or a noticed motion for costs need only be filed before the judgment is satisfied. (§§ 685.070, subd. (b), 685.080, subd. (a).) In this case, the March 27, 2006 order awarding additional attorney’s fees and costs was based on her January 13, 2006 motion, which she filed before Anderson satisfied the judgment on January 25, 2006. Although Anderson eventually satisfied the judgment, he failed to satisfy the March 27, 2006 order that awarded Kellogg additional attorney’s fees and costs. Further, while the April 18, 2006 order augmenting the judgment was reversed by the Court of Appeal, the March 27, 2006 order remained “final and valid . . . .” Kellogg asserted that a writ of execution may be issued for the March 27, 2006 order based on sections 680.230 and 680.270, and that she was entitled to costs and fees for enforcement of a “prior order.” Without explanation, Kellogg concluded her reply brief by requesting a total of $155,466.41, which was less than the amount requested in her moving papers. While she continued to seek the same sums for the March 27, 2006 order and June 8, 2006 memorandum of costs ($70,156.63 and $22,170), she requested a lesser amount of interest on those sums ($10,894.78), and she sought a smaller amount of additional attorney’s fees and costs ($52,245).
On September 12, 2007, Anderson served Kellogg with a “Supplemental Points and Authorities” in response to Kellogg’s reply brief. Anderson asserted that Kellogg failed to timely serve her initial motion papers and therefore her motion should be denied. He also reiterated the arguments made in his opposition brief. Lastly, he requested attorney’s fees under section 724.080 based on Kellogg’s failure to issue a satisfaction of judgment.
The Trial Court’s November 26, 2007 Order Denying Kellogg’s August 2007 Motion for Additional Attorney’s Fees and Costs and Issuance of Writ of Execution
Kellogg’s motion was heard on September 13, 2007, and the trial court denied the motion by written order filed November 26, 2007. The trial court believed the “dispute” had been “resolved” by our prior opinion (Anderson v. Kellogg, supra, H030311) in which we concluded that the additional costs and fees awarded in the March 27, 2006 order could not be added to the judgment. The trial court also referred to a portion of the opinion in which we indicated that the levying officer was “not authorized to collect such costs . . . .” The trial court stated that “[a]lthough the motion for attorney fees must be filed before satisfaction of judgment, it does not operate ‘to stay an outstanding writ of execution,’ ” citing our prior opinion. Lastly, the trial court declined to address whether Anderson was entitled to attorney’s fees “because the only affirmative relief requested was [Kellogg’s] motion for attorney fees and costs.”
On December 11, 2007, Kellogg filed an acknowledgment that the judgment was satisfied “in full.” Kellogg indicated that Anderson’s “[p]ayment of $87,291.96 satisfies the writ of execution issued on 7/7/05, . . . Payment does not satisfy the 3/27/06 order.”
On December 27, 2007, Kellogg filed a notice of appeal from the trial court’s November 26, 2007 order.
ANALYSIS
On appeal, Kellogg contends the trial court erred in denying her “motion to enforce” the March 27, 2006 order granting attorney’s fees and costs and the June 8, 2006 memorandum of costs. She also argues the trial court should have awarded her additional attorney’s fees and costs, reflecting her enforcement efforts subsequent to June 8, 2006. She requests attorney’s fees on appeal.
We first turn to Kellogg’s contentions regarding her “motion to enforce” prior orders of the trial court. We will then address her argument that additional attorney’s fees and costs should have been awarded. Lastly, we will consider her request for attorney’s fees on appeal.
Because no respondent’s brief was filed, we will decide the present appeal on the record, the opening brief, and any oral argument by the appellant. (Cal. Rules of Court, rule 8.220(a)(2), formerly rule 17(a); Nakamura v. Parker (2007) 156 Cal.App.4th 327, 334.)
Enforcement of March 27, 2006 Order
We understand Kellogg to argue on appeal that the trial court should have directed the clerk of the superior court to issue a writ of execution for the amount necessary to satisfy the March 27, 2006 order. It appears the trial court believed the order was not enforceable through execution based on our determination in Anderson v. Kellogg, supra, H030311, that the amount awarded in the March 27, 2006 order could not be added to the judgment.
