Search

Attributes

This case was last updated from Los Angeles County Superior Courts on 06/21/2019 at 07:15:22 (UTC).

DAVID MICKELSON VS ROBERT C ROSEN ET AL

Case Summary

On 01/08/2015 DAVID MICKELSON filed a Contract - Professional Negligence lawsuit against ROBERT C ROSEN. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are DALILA CORRAL LYONS, MALCOLM MACKEY and EDWARD B. MORETON. The case status is Disposed - Dismissed.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****8928

  • Filing Date:

    01/08/2015

  • Case Status:

    Disposed - Dismissed

  • Case Type:

    Contract - Professional Negligence

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

DALILA CORRAL LYONS

MALCOLM MACKEY

EDWARD B. MORETON

 

Party Details

Plaintiff and Petitioner

MICKELSON DAVID

Defendants and Respondents

DOES 1 THROUGH 10

ROSEN & ASSOCIATES P.C.

ROSEN ROBERT C.

WALLACE JOHN B.

Attorney/Law Firm Details

Plaintiff and Petitioner Attorney

BEITCHMAN & ZEKIAN P.C.

Defendant and Respondent Attorneys

ROSEN ROBERT C. ESQ.

ROSEN & ASSOCIATES P.C.

WINGET SPADAFORA & SCHWARTZBERG LLP

 

Court Documents

NOTICE OF LODGEMENT OF: 1. [PROPOSED] ORDER RE ENTRY OF JUDGMENT [ETC];

2/28/2018: NOTICE OF LODGEMENT OF: 1. [PROPOSED] ORDER RE ENTRY OF JUDGMENT [ETC];

AFFIDAVIT OF IDENTITY AND ORDER

4/27/2018: AFFIDAVIT OF IDENTITY AND ORDER

Unknown

6/18/2018: Unknown

Minute Order

11/16/2018: Minute Order

SUMMONS

1/8/2015: SUMMONS

PROOF OF SERVICE SUMMONS

1/28/2015: PROOF OF SERVICE SUMMONS

NOTICE OF RULING AT ADR STATUS CONFERENCE

6/8/2015: NOTICE OF RULING AT ADR STATUS CONFERENCE

PLAINTIFF'S ADR STATUS REPORT

8/17/2015: PLAINTIFF'S ADR STATUS REPORT

DEFENDANTS' SUBMISSION RE POST-ADR STATUS CONFERENCE; DECLARATION; EXHIBITS

8/26/2015: DEFENDANTS' SUBMISSION RE POST-ADR STATUS CONFERENCE; DECLARATION; EXHIBITS

Minute Order

8/28/2015: Minute Order

Minute Order

11/3/2015: Minute Order

DECLARATION OF JOHN B. WALLACE IN SUPPORT OF MOTION FOR ORDER ISSUING APPROPRIATE RELIEF ARISING FROM PLAINTIFF?S FAILURE TO PAY ARBITRATION FEES [C.C.P ? 1284.2; 1292; 1293] INCLUDING (A) COMPELLING

8/3/2016: DECLARATION OF JOHN B. WALLACE IN SUPPORT OF MOTION FOR ORDER ISSUING APPROPRIATE RELIEF ARISING FROM PLAINTIFF?S FAILURE TO PAY ARBITRATION FEES [C.C.P ? 1284.2; 1292; 1293] INCLUDING (A) COMPELLING

DECLARATION OF DAVID MAURER IN SUPPORT OF EX PARTE APPLICATION FOR ORDER SHORTENING TIME TO HEAR MOTION FOR ORDER ISSUING APPROPRIATE RELIEF ARISING FROM PLAINTIFF'S FAILURE TO PAY ARBITRATION FEES, E

8/4/2016: DECLARATION OF DAVID MAURER IN SUPPORT OF EX PARTE APPLICATION FOR ORDER SHORTENING TIME TO HEAR MOTION FOR ORDER ISSUING APPROPRIATE RELIEF ARISING FROM PLAINTIFF'S FAILURE TO PAY ARBITRATION FEES, E

