SOCAL LIEN SOLUTIONS, LLC VS CHARLENE MONCRIEF, ET AL.

Tentative Rulings

Case Number: 18STLC13007    Hearing Date: September 23, 2020    Dept: 26

SoCal Lien Solutions, LLC v. Moncrief, et al

MOTION FOR SANCTIONS

(CCP §§ 708.110, 708.150, 708.170, 680.230, and 680.270)

TENTATIVE RULING:

Defendants Charlene Moncrief and Zachary Moncrief’s Motion for Sanctions and Attorney’s Fees is GRANTED IN THE AMOUNT OF $4,125.00.

ANALYSIS:

On October 15, 2018, Plaintiff Socal Lien Solutions, LLC (“Plaintiff”) filed this action for goods and services rendered against Defendants Charlene Moncrief and Zachary Moncrief (“Defendants”). Plaintiff is an assignee to an assignor who allegedly provided labor, materials, and services to Defendants’ real property. (Compl. ¶¶ 7, 10.) On December 13, 2018, the Court granted Defendants’ motion to compel arbitration and awarded Defendants attorney’s fees of $2,000.00. (Minute Order, 12/13/18.) On May 28, 2019, Plaintiff dismissed the action without prejudice.

Defendants filed an Application and Order for Appearance and Examination whereby Plaintiff was ordered to appear on September 10, 2019. Following Plaintiff’s failure to appear at the Examination, Defendants filed the instant Motion for Sanctions on February 18, 2020. Plaintiff filed an opposition on February 27, 2020 and Defendants replied on March 4, 2020

Discussion

Initially, the Court sustains Defendants’ evidentiary objection to the exhibit attached to Plaintiff’s opposition evidence. The exhibit is not authenticated by any supporting declaration. (See Cal. Evid. Code § 1400.) The Court declines to rule on Plaintiff’s objections to statements in the opposition brief, however. It is axiomatic that evidentiary objections must be made to evidence, not argument.

Defendants move for sanctions against Plaintiff for failure to appear at the September 10, 2019 judgment debtor examination under Code of Civil Procedure section 708.170, which provides:

(a) If an order requiring a person to appear for an examination was served by a sheriff, marshal, a person specially appointed by the court in the order, or a registered process server, and the person fails to appear:

. . .

(2) If the person’s failure to appear is without good cause, the judgment creditor shall be awarded reasonable attorney's fees incurred in the examination proceeding. Attorney's fees awarded against the judgment debtor shall be added to and become part of the principal amount of the judgment.

(Code Civ. Proc., § 708.170, subd. (a)(2).) It is undisputed that Plaintiff failed to appear for the Examination on September 10, 2019. No good cause for Plaintiff’s non-appearance exists in the record. The Application and Order for Appearance and Examination was served on Plaintiff by registered process server specially appointed by the Court in the order. (Motion, LaPedis Decl., ¶6 and Exh. C.)

In opposition, Plaintiff argues that it failed to appear for the Examination because it was a suspended corporation from on or about July 18, 2019 until December 3, 2019 and therefore precluded from participating in litigation. (Opp., p. 1:24-26.) For the reasons discussed above, no competent evidence supports Plaintiff’s contention that it was a suspended corporation on the date of the Examination.

As required by Code of Civil Procedure section 708.110, subdivision (e), the Order for Examination warns the judgment debtor that it may be subject to sanctions for failure to appear. (Motion, LePedis Decl., Exh. C.) Defendants are entitled to an award of sanctions in the amount of $1,500.00 based on defense counsel’s reasonable hourly rate of $375.00 for the four hours spent preparing the Application for Order for Appearance and Examination, and preparing for and appearing at the Examination. (Id. at ¶¶12-13.)

Defendants also request an award for attorney’s fees for bringing the instant Motion. “Attorney's fees incurred in enforcing a judgment are included as costs collectible … if the underlying judgment includes an award of attorney's fees to the judgment creditor . . . .” (Code Civ. Proc., § 685.040.) The order granting Defendants’ petition to compel arbitration awarded attorney’s fees, thereby entitling them to recovery of attorney’s fees to enforce the judgment. (Order Granting Petition to Compel Binding Arbitration, 2/15/19, ¶5.) Based on a lodestar calculation, attorney’s fees are awarded in the amount of $2,625.00 based on seven hours of defense counsel’s time. (Motion, LePedis Decl., ¶6.)

Finally, as to Defendants’ request that the Court order Plaintiff to pay the judgment and the above awarded fees within 14 days, no authority is cited for such an order, which the Court declines to make.

Conclusion

Defendants Charlene Moncrief and Zachary Moncrief’s Motion for Sanctions and Attorney’s Fees is GRANTED IN THE AMOUNT OF $4,125.00.

Moving party to give notice.

Case Number: 18STLC13007    Hearing Date: March 11, 2020    Dept: 26

MOTION FOR SANCTIONS

(CCP § 708.170)

TENTATIVE RULING:   

On the Court’s own motion, Defendants Charlene Moncrief and Zachary Moncrief’s Motion for Sanctions is CONTINUED TO MAY 13, 2020 AT 10:30 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE. NO FURTHER BRIEFING PERMITTED.

Court clerk to give notice.