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This case was last updated from Los Angeles County Superior Courts on 09/01/2019 at 06:26:45 (UTC).

SECOND GENERATION INC VS KODY BRANCH OF CALIFORNIA INC ET AL

Case Summary

On 02/05/2016 SECOND GENERATION INC filed a Contract - Other Contract lawsuit against KODY BRANCH OF CALIFORNIA INC. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The case status is Disposed - Judgment Entered.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****9405

  • Filing Date:

    02/05/2016

  • Case Status:

    Disposed - Judgment Entered

  • Case Type:

    Contract - Other Contract

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

 

Party Details

Plaintiff and Petitioner

SECOND GENERATION INC.

Defendants and Respondents

TRINH VUONG GARMENT CO. LTD.

DOES 1 THROUGH 20

TRINH CATHY

KODY BRANCH OF CALIFORNIA INC.

KODY BRAND INC.

SEVEN-BROS ENTERPRISES INC

MKK ENTERPRISE CORP DOE 3

TRINH KEVIN DOE 6

TRINH TONY

BEN LYNN ENTERPRISE INC DOE 5

MELKO LOGISTIC GROUP CORP DOE 1

TRINH TONY DOE 7

BALDWIN SUN INC DOE 8

SIO LLC DOE 4

VIET MY EXPORT GARMENTS COMPANY DOE 2

Not Classified By Court

TEST PARTY FOR TRUST CONVERSION

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

VENABLE LLP

ROZANSKY DANIEL ADAM

BOREN DAVID HOWARD

Defendant and Respondent Attorneys

RESCH POLSTER & BERGER LLP

CABANDAY ORLANDO F. ESQ.

LIEBERMAN MARC ANDREW

COULSON DAWN M. ESQ.

TEPPER SCOTT JARED ESQ.

LANZA ANTHONY

KAUFLER PHILIP ESQ.

 

Court Documents

PLAINTIFF SECOND GENERATION, INC.'S OPPOSITION TO CATHY TRINH'S MOTION TO QUASH SERVICE OF SUMMONS FOR LACK OF PROPER SERVICE

7/6/2016: PLAINTIFF SECOND GENERATION, INC.'S OPPOSITION TO CATHY TRINH'S MOTION TO QUASH SERVICE OF SUMMONS FOR LACK OF PROPER SERVICE

APPLICATION FOR RIGHT TO ATTACH ORDER, TEMPORARY PROTECTIVE ORDER, ETC. (AFTAHMENT)

8/11/2016: APPLICATION FOR RIGHT TO ATTACH ORDER, TEMPORARY PROTECTIVE ORDER, ETC. (AFTAHMENT)

DECLARATION OF MICHAEL WETSBERG IN OPPOSITION TO DEFENDANT/CROSS-COMPLAINANT KODY BRANCH OF CALIFORNIA, INC.'S APPLICATION FOR RIGHT TO ATTACH ORDER AND ORDER FOR ISSUANCE OF WRIT OF ATTACHMENT

8/26/2016: DECLARATION OF MICHAEL WETSBERG IN OPPOSITION TO DEFENDANT/CROSS-COMPLAINANT KODY BRANCH OF CALIFORNIA, INC.'S APPLICATION FOR RIGHT TO ATTACH ORDER AND ORDER FOR ISSUANCE OF WRIT OF ATTACHMENT

NOTICE RE: ADVANCE OF HEARING

9/20/2016: NOTICE RE: ADVANCE OF HEARING

AMENDED DECLARATION IN SUPPORT OF ATTORNEYS MOTION TO BE RELIEVED AS COUNSEL?CIVIL

11/2/2016: AMENDED DECLARATION IN SUPPORT OF ATTORNEYS MOTION TO BE RELIEVED AS COUNSEL?CIVIL

PROOF OF SERVICE OF ORDER GRANTING ATTORNEY'S MOTION TO BE RELIEVED AS COUNSEL FOR KODY BRANCH OF CALIFORNIA, INC.

12/1/2016: PROOF OF SERVICE OF ORDER GRANTING ATTORNEY'S MOTION TO BE RELIEVED AS COUNSEL FOR KODY BRANCH OF CALIFORNIA, INC.