ORDER GRANTING EX PARTE APPLICATION FOR AN ORDER SHORTENING TIME TO HEAR THE MOTION FOR ORDER ISSUING APPROPRIATE RELIEF ARISING FROM PLAINTIFF'S FAILURE TO PAY ARBITRATION FEES INCLUDING (A) COMPELLI

8/4/2016: ORDER GRANTING EX PARTE APPLICATION FOR AN ORDER SHORTENING TIME TO HEAR THE MOTION FOR ORDER ISSUING APPROPRIATE RELIEF ARISING FROM PLAINTIFF'S FAILURE TO PAY ARBITRATION FEES INCLUDING (A) COMPELLI

NOTICE OF ASSOCIATION OF COUNSEL

8/4/2016: NOTICE OF ASSOCIATION OF COUNSEL

DAVID MICKELSON'S NOTICE OF MOTION AND MOTION TO DISQUALIFY ARBITRATOR AND APPOINT A NEW ARBITRATOR AND/OR ARBITRATION FORUM; MEMORANDUM OF POINTS AND AUTHORITIES AND DECLARATION OF ANDRE BONIADI IN S

8/11/2016: DAVID MICKELSON'S NOTICE OF MOTION AND MOTION TO DISQUALIFY ARBITRATOR AND APPOINT A NEW ARBITRATOR AND/OR ARBITRATION FORUM; MEMORANDUM OF POINTS AND AUTHORITIES AND DECLARATION OF ANDRE BONIADI IN S

DEFENDANTS' OPPOSITION TO DAVID MICKELSON'S MOTION TO DISQUALIFY ARBITRATOR AND APPOINT A NEW ARBITRATOR AND/OR ARBITRATION FORUM

8/22/2016: DEFENDANTS' OPPOSITION TO DAVID MICKELSON'S MOTION TO DISQUALIFY ARBITRATOR AND APPOINT A NEW ARBITRATOR AND/OR ARBITRATION FORUM

NOTICE OF FILING PROOF OF SERVICE - PERSONAL [VERIFIED PETITION]

12/14/2017: NOTICE OF FILING PROOF OF SERVICE - PERSONAL [VERIFIED PETITION]

69 More Documents Available

 

Docket Entries

  • 01/14/2019
  • Writ - Return

    Read MoreRead Less
  • 12/20/2018
  • at 09:30 AM in Department 44, Edward B. Moreton, Presiding; Hearing on Motion - Other

    Read MoreRead Less
  • 11/16/2018
  • at 08:30 AM in Department 44, Edward B. Moreton, Presiding; Hearing on Application for Order for Appearance and Examination - Held

    Read MoreRead Less
  • 11/16/2018
  • Minute Order ((Hearing on Application for Order for Appearance and Examinati...)); Filed by Clerk

    Read MoreRead Less
  • 09/27/2018
  • AFFIDAVIT OF IDENTITY AND ORDER

    Read MoreRead Less
  • 09/27/2018
  • Affidavit ; Filed by Creditor

    Read MoreRead Less
  • 09/12/2018
  • at 08:30 AM in Department 44; Hearing on Application for Order for Appearance and Examination (Judgment Debtor Examination Hrng; Debtor Failed to Appear) -

    Read MoreRead Less
  • 09/12/2018
  • Minute Order

    Read MoreRead Less
  • 09/12/2018
  • NOTICE OF SECOND CONTINUANCE OF JUDGMENT DEBTOR EXAMINATION OF DAVID MICKELSON

    Read MoreRead Less
  • 09/12/2018
  • Notice; Filed by Creditor

    Read MoreRead Less
157 More Docket Entries
  • 01/28/2015
  • Proof-Service/Summons; Filed by David Mickelson (Plaintiff)

    Read MoreRead Less
  • 01/28/2015
  • PROOF OF SERVICE SUMMONS

    Read MoreRead Less
  • 01/28/2015
  • Proof-Service/Summons; Filed by David Mickelson (Plaintiff)

    Read MoreRead Less
  • 01/28/2015
  • PROOF OF SERVICE SUMMONS

    Read MoreRead Less
  • 01/28/2015
  • Proof-Service/Summons; Filed by David Mickelson (Plaintiff)

    Read MoreRead Less
  • 01/28/2015
  • PROOF OF SERVICE SUMMONS

    Read MoreRead Less
  • 01/08/2015
  • SUMMONS

    Read MoreRead Less
  • 01/08/2015
  • Complaint; Filed by David Mickelson (Plaintiff)

