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Hofferth v. Leonardo

California Court of Appeals, Second District, First Division
Sep 25, 2008
No. B203496 (Cal. Ct. App. Sep. 25, 2008)

Opinion


MEGAN HOFFERTH, Plaintiff and Respondent, v. MARK J. LEONARDO, Defendant and Appellant. B203496 California Court of Appeal, Second District, First Division September 25, 2008

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

APPEAL from a judgment of the Superior Court of Los Angeles County, No. SC 091261. Patricia Collins, Judge. Affirmed.

Law Offices of D. Joshua Staub and D. Joshua Staub for Defendant and Appellant.

Raiskin & Revitz and Steven J. Revitz for Plaintiff and Respondent.

HASTINGS, J.

Retired Associate Justice of the Court of Appeal, Second Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

SUMMARY

Mark J. Leonardo appeals from orders granting plaintiff Megan Hofferth’s motions to tax Leonardo’s post-judgment costs and to compel Leonardo to file an acknowledgment of satisfaction of judgment, and an order denying his ex parte application for reconsideration and an order for nunc pro tunc filing of a cost memorandum he attempted to file by fax. He contends the trial court abused its discretion by denying his ex parte application and erred in granting Hofferth’s motions because she did not fully satisfy the judgment before he “claimed” his post-judgment costs. We affirm.

BACKGROUND

Hofferth sued Leonardo—an attorney—and his client, Grover Nix, for malicious prosecution. The trial court granted Leonardo’s anti-SLAPP motion (Code Civ. Proc., § 425.16) on January 30, 2007 and entered a judgment of dismissal on April 12. The judgment provided for an award of attorney fees in the amount of $5,500 plus costs to be submitted by memorandum of costs. Leonardo filed his memorandum of costs on April 20 seeking $6,333.50, including the attorney fees already awarded.

Unless otherwise noted, all subsequent statutory references pertain to the Code of Civil Procedure.

Unless otherwise noted, all subsequent date references pertain to 2007.

The trial court issued a writ of execution for the amount of $6,480.45 on July 5. This included post-judgment interest of $131.95 and a $15 fee for issuance of the writ. Leonardo levied upon six bank accounts and recovered some funds from Washington Mutual on July 25.

On July 17, Hofferth sent Leonardo a letter asking what amount was necessary to satisfy the judgment, including interest. Leonardo responded with a claim of $10,451.72, which included $3,712.50 in post-judgment attorney fees and $180 for sheriff levy fees. Hofferth’s responsive letter on July 19 offered to deliver a check for the amount claimed, less the post-judgment attorney fees and sheriff levy fees.

On the afternoon of August 6, Hofferth sent a letter to Leonardo saying she was prepared to immediately provide a check for $6,774.92 minus the amount the sheriff took from her bank account. Hofferth’s letter stated that if Leonardo had not accepted her tender by noon the next day, she would deposit the money with the sheriff and file a motion to compel Leonardo to acknowledge her satisfaction of the judgment. At about 5:23 p.m. the same day, Leonardo apparently attempted to file a memorandum of post-judgment costs by faxing it to the court. He also served the memorandum on Hofferth by mail.

The declaration of Leonardo’s attorney provided in opposition to Hofferth’s motions pinpointed a memorandum of costs dated July 17 as the one he attempted to fax file, whereas counsel’s subsequent declaration in support of Leonardo’s ex parte application pointed to a different memorandum dated August 6.

On August 8, Hofferth paid $6,732.05 to the sheriff for payment to Leonardo in this case. The amount of the payment was the amount the sheriff’s office stated was owed to satisfy the writ of execution.

On August 13, Hofferth made a demand upon Leonardo, in accordance with section 724.050, subdivisions (a) and (b), to file an acknowledgment of the satisfaction of the judgment. Leonardo immediately responded that Hofferth had not satisfied the judgment because she had not paid the post-judgment attorney fees and costs. Hofferth served (and presumably filed) her motions to tax the post-judgment costs and compel an acknowledgement of her satisfaction of the judgment on August 14. Leonardo opposed each motion.

On August 22, Leonardo filed his August 6 memorandum for post-judgment costs.

The sheriff issued counsel for Leonardo a warrant for $6,720.29 on August 31. Counsel for Leonardo received and cashed this warrant on September 4.

On October 1, the trial court granted both of Hofferth’s motions and denied as moot Leonardo’s motion to compel responses to post-judgment discovery.

Leonardo then made an ex parte application for nunc pro tunc filing of the memorandum of post-judgment costs as of August 7. He also sought reconsideration of the court’s rulings on Hofferth’s motions. On October 10, the trial court denied Leonardo’s ex parte application.