STIPULATION RE SERVICE OF SECOND AMENDED COMPLAINT AND ETC

12/22/2016: STIPULATION RE SERVICE OF SECOND AMENDED COMPLAINT AND ETC

DECLARATION OF CAROLINE ROCKY IN SUPPORT OF PLAINTIFF/CROSS-DEFENDANT SECOND GENERATION, INC.'S MOTION FOR SUMMARY ADJUDICATION ON ITS FIRST CAUSE OF ACTION FOR BREACH OF CONTRACT

7/13/2017: DECLARATION OF CAROLINE ROCKY IN SUPPORT OF PLAINTIFF/CROSS-DEFENDANT SECOND GENERATION, INC.'S MOTION FOR SUMMARY ADJUDICATION ON ITS FIRST CAUSE OF ACTION FOR BREACH OF CONTRACT

NOTICE OF CHANGE OF LAW FIRM NAME

7/19/2017: NOTICE OF CHANGE OF LAW FIRM NAME

DECLARATION OF ROBERT D. KULLMAN IN SUPPORT OF PLAINTIFF'S OPPOSITION TO MOTION TO DISQUALIFY DAVID H. BOREN AND THE LAW FIRM OF RITHOLZ LEVY FIELDS LLP

8/31/2017: DECLARATION OF ROBERT D. KULLMAN IN SUPPORT OF PLAINTIFF'S OPPOSITION TO MOTION TO DISQUALIFY DAVID H. BOREN AND THE LAW FIRM OF RITHOLZ LEVY FIELDS LLP

DECLARATION OF MINH TRINH ON BEHALF OF DEFENDANT KODY BRANCH OF CALLFORNIA

9/22/2017: DECLARATION OF MINH TRINH ON BEHALF OF DEFENDANT KODY BRANCH OF CALLFORNIA

APPLICATION FOR - RIGHT TO ATTACH ORDER - ORDER FOR ISSUANCE OF WRIT OF ATTACHMENT- AFTER HEARING

10/11/2017: APPLICATION FOR - RIGHT TO ATTACH ORDER - ORDER FOR ISSUANCE OF WRIT OF ATTACHMENT- AFTER HEARING

APPLICATION FOR RIGHT TO ATTACH ORDER, ORDER FOR ISSUANCE OF WRIT OF ATTACHMENT AFTER HEARING

10/12/2017: APPLICATION FOR RIGHT TO ATTACH ORDER, ORDER FOR ISSUANCE OF WRIT OF ATTACHMENT AFTER HEARING

PROOF OF SERVICE

10/12/2017: PROOF OF SERVICE

REQUEST FOR DISMISSAL

11/1/2017: REQUEST FOR DISMISSAL

Minute Order

11/7/2017: Minute Order

NOTICE OF MOTION AND MOTION FOR RECONSIDERATION OF DEFENDANTS CATHY TRINH, SEVEN-BROS ENTERPRISES, INC., TRINH VUONG, CO. LTD. AND KODY BRAND, INC. RE ORDER GRANTING SUMMARY ADJUDICATION BREACH OF CON

11/13/2017: NOTICE OF MOTION AND MOTION FOR RECONSIDERATION OF DEFENDANTS CATHY TRINH, SEVEN-BROS ENTERPRISES, INC., TRINH VUONG, CO. LTD. AND KODY BRAND, INC. RE ORDER GRANTING SUMMARY ADJUDICATION BREACH OF CON

Minute Order

12/11/2017: Minute Order

561 More Documents Available

 

Docket Entries

  • 10/03/2019
  • Hearingat 08:30 AM in Department 78 at 111 North Hill Street, Los Angeles, CA 90012; Hearing - Other (name extension)

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  • 12/07/2018
  • Docketat 08:30 AM in Department 78; (Status Hearing) - Held - Continued

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  • 12/07/2018
  • DocketMinute Order ((Legacy Event Type : Status Hearing)); Filed by Clerk

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  • 09/11/2018
  • DocketNOTICE OF STATUS HEARING

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  • 09/11/2018
  • DocketNotice of Hearing; Filed by Second Generation, Inc. (Plaintiff)