    Read MoreRead Less
  • 01/08/2015
  • COMPLAINT FOR PROFESSIONAL NEGLIGENCE

    Read MoreRead Less
  • 01/11/1981
  • Notice; Filed by Robert C. Rosen (Defendant); John B. Wallace (Defendant); Rosen & Associates, P.C. (Defendant)

    Read MoreRead Less

Tentative Rulings

Case Number: BC568928    Hearing Date: August 14, 2020    Dept: 20

Tentative Ruling

Judge David J. Cowan

Department 20


Date: Friday, August 14, 2020

Case Name: David Mickelson v. Robert C. Rosen et al.

Case No.: BC568928

Motions: Amend Judgment

Moving Party: Defendant Rosen

Responding Party: Plaintiff Mickelson

Notice: OK


Ruling: The Motion is GRANTED IN PART as to postjudgment attorney’s fees, costs, and interest. The Motion is DENIED IN PART as to prejudgment attorney’s fees.

The Court amends the judgment to add postjudgment attorney’s fees in the amount of $358,053, postjudgment costs of $11,905, and $295,851.82 in postjudgment interest to the current $1,494,966 judgment. The amended judgment is for $2,160,775.82.

Plaintiff to give notice.

If counsel do not submit on the tentative, they are strongly encouraged to appear by LA Court Connect rather than in person in view of the COVID-19 pandemic.


 

BACKGROUND

On January 8, 2015, Plaintiff David Mickelson filed a Complaint for professional negligence against Defendants Robert C. Rosen, John B. Wallace, Rosen & Associates, P.C. (collectively “Rosen”) and unnamed Does arising out of Rosen’s representation of Mickelson.

On February 25, 2015, the parties stipulated to resolve their disputes in arbitration.

On November 3, 2015, the Court dismissed the action without prejudice while the parties participated in binding arbitration. The Court indicated the action would be dismissed without prejudice after completing arbitration.

On October 20, 2017, the parties conducted an arbitration hearing.

On November 1, 2017, the arbitrator awarded Rosen $1,494,966 against Mickelson.

On November 30, 2017, Rosen filed a Petition to Confirm Arbitration Award.

On April 18, 2018, the Court entered judgment confirming the arbitration award of $1,494,966 in favor of Rosen and against Mickelson, and further provided that “Petitioners shall recover from Respondent, and Respondent shall pay to Petitioners, post Judgment interest at the rate of 10% per year until paid.” The Court also provided that “Petitioners are entitled to recover from Respondent and Respondent shall pay to Petitioners, any attorneys fees and costs they incur in enforcement of this Judgment, under all applicable law, including Civil Code sec. 1717.”

On September 7, 2018, Rosen filed a fraudulent conveyance action against Mickelson and third parties, including entities controlled by Mickelson, in the San Diego Superior Court—this case is Rosen & Associates, P.C. v. Harvey Bookstein et al., case no. 37-2018-00045884-CU-OR-NC (the “San Diego Action”).

On November 26, 2019, the San Diego Court granted Rosen’s application for a temporary restraining order (TRO), finding “that Rosen’s Proffer, as set forth below, has a reasonable probability of success.”

On April 17, 2020, Rosen filed a Motion to Amend Judgment.

On June 10, 2020, this case was transferred from Department 44 to Department 20.

On August 3, 2020, Mickelson filed an Opposition.

On August 7, 2020, Rosen filed a Reply.

ANALYSIS

Rosen seeks to recover postjudgment fees and costs incurred between April 2018 and April 2020 here and in San Diego in enforcing the judgment against Mickelson, as well as fees and costs incurred before entry of judgment on April 18, 2018. The Judgment states that Rosen is “entitled to recover . . . any attorneys fees and costs they incur in enforcement of this Judgment, under all applicable law, including Civil Code sec. 1717.” CCP sec. 685.040 provides that a “judgment creditor is entitled to the reasonable and necessary costs of enforcing a judgment. Attorney's fees incurred in enforcing a judgment are not included in costs collectible under this title unless otherwise provided by law. Attorney's fees incurred in enforcing a judgment are included as costs collectible under this title 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.”[1]