Leonardo apparently filed two more memoranda of post-judgment costs dated September 22 and 24, respectively. On November 5, the trial court granted Hofferth’s motion to tax the costs reflected on these memoranda.

Leonardo appealed from the court’s October 1, October 10, and November 5 orders.

DISCUSSION

1. Hofferth’s motions

Leonardo contends that the trial court erred by granting Hofferth’s motions to tax costs and compel an acknowledgement of her satisfaction of the judgment. He argues that Hofferth did not fully satisfy the judgment on August 8 because she did not pay his post-judgment costs. He argues that he properly “claimed” these costs—including the attorney fees—by serving his memorandum of post-judgment costs on August 6 and filing it on August 7 and/or 22, prior to receiving Hofferth’s funds on September 4. He argues that the relevant date for partial satisfaction was September 4, not August 8, under section 724.010, subdivision (b).

a. Filing of the memorandum of post-judgment costs

Section 685.070, subdivision (b) provides, “Before the judgment is fully satisfied … the judgment creditor claiming costs under this section shall file a memorandum of costs with the court clerk and serve a copy on the judgment debtor.” Accordingly, Leonardo’s service of his memorandum of post-judgment costs on August 6 was insufficient to perfect his claim for post-judgment costs. He was also required to file the memorandum before Hofferth fully satisfied the judgment.

The record does not support Leonardo’s claim that he filed his memorandum of post-judgment costs on August 7. He obtained no conformed copy dated August 7, and never obtained an order filing it nunc pro tunc as of August 7. Indeed, before the trial court ruled upon Hofferth’s motions, Leonardo never filed a motion to file the cost memorandum nunc pro tunc, as required by California Rules of Court, rule 2.304(d) where an attempt to file a document by fax has been unsuccessful. In addition, as noted by the trial court, Leonardo’s memorandum of costs did not comply with the fax filing rules, as the face of the memorandum did not indicate it was filed “by fax.” (Cal. Rules of Court, rule 2.304(c).)

Leonardo premises his claim that the memorandum of post-judgment costs was filed on August 7 upon statements in the trial court’s written tentative ruling on Hofferth’s motions. The tentative ruling stated, “Thus, defendant has established that he sent a three page document to the Court at 5:23 p.m. on August 6, 2007, that on August 7, 2007, the court charged him $3.00 and that this charge related to a two page cost memo fax filed in this case. Although Defendant has not been unable [sic] to prove which cost memo he faxed to the court (he references the July 17th memo in his Opposition to the motion to compel acknowledgment, and references the August 6th memo in his communications with the court clerk), the court presumes it is the latter dated version and will order that it be filed as of August 7, 2007, nunc pro tunc.”

In its actual ruling, however, the court found that Leonardo had not filed his memorandum of costs on August 7. The court stated, “While defendant has had various ex parte communications with the court clerk to support his claim that he fax filed the Memorandum of Costs on August 6, 2007, plaintiff correctly argues that, in the absence of a conformed copy, defendant is required to file a motion.” The court quoted California Rules of Court, rule 2.304(d), then noted, “Defendant has not filed the requisite motion and consequently, he is unable to establish that he filed his memorandum of costs prior to the satisfaction of the judgment,” which the court found occurred on August 8.

Only the court’s actual ruling was legally effective. The tentative ruling was, at most, a preliminary reflection of the court’s thinking prior to the hearing on the motions. It had no binding effect upon the court, which was free to change its mind about the result, the rationale, or both. The trial court did not, as Leonardo argues, abuse its discretion by changing its mind. Leonardo’s reliance upon the tentative ruling is inappropriate and unavailing, as is his reliance upon a court clerk’s promise to file the memorandum with an August 7 date. As the trial court noted in its November 5 ruling granting Hofferth’s second motion to tax costs, “[T]he clerk had no authority to back date a filing ….”

Accordingly, the record establishes that the memorandum of post-judgment costs was not filed until August 22.

b. Satisfaction of the judgment

Leonardo relies upon section 724.010, subdivision (b) to argue that the date he received payment from the sheriff —not the date Hofferth paid the sheriff—was the operative date for determining whether Hofferth satisfied the judgment before his memorandum of post-judgment costs was filed. Section 724.010 provides as follows:

“(a) A money judgment may be satisfied by payment of the full amount required to satisfy the judgment or by acceptance by the judgment creditor of a lesser sum in full satisfaction of the judgment.