Kellogg maintains that our prior opinion, Anderson v. Kellogg, supra, H030311, only held that the judgment could not be augmented, and otherwise left undisturbed the March 27, 2006 order. Kellogg reasons that because the March 27, 2006 order was not appealed from and is a final order, “[i]t is a separate, post judgment order that is enforceable.” She contends that issuance of a writ of execution is proper under section 699.510, subdivision (a), which provides in part: “after entry of a money judgment, a writ of execution shall be issued by the clerk of the court upon application of the judgment creditor . . . .” In the trial court, Kellogg argued that a “judgment” includes the March 27, 2006 order, citing sections 680.230 and 680.270.
Whether a writ of execution may issue for the March 27, 2006 order requires the interpretation of various sections of the Enforcement of Judgments Law (§ 680.010 et seq.). We begin our analysis with a determination of the appropriate standard of review where, as here, the issue to be decided involves statutory interpretation. “Matters of interpreting and applying a statute are questions of law. [Citations.]” (Amdahl Corp. v. County of Santa Clara (2004) 116 Cal.App.4th 604, 611.) Questions of law are reviewed under the de novo standard of review. (Ibid.) “Thus, ‘ “[w]e independently construe statutory law . . . .” ’ ” (Ibid.)
The scope of our independent review is guided by California Supreme Court authority regarding the interpretation of a statute. “In statutory construction cases, our fundamental task is to ascertain the intent of the lawmakers so as to effectuate the purpose of the statute. [Citation.]” (Estate of Griswold (2001) 25 Cal.4th 904, 910.) “ ‘We begin by examining the statutory language, giving the words their usual and ordinary meaning. [Citation.]’ ” (Id. at p. 911.) “If the terms of the statute are unambiguous, we presume the lawmakers meant what they said, and the plain meaning of the language governs. [Citations.]” (Ibid.)
“ ‘Additionally, however, we must consider the [statutory language] in the context of the entire statute [citation] and the statutory scheme of which it is a part.’ ” (Phelps v. Stostad (1997) 16 Cal.4th 23, 32.) “ ‘ “ ‘When used in a statute [words] must be construed in context, keeping in mind the nature and obvious purpose of the statute where they appear.’ [Citations.] Moreover, the various parts of a statutory enactment must be harmonized by considering the particular clause or section in the context of the statutory framework as a whole. [Citations.]” ’ [Citation.]” (Ibid.)
“Where uncertainty exists consideration should be given to the consequences that will flow from a particular interpretation. [Citation.]” (Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1387; Matea v. Workers’ Comp. Appeals Bd. (2006) 144 Cal.App.4th 1435, 1445.) Thus, “if a statute is amenable to two alternative interpretations, the one that leads to the more reasonable result will be followed [citation].” (Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735.)
The Enforcement of Judgments Law, which includes sections 680.010 through 724.260 (§ 680.010), “is a comprehensive scheme governing the enforcement of all civil judgments in California” (Imperial Bank v. Pim Electric, Inc. (1995) 33 Cal.App.4th 540, 546). The Enforcement of Judgments Law generally provides 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 debtor’s property is located and thus where the levy is to be made. (§ 669.510.) In “ordinary civil actions,” the clerk of the court must issue a writ of execution upon application by the judgment creditor. (In re Marriage of Farner (1989) 216 Cal.App.3d 1370, 1376; § 699.510, subd. (a).) “The clerk acts in a ministerial capacity and has no discretion to refuse issuance of the writ when confronted with an unconditional judgment, in ordinary form. [Citation.]” (In re Marriage of Farner, supra, 216 Cal.App.3d at p. 1376.)
A writ of execution may issue only “after entry of a money judgment . . . .” (§ 699.510, subd. (a).) “ ‘Money judgment’ means that part of a judgment that requires the payment of money.” (§ 680.270.) “Judgment” includes an “order[] or decree entered in a court of this state.” (§ 680.230.)