Mickelson argues the postjudgment fees incurred in the fraudulent conveyance action cannot be recovered because (1) they were not necessary for enforcement of the judgment and (2) Rosen has not prevailed in that action. But the fraudulent transfer action appears reasonably necessary to enforce the judgment. The judgment has not been voluntarily paid and Mickelson appears to be taking action to avoid satisfying the judgment, including transferring his home to an offshore trust and failing to appear for debtor examinations. (Requiring the fraudulent transfer action to conclude before Rosen can seek fees would run afoul of the two-year time limit in CCP sec. 685.080, as delay caused by Mickelson in resolving the fraudulent transfer action would thereby limit Rosen’s recovery of fees beyond the last two years, a result that does not appear to be the intended result of the two-year limit.

Mickelson analogizes this case to Chinese Yellow Pages v. Chinese Overseas (2008) 170 Cal.App.4th 868, where the judgment creditor sought to recover post-judgment attorney fees incurred in a separate bankruptcy proceeding in order to enforce the judgment. The trial court “ruled that it lacked authority to award the fees as a matter of law” because they were incurred during the automatic bankruptcy stay. (Id. at 879.) The appellate court disagreed, holding that “nothing in the Bankruptcy Code prevented the trial court from ruling on the creditor's section 685.040 attorney fee and costs motion” (Id. at 885.) The court rejected the debtor’s argument that “nothing that occurred during the chapter 11 proceedings could support a finding that reasonable and necessary attorney [fees] were incurred within the meaning of section 685.040,” observing that the judgment debtor made a $1.12 million transfer to his sister-in-law and “failed to list these prepetition transfers on its [bankruptcy] schedules.” (Id. at 885) The creditor subsequently filed a claim in the bankruptcy proceeding to protect its interests, and the court indicated that generally “filing a claim in a chapter 11 proceeding would be recoverable in postproceeding section 685.040 attorney fee litigation.” (Id.)

Mickelson unpersuasively construes Chinese Yellow Pages as holding that postjudgment fees cannot be recovered unless there is “a finding of an improper transfer by the judgment debtor” and argues the fraudulent conveyance action is still pending, meaning there is no finding of an improper transfer. But the Chinese Yellow Pages court actually reversed the trial court for misconstruing the effect of an automatic bankruptcy stay on postjudgment fee recovery, finding the stay did not prevent recovery of fees. The court merely rejected the argument that there was no evidence the fees were reasonably incurred, noting evidence of a $1.12 million transfer. The fact that an improper transfer occurred was not the basis for reversing the trial court.

Here, there is prima facie evidence of an improper transfer based on the San Diego Court’s November 26, 2019 Order imposing a TRO, which indicates the action is (at least initially) likely to succeed against the third parties sued to prevent Mickelson’s conveyances. Since CCP sec. 685.040 does not require that the party seeking fees prevail in the underlying action, this prima facie evidence of success is sufficient to show the fees were reasonably incurred, and the action was obviously initiated to protect assets from transfers that would shield Mickelson from paying the judgment. (See Children’s Hospital v. Bonta (2002) 97 Cal.App.4th 740, 781 (awarding plaintiffs fees for litigating ancillary proceeding in which they did not prevail).) Moreover, CCP sec. 685.040 has no express requirement that a party prevail to recover fees for another proceeding; the Court is “not at liberty to narrow the statutory language ‘to make it conform to a presumed intention which is not expressed.’” (Cardinale v. Miller (2014) 222 Cal.App.4th 1020, 1026.)

This case is analogous to Conservatorship of McQueen (2014) 59 Cal.4th 602, where the Supreme Court found attorney fees expended in prosecuting a separate fraudulent transfer action “were expended in an effort to maintain assets in defendant's hands for potential satisfaction of the judgment in this case” and “therefore came within the scope of what could be claimed, in this case, under section 685.040.” (Id.at 613.) “Attorney fees incurred in one action may be considered necessary litigation costs in another.” (Globalist Internet Technologies, Inc. v. Reda (2008) 167 Cal.App.4th 1267, 1275.) Similarly here, the fees incurred in prosecuting the San Diego fraudulent conveyance action “were expended in an effort to maintain assets in defendant’s hands” instead of allowing Mickelson to transfer his home to an offshore trust, among other things. Mickelson has not voluntarily paid the judgment and attempted to protect his assets from the judgment—fees expended to prevent Mickelson from doing so were thus necessary for enforcement of the judgment. Therefore, the Court does not reduce the award for fees incurred prosecuting the San Diego action and awards attorney fees of $241,536.50 reasonably incurred over two years of (ongoing) litigation.