“(b) Where a money judgment is satisfied by levy, the obligation of the judgment creditor to give or file an acknowledgment of satisfaction arises only when the judgment creditor has received the full amount required to satisfy the judgment from the levying officer.

“(c) Where a money judgment is satisfied by payment to the judgment creditor by check or other form of noncash payment that is to be honored upon presentation by the judgment creditor for payment, the obligation of the judgment creditor to give or file an acknowledgment of satisfaction of judgment arises only when the check or other form of noncash payment has actually been honored upon presentation for payment.”

The applicability of section 724.010, subdivision (b) is subject to some doubt, as the judgment against Hofferth was only partially satisfied by levy, with the bulk paid directly by Hofferth to the levying officer. Assuming, for the sake of argument, that subdivision (b) applies, it does not support Leonardo’s argument regarding the date of satisfaction. Subdivision (b) simply delayed Leonardo’s “obligation … to give or file an acknowledgment of satisfaction” until his actual receipt of funds from the sheriff. The obvious intent of section 724.010, subdivisions (b) and (c) is to permit the creditor to delay providing the acknowledgment of satisfaction until it is certain that the debtor has actually satisfied the judgment where the means of satisfaction entails potential delay. Neither subdivision (b) nor (c) purports to establish what constitutes satisfaction, which is instead addressed by subdivision (a) of section 724.010.

Section 724.010, subdivision (a) supports the trial court’s finding that Hofferth satisfied the judgment on August 8 when she paid the sheriff the entire amount owed under the writ of execution, which included interest through that date and $40 in costs. This constituted “payment of the full amount required to satisfy the judgment.” Subdivision (a) merely requires “payment,” not receipt of the funds by the judgment creditor. Although Leonardo had apparently incurred additional costs prior to Hofferth’s payment to the sheriff on August 8, the costs were not included in the writ of execution. Because Leonardo had not filed his memorandum of post-judgment costs by August 8 and never obtained an order for filing it nunc pro tunc as of August 7, he had not properly claimed these costs “[b]efore the judgment [was] fully satisfied,” as required by section 685.070, subdivision (b). Hofferth was therefore not obligated to pay Leonardo’s post-judgment costs. By the time Leonardo filed his memorandum of post-judgment costs on August 22, the judgment had already been fully satisfied, and it was too late to claim his costs under section 685.070. The trial court therefore did not abuse its discretion by granting Hofferth’s motions to tax Leonardo’s costs. (Lubetzky v. Friedman (1991) 228 Cal.App.3d 35, 39.)

We need not address Hofferth’s contention, based upon section 685.030, subdivision (d), that the judgment was satisfied by her August 6 tender. Section 685.030 addresses the date upon which interest stops accruing. Subdivision (d) expressly provides that it defines “the date a money judgment is satisfied” “[f]or the purposes of subdivisions (b) and (c),” which address only “when interest ceases to accrue.”

Section 724.050, subdivision (a) provides that when “a money judgment has been satisfied, the judgment debtor … may serve personally or by mail on the judgment creditor a demand in writing that the judgment creditor do one or both of the following: [¶] (1) File an acknowledgment of satisfaction of judgment with the court. [¶] (2) Execute, acknowledge, and deliver an acknowledgment of satisfaction of judgment to the person who made the demand.” Subdivision (b) specifies language that must be included in such a demand. Subdivision (c) requires the judgment creditor to comply with the demand no later than 15 days after receiving it, if the judgment has been satisfied. If the judgment creditor does not comply with the demand within the time allotted, the judgment debtor “may apply to the court on noticed motion for an order requiring the judgment creditor to comply with the demand. … If the court determines that the judgment has been satisfied and that the judgment creditor has not complied with the demand, the court shall either (1) order the judgment creditor to comply with the demand or (2) order the court clerk to enter satisfaction of the judgment.” (§724.050, subd. (d).)

Leonardo’s obligation to file or give Hofferth an acknowledgment of satisfaction of the judgment arose upon his receipt of payment from the sheriff on September 4. (§ 724.010, subd. (b).) Accordingly, Hofferth’s August 13 letter demanding an acknowledgment and her ensuing motion were arguably premature. However, the hearing on Hofferth’s motion to compel an acknowledgment was not held until September 25—three weeks after Leonardo’s obligation to file or give an acknowledgment arose. The court delayed ruling upon the motion an additional six days. There is no reasonable possibility that, with additional time, Leonardo would have deviated from his firmly and consistently held position that Hofferth’s payment to the sheriff did not constitute full satisfaction of the judgment. Furthermore, the court did not award any sanctions against Leonardo. (§ 724.050, subd. (e).) Leonardo was therefore not prejudiced by Hofferth’s arguably premature demand and motion. (Quintana v. Gibson (2003) 113 Cal.App.4th 89, 96 [judgment creditor suffered no prejudice from judgment debtor’s failure to comply with the demand requirements of section 724.050, subdivisions (a) and (b) before moving for an order for entry of satisfaction of judgment].) The trial court’s ruling granting Hofferth’s motion to compel an acknowledgment of satisfaction was not premature, was supported by substantial evidence, and complied with section 724.050, subdivision (d). The court determined that the judgment had been satisfied and that Leonardo had not complied with Hofferth’s demand that he file or give her an acknowledgment of satisfaction. There exists no legal or factual basis for disturbing this ruling.

