BANK OF THE WEST, A CALIFORNIA CORPORATION VS ROY CARRERA

Tentative Rulings

Case Number: BC405219    Hearing Date: January 28, 2020    Dept: 47

Bank of the West v. Roy Cabrera, et al.

MOTION FOR ORDER FOR APPROVAL OF COSTS AND ATTORNEY FEES

MOVING PARTY: Assignee Baseline Financial Services

RESPONDING PARTY(S): No response on eCourt as of January 24, 2020.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiff Bank of the West alleged that Defendant breached a motor vehicle contract that was assigned to it, under which Defendant was to pay $465.59/month for 239 months, beginning on June 16, 2007. Defendant allegedly defaulted on July 16, 2008. On April 1, 2009, default was entered against Defendant, and judgment was entered on July 23, 2009. On January 21, 2015, an assignment of judgment was filed, indicating that the right to collect the judgment has been assigned from Bank of the West to Baseline Financial Services.

Assignee Baseline Financial Services seeks approval of its costs and attorney’s fees.

TENTATIVE RULING:

Assignee Baseline Financial Services’ motion for order for approval of costs and attorney fees is DENIED.

DISCUSSION:

Motion for Approval of Costs and Attorney Fees

Assignee moves for an award of attorney’s fees and costs under CCP §§ 1032(a)(4) and 1033.5(a)(10)(A) against Defendant Roy Cabrera.

CCP § 1032(a)(4) defines “prevailing party” for the purpose of recovery of costs under CCP § 1032(b) by the prevailing party. Pursuant to that section, the “prevailing party” includes “the party with a net monetary recovery.” (CCP § 1032(a)(4).) Here, that party was Bank of the West, which recovered $63,321.31 against Defendant on July 23, 2009, with the notice of entry of judgment filed on August 3, 2009.

CCP § 1032 does not specify that an assignee may be considered a “prevailing party” for purposes of an award of fees or costs, and the Assignee here has not cited any authority for that proposition. CCP § 1032 does state that “in situations other than as specified, the ‘prevailing party’ shall be as determined by the court,” in which case the Court, “in its discretion, may allow costs or not,” but the Assignee here has not relied on that language to support its request.

Even more problematic, however, is the lack of a basis for the award of fees. CCP § 1033.5(a)(10)(A), cited by the Assignee, provides that attorney’s fees are allowable under § 1032 when authorized by contract. Here, however, assignee has not submitted any contract authorizing its recovery of attorney’s fees. Thus, assignee has not shown any basis on which it is entitled to recover its fees. A judgment creditor may recover costs incurred in enforcing a judgment under CCP § 685.040 under certain circumstances, but the Assignee has not relied on that statute as the basis for its motion.

Accordingly, Assignee’s motion for approval of costs and attorney fees is DENIED.

Assignee to give notice, unless waived.

IT IS SO ORDERED.

Dated: January 28, 2020 ___________________________________

Randolph M. Hammock

Judge of the Superior Court

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org