Because the term “judgment” is defined to include an “order,” a writ of execution may issue after the trial court has made an order awarding money. For example, it has been stated that “monetary sanction orders are enforceable through the execution of judgment laws. [Citation.] These orders have the force and effect of a money judgment, and are immediately enforceable through execution, except to the extent the trial court may order a stay of the sanction. [Citations.]” (Newland v. Superior Court (1995) 40 Cal.App.4th 608, 615.)
An order awarding attorney’s fees may also be enforced through the Enforcement of Judgments Law. In Alioto Fish Co. v. Alioto (1994) 27 Cal.App.4th 1669 (Alioto Fish Co.), the plaintiff was awarded attorney’s fees and costs that were incurred in collecting an earlier award of money. (Alioto Fish Co., supra, 27 Cal.App.4th at p. 1676.) Following the plaintiff’s unsuccessful efforts to collect on the fee award, the trial court appointed a receiver and ordered certain defendants to deposit their income into the receiver’s bank account, among other requirements. (Ibid.) On appeal, some of the defendants argued that the trial court did not have “ ‘jurisdiction’ under the Enforcement of Judgments Act (Code Civ. Proc., § 680.010 et seq.) to appoint a receiver or otherwise compel compliance with the receiver order, because the underlying . . . Fee Order [was] merely an order and therefore not an enforceable ‘judgment.’ ” (Id. at p. 1686.) The defendants also asserted that “even if an order can be enforced as a judgment, the order was never entered in the ‘judgment book’ pursuant to Code of Civil Procedure section 668.” (Ibid.)
The Court of Appeal determined that the fee order constituted a “ ‘judgment’ ” under section 680.230 because “ ‘judgment’ ” is defined to include an “ ‘order . . . .’ ” (Alioto Fish Co., supra, 27 Cal.App.4th at pp. 1686-1687.) The court also observed that under section 668.5, the clerk of the court “is not required to enter judgments in a judgment book. Instead, ‘the date of filing the judgment with the clerk shall constitute the date of its entry.’ (Code Civ. Proc., § 668.5.) [Citation.] The . . . Fee Order was therefore an ‘order . . . entered in a court of this state.’ (Code Civ. Proc., § 680.230.)” (Alioto Fish Co., supra, 27 Cal.App.4th at p. 1687.)
Not every judgment indicating that a party is entitled to money will be enforceable. “[T]o support the execution process,” the judgment “should state with certainty the amount to be paid [citations],” although “it is sufficient if the amount may be definitely ascertained by an inspection of the record. [Citation.]” (Foust v. Foust (1956) 47 Cal.2d 121, 124; see also § 699.520, subd. (e) [the writ of execution must include the “total amount of the money judgment as entered”].) In In re Marriage of Farner, supra, 216 Cal.App.3d 1370, the Court of Appeal determined that the clerk of the court “did not have authority to issue the writ” of execution because, among other things, “the clerk could not . . . determine the exact amount owing to” respondent. (In re Marriage of Farner, supra, 216 Cal.App.3d at p. 1373.) The court reasoned that “where the judgment is conditional and, thus, a judicial question arises as to the judgment creditor’s right, the better practice is to bring the operative facts to the court’s attention and move for an order directing issuance of the writ. [Citation.]” (Id. at pp. 1376-1377.) In the case before the Court of Appeal, “the order was not ‘in ordinary form’ and raised a judicial question because the clerk could not, with any certainty, ascertain the amount to be paid either from the order itself or the record as it existed upon entry of the order. The order potentially was a candidate for enforcement by execution, but only after review and hearing in the trial court.” (Id. at p. 1377.)