2. Leonardo’s ex parte application for filing and reconsideration

Leonardo contends the trial court abused its discretion in denying his ex parte application for an order deeming the memorandum of post-judgment costs to have been filed on August 7. He argues that the court had a duty to correct the clerk’s error in losing the memorandum by ordering its nunc pro tunc filing.

California Rules of Court, rule 2.304(d) provides that if a “document transmitted to the court by fax machine is not filed with the court because of (1) an error in the transmission of the document to the court that was unknown to the sending party or (2) a failure to process the document after it has been received by the court, the sending party may move the court for an order filing the document nunc pro tunc.” Rule 2.304(d) does not mention the use of ex parte application for relief. Generally, a properly noticed motion must be used whenever the order sought may affect the rights of an adverse party. (St. Paul Fire & Marine Ins. Co. v. Superior Court (1984) 156 Cal.App.3d 82, 85.) “[A] statute silent on the question should not be interpreted as authorizing an ex parte application for an order.” (Ibid.) Moreover, California Rules of Court, rule 3.1300 requires all motions to be served and filed in accordance with section 1005 “unless otherwise ordered or specifically provided by law.” Because the nunc pro tunc filing of the memorandum of costs would affect Hofferth’s rights by potentially requiring her to pay several thousand dollars more in costs, an ex parte application for relief under rule 2.304(d) was impermissible.

In addition, an ex parte application must be supported by “a declaration containing competent testimony based on personal knowledge of irreparable harm, immediate danger, or any other statutory basis for granting relief ex parte.” (Cal. Rules of Court, rule 3.1202(c).) Leonardo’s ex parte application did not satisfy this requirement. Nothing in the supporting declarations mentioned any matter that could be considered irreparable harm, immediate danger, or any statutory basis for dispensing with proper notice. In short, as the trial court found, “I don’t believe that there is any emergency other than your delay in bringing the motion.” Similarly, Leonardo did not show any cause supporting his alternative request to shorten time for a noticed motion.

Leonardo’s ex parte application also sought reconsideration of the trial court’s orders granting Hofferth’s motions, yet it was not based on new or different facts, circumstances, or law that could not have been presented when the trial court heard Hofferth’s motions on September 25. (Morris v. Agfa Corp. (2006) 144 Cal.App.4th 1452, 1460; New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 212.) Although Leonardo attached some new items to his ex parte application, such as a transcript of a telephone message from the court clerk, he provided no explanation for the failure to produce the evidence at an earlier time. Leonardo asserted that the message was left on September 20, so he clearly could have brought this information to the court’s attention at the September 25 hearing on Hofferth’s motions. His failure to do so or provide a satisfactory explanation for his failure to do so warranted denial of his reconsideration motion.

For all of these reasons, we conclude that Leonardo’s ex parte application was an improper means of seeking reconsideration and relief under California Rules of Court, rule 2.304(d). The trial court did not abuse its discretion by denying the ex parte application, and Leonardo never made a noticed motion seeking the same relief.

Given our conclusions on the propriety of the court’s rulings, we need not address Leonardo’s contention that his post-judgment attorney fees were not excessive.

DISPOSITION

The judgment is affirmed. Respondent is awarded her costs on appeal.

We concur: MALLANO, P. J., ROTHSCHILD, J.


Summaries of

Hofferth v. Leonardo

California Court of Appeals, Second District, First Division
Sep 25, 2008
No. B203496 (Cal. Ct. App. Sep. 25, 2008)
Case details for

Hofferth v. Leonardo

Case Details

Full title:MEGAN HOFFERTH, Plaintiff and Respondent, v. MARK J. LEONARDO, Defendant…

Court:California Court of Appeals, Second District, First Division

Date published: Sep 25, 2008

Citations

No. B203496 (Cal. Ct. App. Sep. 25, 2008)