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  • 09/11/2018
  • DocketNotice; Filed by Tony Trinh (Defendant)

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  • 09/11/2018
  • DocketNOTICE OF WITHDRAWAL OF MOTION PREVIOUSLY CALENDARED FOR HEARING ON OCTOBER 25 2018;REQUEST TO CORRECT ONLINE CALENDAR

    Read MoreRead Less
  • 09/06/2018
  • Docketat 08:30 AM in Department 78; Unknown Event Type - Held - Continued

    Read MoreRead Less
  • 09/06/2018
  • DocketMinute Order

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  • 09/06/2018
  • DocketMinute order entered: 2018-09-06 00:00:00; Filed by Clerk

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1,152 More Docket Entries
  • 03/11/2016
  • DocketPROOF OF SERVICE OF SUMMONS

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  • 03/11/2016
  • DocketProof-Service/Summons; Filed by Second Generation, Inc. (Plaintiff)

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  • 03/08/2016
  • DocketNOTICE OF CASE MANAGEMENT CONFERENCE

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  • 03/08/2016
  • DocketNotice of Case Management Conference; Filed by Clerk

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  • 02/18/2016
  • DocketPROOF OF SERVICE SUMMONS

    Read MoreRead Less
  • 02/18/2016
  • DocketProof-Service/Summons; Filed by Second Generation, Inc. (Plaintiff)

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  • 02/05/2016
  • DocketComplaint; Filed by null

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  • 02/05/2016
  • DocketSUMMONS

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  • 02/05/2016
  • DocketCOMPLAINT FOR: 1. BREACH OF CONTRACT; ETC

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  • 01/01/1900
  • Docketat 08:32 AM in Department Legacy; Unknown event

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Tentative Rulings

Case Number: BC609405    Hearing Date: January 14, 2021    Dept: 78

Superior Court of California

County of Los Angeles

Department 78

SECOND GENERATION, INC.;

Plaintiff,

vs.

KODY BRANCH OF CALIFORNIA, et al.;

Defendants.

AND RELATED CROSS-ACTIONS

Case No.:

BC609405

Hearing Date:

January 14, 2021

[TENTATIVE] RULING RE:

Specially appearing proposed additional judgment debtors’ (“PAJDS”) motion to dismiss the pajds from the action BASED ON PROCEEDURAL OBJECTIONS

The Specially Appearing Judgment Debtors’ Motion to Dismiss Based on Procedural Objections is DENIED.

FACTUAL BACKGROUND

This is an action for breach of contract. The Complaint alleges as follows. Plaintiff Second Generation, Inc. (“SecGen”) is a women’s clothing and apparel design, sale, and wholesale distribution company who entered into an agreement on March 12, 2008 with Defendants Kody Branch of California, Inc., Kody Brand, Inc., and Trinh Vuong Garment Co. Ltd. (collectively, “Kody”). (Compl. ¶ 3-4.) Beginning 2014, after years of a successful relationship, SecGen placed a large production order with Kody, but Kody repeatedly failed to deliver the goods on time, causing SecGen to suffer monetary penalties, cancelled orders, and broken business relationships with retail customers. (Compl. ¶5-8.)

relevant procedural history

SecGen filed the Complaint on February 5, 2016, alleging five causes of action:

  1. Breach of contract

  2. Tortious interference with contract

  3. Intentional interference with prospective economic advantage

  4. Fraud

  5. Negligent misrepresentation

On June 24, 2016, Kody Branch filed a cross-complaint alleging four causes of action:

  1. Breach of contract

  2. Goods sold and delivered

  3. Open book account

  4. Account stated

On October 19, 2017, the Court granted SecGen’s Motion for Summary Adjudication of the First Cause of Action for breach of contract against Kody Branch of California, Inc., Seven-Bros Enterprises, Inc., Trinh Vuong Garment Co. Ltd., Cathy Trinh, and Kody Branch, Inc., jointly and severally (all Defendants are a single enterprise and/or alter egos of each other). The Court awarded liquidated damages in the total amount of $2,082,983.36.