In our prior opinion, we determined that the attorney’s fees and costs awarded to Kellogg by the trial court in the March 27, 2006 order could not be added to the judgment because Anderson had already satisfied the judgment. (Anderson v. Kellogg, supra, H030311.) We did “not decide any issues regarding the [trial] court’s order of March 27, 2006 . . . . That order was not appealed from and is a final order.” Subsequent to our opinion and following a motion by Kellogg, the trial court has refused to direct the clerk of the superior court to issue a writ of execution in the amount that Kellogg contends is necessary to satisfy the March 27, 2006 order. To the extent the March 27, 2006 order requires Anderson to pay a definitely ascertainable amount of money to Kellogg, we determine that the order is enforceable through execution. (§§ 680.230, 680.270, 699.510, subd. (a), 699.520, subd. (e); Newland v. Superior Court, supra, 40 Cal.App.4th at p. 615; Alioto Fish Co., supra, 27 Cal.App.4th at p. 1687; Foust v. Foust, supra, 47 Cal.2d at p. 124.)
Our determination that the March 27, 2006 order may be enforceable through execution, despite the fact that Anderson has already satisfied the underlying judgment, is supported by the statutes concerning a judgment creditor’s enforcement costs.
A “judgment creditor is entitled to the reasonable and necessary costs of enforcing a judgment.” (§ 685.040.) These costs may include attorney’s fees incurred in enforcing the judgment if, as in this case, “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.” (§ 685.040.) (Anderson v. Kellogg, supra, H028368 [the underlying judgment in this case included an award of attorney’s fees to Kellogg within the meaning of section 685.040].) A judgment creditor claiming costs of enforcing a judgment, including attorney’s fees, must file a memorandum of costs and/or a motion for attorney’s fees “[b]efore the judgment is fully satisfied but not later than two years after the costs have been incurred . . . .” (§§ 685.070, subd. (b); 685.080, subd. (a).) Costs are added to and become part of the judgment “[u]pon the filing of an order allowing the costs . . .” or “upon the expiration of the time for” filing a motion to tax costs. (§ 685.090, subd. (a)(1), (2).) “The costs added to the judgment pursuant to this section are included in the principal amount of the judgment remaining unsatisfied.” (§ 685.090, subd. (b).) If a writ of execution is outstanding when costs are added to the judgment, those costs will be added to the amount to be collected pursuant to the writ if the levying officer receives a certified copy of the court order allowing the costs before the writ is returned. (§ 685.090, subd. (c)(1).)
Section 1033.5, subdivision (a)(10)(A), provides that attorney’s fees are allowable costs when authorized by contract.
These statutes generally reflect a legislative intent to reimburse a judgment creditor for costs necessarily incurred in enforcing a judgment, while protecting the judgment debtor from enforcement costs that are excessive or untimely claimed.
In this case, Kellogg timely filed a motion for attorney’s fees and costs incurred in enforcing the judgment on January 13, 2006, before the judgment was satisfied. Several days later, the judgment was satisfied in full on January 25, 2006. Approximately two months later, Kellogg’s motion for attorney’s fees and costs was granted by order filed March 27, 2006. By this time, however, the judgment had already been satisfied and hence the additional attorney’s fees and costs could not be added to that judgment. (Anderson v. Kellogg, supra, H030311.)
Under these circumstances, we determine that the judgment creditor should be allowed to seek enforcement of the order awarding fees and costs through execution. To conclude otherwise would allow a judgment debtor to resist full payment of a judgment for a period of time and force the judgment creditor to bear the costs of enforcement so long as the judgment is satisfied before disposition of the judgment creditor’s pending motion for enforcement costs. This result would undermine the intent of the statutes to reimburse the judgment creditor for costs necessarily incurred in enforcing the judgment, where the costs are neither excessive nor untimely claimed. Thus, in this case, we determine that Anderson’s satisfaction of the judgment in late January 2006, while Kellogg’s motion for additional attorney’s fees and costs of enforcement was still pending, does not prevent Kellogg from seeking enforcement of the March 27, 2006 order granting her motion.