Mickelson argues fees incurred in the Los Angeles Action before April 2018 cannot be recovered under CCP sec. 685.080 due to the two-year time limit in that section applicable to postjudgment fees, observing that Rosen seeks $109,995.50 in fees incurred between November 22, 2017 and April 9, 2018. In response, Rosen argues these fees would be prejudgment fees not subject to CCP sec. 685.010 et seq. because judgment was entered on April 18, 2018. Rather, these prejudgment fees are subject to CCP sec. 1034. (See Conservatorship of McQueen (2014) 59 Cal.4th 602, 608 (“fees awarded for expenses incurred on appeal from the trial court judgment are not governed by the procedures of the Enforcement of Judgments Law. Rather, they are recovered under the procedures set forth in court rules promulgated pursuant to Code of Civil Procedure section 1034.”))

While the fee request is not timebarred by CCP sec. 685.080, it is nonetheless unclear to the Court why Rosen is only now seeking fees incurred between November 2017 and April 2018 when judgment was entered on April 18, 2018 and Rosen could have promptly sought these fees any time in the last two years. Rosen offers no explanation for the delay, merely arguing the request is subject to pre-judgment fee rules. CRC Rule 3.1702(b), which “applies in civil cases to claims for statutory attorney's fees and claims for attorney's fees provided for in a contract,” requires that a “motion to claim attorney's fees for services up to and including the rendition of judgment in the trial court . . . must be served and filed within the time for filing a notice of appeal.” Rule 3.1702 does not appear to condone Rosen’s delay in seeking pre-judgment fees. To put it another way, Rosen has not shown that his request for pre-judgment fees is timely under the applicable rules. As Rosen notes, the amount sought between November 2017 and April 2018 is actually $97,126.50 rather than $109,995.50. (Reply, p. 15, n. 18.) The Court therefore reduces the fees awarded by $97,126.50. The Court also notes Rosen accepted a reduction of $346.50 for May 15, 2019. Therefore, the Court reduces the fee award by $97,473.00.

Mickelson next argues that Rosen’s remaining fees incurred in the Los Angeles action after April 2018 should be reduced by 75% to account for block billing and inflated hours. However, the Reply offered a credible explanation for each apparently suspect billing instance identified by Mickelson; in any event, block billing is not inherently objectionable and reductions are within the Court’s discretion. (Christian Research Inst. v. Alnor (2008) 165 Cal.App.4th 1315.) In part in view of the substantial reduction above, and in part due to Mickelson’s failure to show that the total amount billed was in fact unreasonable for the tasks listed, the Court declines to impose a further reduction for block-billing alone.

The Court notes the postjudgment interest and costs calculations are not disputed—only the amount of the attorney’s fees. Thus, for the foregoing reasons, the Motion is GRANTED. The Court amends the judgment to add postjudgment attorney’s fees in the amount of $358,053, postjudgment costs of $11,905, and $295,851.82 in postjudgment interest to the current $1,494,966 judgment. The amended judgment is for $2,160,775.82.


[1] One “essential element specified in section 685.040 of recoverable reasonable and necessary fees is that the underlying judgment must include an award of attorney's fees pursuant to section 1033.5, subdivision (a)(10)(A),” which “permits the recovery of Civil Code section 1717 contractual attorney fees.” (Chinese Yellow Pages v. Chinese Overseas (2008) 170 Cal.App.4th 868, 888.) Here, the judgment provides for attorney’s fees pursuant to Civil Code sec. 1717, which is sufficient for recovery of fees incurred in enforcement. (Id.)

related-case-search

Dig Deeper

Get Deeper Insights on Court Cases


Latest cases where ROSEN & ASSOCIATES P.C. is a litigant