On February 26, 2018, the Court entered an Order granting the Stipulation entered into between SecGen and Defendants, wherein: (1) SecGen dismissed the second, third, fourth, and fifth causes of action without prejudice; (2) Defendants withdrew their Motion to Dismiss; (3) Defendants withdrew their Motion for Reconsideration of the Court’s Order on the MSA; (4) without admitting liability, and with the Parties expressly agreeing the Defendants are not the prevailing party for purposes of the cross-complaint, SecGen gave Defendants a $30,000 credit for the Cross-Complaint; (5) all parties preserved rights of appeal.

On April 6, 2018, Judge Shaller entered the following judgment in this case: “Judgment granted in favor of SecGen. SecGen was the prevailing party, recovering damages of $2,082,983.36. SecGen also to recover prejudgment interest of $615,946.88, plus $584.64 per day thereafter in interest. SecGen also to recover cost of $16,527.28 plus interest at 10% per annum, and attorneys’ fees of $752,383.78, plus interest at 10% per annum.”

Defendants appealed.

On November 19, 2019, the Court received the remittitur from the Court of Appeal, affirming the judgment of the Court.

On August 3, 2020, the Court granted SecGen’s Motion for Attorneys’ Fees.

On October 26, 2020, SecGen filed the its Motion to Amend Judgment to add additional entities based on an alter ego theory.

On November 4, 2020, the Specially Appearing Proposed Judgment Debtors who SecGen proposed added to the judgment (“PAJDS”) filed an Ex Parte Application for an Order Permitting them to File and Have Heard a Motion Asserting Procedural Challenges to the Previously Withdrawn and Refiled Motion by Plaintiff to Add Additional Judgment Debtors.

On November 5, 2020 and November 9, 2020 the Court granted this application, setting January 14, 2021 as the date for hearing on the Procedural Objections and March 22, 2021 for a hearing on the substantive issues raised by the Judgment Debtor’s Motion to Amend Judgment.

On December 17, 2020, the PAJDS filed the instant Motion to Dismiss SecGen’s Motion to Amend Judgment.

On December 30, 2020, SecGen filed an Opposition.

On January 8, 2021, the PAJDS filed a Reply.

DISCUSSION

  1. REQUEST FOR JUDICIAL NOTICE

The court may take judicial notice of “[r]ecords of (1) any court of this state or (2) any court of record of the United States or of any state of the United States.” (Evid. Code § 452.) SecGen has filed a request for judicial notice of exhibits A through M attached to the request. Each of these documents is appropriate and judicial notice is taken thereof

  1. OBJECTIONS

The PAJDS have filed objections to the declaration of Michael J Weissberg. Those objections are overruled.

  1. MOTION

The PAJDS assert that the exclusive means of adding the PADJS to the judgment is to proceed under Code of Civil Procedure §§ 989- 994. Attempting to add the PAJDS to the judgment by bringing a motion under Code of Civil Procedure §187, according to the PAJDS, is not appropriate. The PAJDS argue that this is because §187 only applies “if the course of proceeding be not specifically pointed out by this code or the statute.” But as the Court of Appeal recently held in Triyar Hospitality Management, LLC v. WSA (II)—HWP, LLC , (2020) 57 Cal. App. 5th 636, 641: “The authority provided to the courts by Code of Civil Procedure section 187 includes the power to add a judgment debtor where a person or entity is the alter ego of the original judgment debtor.” And as the Court explained in Hall, Goodhue, Haisley & Barker, Inc. (1996) 41 Cal. App. 4th 1551, 1554-5:

“Under section 187, the trial court is authorized to amend a judgment to add additional judgment debtors. (NEC Electronics, Inc. v. Hurt (1989) 208 Cal.App.3d 772, 778, 256 Cal.Rptr. 441; Dow Jones Co. v. Avenel (1984) 151 Cal.App.3d 144, 148, 198 Cal.Rptr. 457.) As a general rule, “a court may amend its judgment at any time so that the judgment will properly designate the real defendants.” (Dow Jones Co. v. Avenel, supra, 151 Cal.App.3d at p. 149, 198 Cal.Rptr. 457, quoting Alexander v. Abbey of the Chimes (1980) 104 Cal.App.3d 39, 45, 163 Cal.Rptr. 377.) Judgments may be amended to add additional judgment debtors on the ground that a person or entity is the alter ego of the original judgment debtor. (Carr v. Barnabey's Hotel Corp. (1994) 23 Cal.App.4th 14, 20–21, 28 Cal.Rptr.2d 127; NEC Electronics, Inc. v. Hurt, supra, 208 Cal.App.3d at p. 778, 256 Cal.Rptr. 441.) “Amendment of a judgment to add an alter ego is an equitable procedure based on the theory that the court is not amending the judgment to add a new defendant but is merely inserting the correct name of the real defendant. Such a procedure is an appropriate and complete method by which to bind new ... defendants where it can be demonstrated that in their capacity as alter ego of the corporation they in fact had control of the previous litigation, and thus were virtually represented in the lawsuit.” (Carr v. Barnabey's Hotel Corp., supra, 23 Cal.App.4th at pp. 21–22, 28 Cal.Rptr.2d 127, internal citations and quotations omitted.)”

The PAJDS also assert, without citing any applicable authority, that because SecGen originally named them as Doe defendants and then dismissed them, SecGen is barred from bringing the Motion to Amend. This argument is based on the claim that SecGen only had 3 years to serve the complaint on the PAJDS and, having dismissed them, the 3 years has passed and SecGen is barred from now moving to amend the judgment to include them. [1] But for the same reasons the Court in Lopez v. Escamilla (2020) 48 Cal. App.5th 763, 766 rejected the argument that adding a party to the judgment after the judgment had been entered based on an alter ego finding was barred by the statute of limitations, this claim is without merit here. As the Court stated in Lopez: “By adding an alter ego defendant, the Court is not entering a new judgment, but merely inserting the correct name of the real defendant” and “This may be done at any time” because “Statutes of limitations on substantive causes of action do not apply to proceedings to declare alter ego.”

In all of the procedural arguments the PAJDS make they also ignore the substantive issues the Court must decide in ruling on a Motion to Amend to add parties to the judgment based on an alter ego Claim. As the Court held in Triyar Hospitality Management, LLC v. WSA (II)—HWP, LLC , (2020) 57 Cal. App. 5th 636, 641: “To prevail in a motion to ADD judgment debtors, WSI must show that (1) the parties to be added as judgment debtors had control of the underlying litigation and were virtually represented in that proceeding; (2) there is such a unity of interest and ownership that the separate personalities of the entity and owners no longer exists; and (3) an inequitable result would follow if the acts are treated as those of the entity alone.” By definition, these determinations can only be made after the litigation is concluded and the judgment entered, not when a plaintiff is deciding to add are not at Doe defendants at the earliest stages of the litigation.

Accordingly, the Specially Appearing Judgment Debtor’s Motion to Dismiss Based on Procedural Objections is DENIED.

DATED: January 14, 2021

________________________________

Hon. Robert S. Draper

Judge of the Superior Court


[1] The Weissberg Declaration fully explains the reasons the "delay" between the dismissal of the PAJDS as Doe defendants and the filing of the Motion to Amend and the PAJDS have not established any "prejudice" from the alleged "delay."

Case Number: BC609405    Hearing Date: August 03, 2020    Dept: 78

Superior Court of California

County of Los Angeles

Department 78

SECOND GENERATION, INC.;

Plaintiff,

vs.

KODY BRANCH OF CALIFORNIA, et al.;

Defendants.

AND RELATED CROSS-ACTIONS

Case No.:

BC609405

Hearing Date:

August 3, 2020

[TENTATIVE] RULING RE:

Plaintiff/CROSS-DEFENDANT SECOND GENERATION, INC.’S Motion for Attorneys’ Fees.

Plaintiff Second Generation, Inc.’s Motion for Attorneys’ Fees and Costs is GRANTED in the total amount of $937,732.91 for attorneys’ fees and $4,341.56 for costs.