Although Anderson’s satisfaction of the underlying judgment does not preclude enforcement of the March 27, 2006 order, Kellogg must still make the showing required for issuance of a writ of execution. (§ 699.520.) In particular, she must establish that the March 27, 2006 order requires Anderson to pay a definitely ascertainable sum of money. (§ 699.520, subd. (e); Foust v. Foust, supra, 47 Cal.2d at p. 124.) For this reason, we will remand the matter for a further hearing in the trial court to determine whether Kellogg can make the showing required by section 699.520 for issuance of a writ of execution. The parties may submit additional evidence and argument at this hearing. If Kellogg makes the required showing, then the trial court shall direct the clerk of the court to issue a writ of execution.
Section 699.520 requires a writ of execution to include the following information: “(a) The date of issuance of the writ. [¶] (b) The title of the court where the judgment is entered and the cause and number of the action. [¶] (c) The name and address of the judgment creditor and the name and last known address of the judgment debtor. [¶] (d) The date of the entry of the judgment and of any subsequent renewals and where entered in the records of the court. [¶] (e) The total amount of the money judgment as entered or renewed, together with costs thereafter added to the judgment pursuant to Section 685.090 and the accrued interest on the judgment from the date of entry or renewal of the judgment to the date of issuance of the writ, reduced by any partial satisfactions and by any amounts no longer enforceable. [¶] (f) The amount required to satisfy the money judgment on the date the writ is issued. [¶] (g) The amount of interest accruing daily on the principal amount of the judgment from the date the writ is issued. [¶] (h) Whether any person has requested notice of sale under the judgment and, if so, the name and mailing address of such person. [¶] (i) The sum of the fees and costs added to the judgment pursuant to Section 6103.5 or 68511.3 of the Government Code and which is in addition to the amount owing to the judgment creditor on the judgment. [¶] (j) Whether the writ of execution includes any additional names of the judgment debtor pursuant to an affidavit of identity, as defined in Section 680.135.”
In conjunction with her contention that the March 27, 2006 order is enforceable and a writ of execution should issue, Kellogg also asserts that she is entitled to interest on the March 27, 2006 order. Kellogg may reassert this claim on remand at the time of the further hearing on the March 27, 2006 order.
Enforcement of June 8, 2006 Memorandum of Costs
We also understand Kellogg to be arguing that the trial court should have directed the clerk of the superior court to issue a writ of execution for the amount necessary to satisfy her June 8, 2006 memorandum of costs. Kellogg also asserts that she is entitled to interest on the amount claimed in the memorandum of costs.
Kellogg acknowledges that Anderson filed a motion to tax costs. Although she asserts on appeal that Anderson’s motion was denied and she is therefore entitled to all the attorney’s fees claimed in the memorandum of costs, she fails to provide an adequate record on appeal. The document that Kellogg cites from her appellant’s appendix is the unsigned, proposed order denying the motion. Without an adequate record showing that Anderson’s motion to tax costs was denied by the trial court, Kellogg fails to establish that she is entitled to recover the attorney’s fees claimed in her June 8, 2006 memorandum of costs. And she accordingly fails to show that the trial court erred when the court refused to direct the issuance of a writ of execution in the amount of those claimed attorney’s fees. (Bianco v. California Highway Patrol (1994) 24 Cal.App.4th 1113, 1125 [a lower court’s order is presumed correct and an appellant must affirmatively show error]; Estrada v. Ramirez (1999) 71 Cal.App.4th 618, 620, fn.1 [an appellant’s failure to provide an accurate record on appeal that demonstrates error “precludes an adequate review and results in affirmance of the trial court’s determination”].)
The unsigned, proposed order states that Anderson’s motion to tax costs and strike fees is denied, and that Kellogg’s attorney’s fees and costs “in the amount of $21,170.00, were properly included in [Kellogg’s] memorandum of costs and are hereby added to the judgment against Lowell Anderson . . . .”
Therefore, in view of Kellogg’s failure to provide an adequate record showing the denial of Anderson’s motion to tax costs, we will uphold the trial court’s refusal to issue a writ of execution for the amount she claims was necessary to satisfy her June 8, 2006 memorandum of costs.
Attorney’s Fees and Costs for Enforcement Efforts After June 8, 2006
We next turn to Kellogg’s argument that the trial court should have awarded her additional attorney’s fees and costs, reflecting her enforcement efforts subsequent to June 8, 2006. We also understand her to be contending that a writ of execution should have been issued for these additional amounts.