FACTUAL BACKGROUND

This is an action for breach of contract. The Complaint alleges as follows. Plaintiff Second Generation, Inc. (“SecGen”) is a women’s clothing and apparel design, sale, and wholesale distribution company who entered into an agreement on March 12, 2008 with Defendants Kody Branch of California, Inc., Kody Brand, Inc., and Trinh Vuong Garment Co. Ltd. (collectively, “Kody”). (Compl. ¶ 3-4.) Beginning 2014, after years of a successful relationship, SecGen placed a large production order with Kody, but Kody repeatedly failed to deliver the goods on time, causing SecGen to suffer monetary penalties, cancelled orders, and broken business relationships with retail customers. (Compl. ¶5-8.)

relevant procedural history

SecGen filed the Complaint on February 5, 2016, alleging five causes of action:

  1. Breach of contract

  2. Tortious interference with contract

  3. Intentional interference with prospective economic advantage

  4. Fraud

  5. Negligent misrepresentation

On June 24, 2016, Kody Branch filed a cross-complaint alleging four causes of action:

  1. Breach of contract

  2. Goods sold and delivered

  3. Open book account

  4. Account stated

On October 19, 2017, the Court granted SecGen’s Motion for Summary Adjudication of the First Cause of Action for breach of contract against Kody Branch of California, Inc., Seven-Bros Enterprises, Inc., Trinh Vuong Garment Co. Ltd., Cathy Trinh, and Kody Branch, Inc., jointly and severally (all Defendants are a single enterprise and/or alter egos of each other). The Court awarded liquidated damages in the total amount of $2,082,983.36.

On February 26, 2018, the Court entered an Order granting the Stipulation entered into between SecGen and Defendants, wherein: (1) SecGen dismissed the second, third, fourth, and fifth causes of action without prejudice; (2) Defendants withdrew their Motion to Dismiss; (3) Defendants withdrew their Motion for Reconsideration of the Court’s Order on the MSA; (4) without admitting liability, and with the Parties expressly agreeing the Defendants are not the prevailing party for purposes of the cross-complaint, SecGen gave Defendants a $30,000 credit for the Cross-Complaint; (5) all parties preserved rights of appeal.

On April 6, 2018, Judge Shaller entered judgment in this case: Judgment granted in favor of SecGen. SecGen was the prevailing party, recovering damages of $2,082,983.36. SecGen also to recover prejudgment interest of $615,946.88, plus $584.64 per day thereafter in interest. SecGen also to recover cost of $16,527.28 plus interest at 10% per annum, and attorneys’ fees of $752,383.78, plus interest at 10% per annum.

Defendants appealed.

On November 19, 2019, the Court received the remittitur from the Court of Appeal, affirming the judgment of the trial court. The Court of Appeal specified that SecGen was to recover its costs on appeal.

On January 14, 2020, SecGen filed the present Motion for Attorneys’ Fees.

No Opposition has been filed.

DISCUSSION

  1. REQUEST FOR JUDICIAL NOTICE

The court may take judicial notice of “[r]ecords of (1) any court of this state or (2) any court of record of the United States or of any state of the United States.” (Evid. Code § 452.)

SecGen seeks judicial notice: (1) the Court’s order from October 19, 2017; (2) the Court’s order from March 23, 2018; (3) the Judgment in this matter from April 6, 2018; the Opinion of the Court of Appeal as to this matter, filed August 9, 2019; (3) the Remittitur from the Court of Appeal dated November 19, 2019.

The Court GRANTS these requests.

  1. MOTION FOR ATTORNEYS’ FEES

Parties to litigation must generally bear their own attorney’s fees, unless they otherwise agree. (Code Civ. Proc. § 1021.) “A prevailing party is entitled to recover attorney fees by contract.” (Regency Midland Construction, Inc. v. Legendary Structures Inc. (2019) 41 Cal.App.5th 994, 1000, as modified on denial of reh'g (Nov. 26, 2019), review denied (Feb. 11, 2020).)

Here, as previously found by the Court, the contract on which Plaintiff SecGen prevailed states: “The prevailing party in any litigation related to this contract shall be entitled to this reasonable attorney’s fees and costs.” (RJN, Exh. B., p. 5.) Accordingly, SecGen may recover attorney’s fees for the appeal in this case, because it is “litigation related to this contract” and they are the prevailing party. Further, the Court of Appeal remittitur expressly provides that SecGen may recover costs.