As previously stated, a judgment creditor is entitled to collect “the reasonable and necessary costs of enforcing a judgment.” (§ 685.040.) Collectible costs include attorney’s fees 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.” (§ 685.040.) A judgment creditor claiming costs of enforcing a judgment, including attorney’s fees, by noticed motion must file the motion “before the judgment is satisfied in full, but not later than two years after the costs have been incurred.” (§ 685.080, subd. (a).)
In the trial court, Kellogg’s August 2007 motion for attorney’s fees and costs of enforcement, her supporting memorandum of points and authorities, and her reply brief variously claimed that the additional fees and costs incurred after June 8, 2006, were for enforcing “prior orders,” the “judgment,” or a “prior order.” On appeal, Kellogg contends “[t]here is no question that [she] is entitled to costs and attorney’s fees incurred in the enforcement of her judgment against Lowell Anderson” and cites sections 685.040, 1033.5, and 685.080.
We determine that to the extent Kellogg seeks attorney’s fees and costs of enforcement of the July 5, 2000 judgment, her most recent motion was untimely filed in August 2007, after the judgment was satisfied on January 25, 2006. (§ 685.080, subd. (a).)
To the extent Kellogg seeks attorney’s fees and costs of enforcement of the March 27, 2006 order, we need not reach that issue. The right to enforcement costs, including attorney’s fees, depends in part on the existence of a “judgment” that is enforceable. (§ 685.040.) Although we construe the March 27, 2006 order to constitute a “judgment” (§ 680.230), we have concluded that a further hearing in the trial court is necessary to determine whether Kellogg can make the showing required for issuance of a writ of execution. Only after a determination is made as to whether the March 27, 2006 order is enforceable through execution will the issue of collection of enforcement costs arise, if at all. In the event the trial court rules in Kellogg’s favor that a writ of execution may issue, the parties may present additional evidence and argument to the trial court on the issue of the collection of enforcement costs.
To the extent Kellogg seeks attorney’s fees and costs of enforcement in connection with her June 8, 2006 memorandum of costs, we have, as discussed above, found that Kellogg’s failure to provide an adequate record regarding the purported denial of Anderson’s motion to tax costs is fatal to her claim.
In summary, we determine that (1) Kellogg is not entitled to attorney’s fees and costs of enforcement of the July 5, 2000 judgment; (2) she fails to demonstrate error in the denial of enforcement costs regarding the June 8, 2006 memorandum of costs; and (3) we need not reach the issue of whether attorney’s fees and costs of enforcement may be collected by Kellogg for enforcement of the March 27, 2006 order, and we express no opinion as to the merits of such a claim.
In conjunction with her request for an order directing the trial court to issue a writ of execution, Kellogg also requests that the trial court be directed to issue an abstract of judgment against Anderson. Because Kellogg fails to support this request for issuance of an abstract of judgment with legal argument, we deem the issue abandoned. (Landry v. Berryessa Union School Dist. (1995) 39 Cal.App.4th 691, 699-700.)
Attorney’s Fees on Appeal
In the last sentence of her opening brief, Kellogg requests “any additional costs and fees associated with this appeal and its enforcement after remittitur to the Superior Court.” We will leave the issue of her entitlement to attorney’s fees and the amount, if any, to the trial court to determine on remand.
DISPOSITION
The November 26, 2007 order is reversed and the trial court is directed on remand to hold a hearing limited to the issue of whether appellant Victoria Kellogg can make the showing required for issuance of a writ of execution to enforce the March 27, 2006 order, including a showing of the total amount of money awarded under the March 27, 2006 order. (§ 699.520.) The parties may submit additional evidence and argument at this hearing. If Kellogg makes the required showing, then the trial court shall direct the clerk of the court to issue a writ of execution to enforce the March 27, 2006 order.
Costs are awarded to appellant Victoria Kellogg.
WE CONCUR: ELIA, ACTING P.J., DUFFY, J.