“It is well established that the determination of what constitutes reasonable attorney fees is committed to the discretion of the trial court, whose decision cannot be reversed in the absence of an abuse of discretion.” (Melnyk v. Robledo (1976) 64 Cal.App.3d 618, 623.) In exercising its discretion, the court should consider a number of factors, including the nature of the litigation, its difficulty, the amount involved, the skill required in handling the matter, the attention given, the success or failure, and the resulting judgment. (See id.)

In determining the proper amount of fees to award, courts use the lodestar method. The lodestar figure is calculated by multiplying the total number of reasonable hours expended by the reasonable hourly rate. “Fundamental to its determination . . . [is] a careful compilation of the time spent and reasonable hourly compensation of each attorney . . . in the presentation of the case.” (Serrano v. Priest (1977) 20 Cal.3d 25, 48 (Serrano III).) A reasonable hourly rate must reflect the skill and experience of the attorney. (Id. at p. 49.) “Prevailing parties are compensated for hours reasonably spent on fee-related issues. A fee request that appears unreasonably inflated is a special circumstance permitting the trial court to reduce the award or deny one altogether.” (Serrano v. Unruh (1982) 32 Cal.3d 621, 635 (Serrano IV).) The Court in Serrano IV also stated that fees associated with preparing the motion to recover attorneys’ fees are recoverable. (See id. at p. 624.)

SecGen asks for attorneys’ fees for the appeal in the amount of $197,011.00 plus costs of $4,204.66, for a total of $201,215.66 for the appeal. (Motion at p. 12.) SecGen also asks for $25,065.00 in attorneys’ fees for this fee motion, plus costs of $136.90. (Motion at p. 12.)

Defendants did not file an Opposition. Therefore, these requests are unopposed and the Court accordingly has no reason to deny these requests.

However, SecGen also asks for attorneys’ fees of $718,871.91 plus costs to-be-determined for “Collection.” (Motion at p. 12.) SecGen does not provide much information to the Court on how it arrived at this requested amount, nor what the amount is actually for. SecGen contends that it is entitled to recover its costs in enforcing the judgment pursuant to Code of Civil Procedure section 685.040. (Motion at p. 7.) SecGen argues that from June 2018 to the present it hired a bankruptcy specialist law firm, Smiley Wang-Ekvall (“SWE”) to “oversee collection efforts” while Defendants filed for bankruptcy on February 9, 2018. (Motion at pp. 3-4.) They contend that the bankruptcy filings led to extensive discovery and motion practice in bankruptcy court, and that the bankruptcy filings “were likely made to delay SecGen’s collection efforts, and Defendants took steps to keep assets from SecGen and otherwise minimize SecGen’s recovery on its judgment.” (Motion at p. 4.)

Code of Civil Procedure section 685.040 states:

“The 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.”

(Code Civ. Proc., § 685.040.)

Subparagraph (A) of paragraph (10) of subdivision (a) of Section 1033.5 relates to attorneys’ fees whn authorized by contract. A prevailing party’s efforts in bankruptcy court and related proceedings to enforce a superior court judgment are recoverable attorneys’ fees and costs. (Jaffe v. Pacelli (2008) 165 Cal.App.4th 927, 929.) In Jaffe, the prevailing party in the trial action participated in the judgment debtor’s bankruptcy proceeding “that included resisting, and eventually obtaining dismissal of, [judgment debtor’s) bankruptcy petition,” in which the prevailing party contended that “all efforts were reasonable and necessary costs of enforcing the October 7, 1996 judgment.” (Id. at 933.) The court agreed, overturning the trial court’s denial of the bankruptcy fees due to being “an entirely different proceeding.” (Id.) Accordingly, SecGen may recover attorneys fees and costs that derive from defending the trial court judgment in bankruptcy proceedings.

Because this Motion is unopposed, the Court grants this Motion as requested.

Accordingly, SecGen’s Motion for Attorneys’ Fees and Costs is GRANTED in the total amount of $937,732.91 for attorneys’ fees and $4,341.56 for costs.

SecGen to give notice.

DATED: August 3, 2020

________________________________

Hon. Robert S. Draper

Judge of the Superior Court

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