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 Post subject: FT - Fleetwood Retail Corp v. Denison (6/30/2005)
PostPosted: Thu Feb 26, 2009 6:56 pm 

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Fleetwood Retail Corporation of California
v. Edward L. Denison et al.,
No. B175483 (Cal.App. 07/20/2005)

C046897

COURT OF APPEAL OF CALIFORNIA, THIRD APPELLATE DISTRICT

2005 Cal. App. Unpub. LEXIS 5783

June 30, 2005, Filed

NOTICE: [*1] NOT TO BE PUBLISHED IN OFFICIAL REPORTS. CALIFORNIA RULES OF COURT, RULE 977(a), PROHIBIT COURTS AND PARTIES FROM CITING OR RELYING ON OPINIONS NOT CERTIFIED FOR PUBLICATION OR ORDERED PUBLISHED, EXCEPT AS SPECIFIED BY RULE 977(B). THIS OPINION HAS NOT BEEN CERTIFIED FOR PUBLICATION OR ORDERED PUBLISHED FOR THE PURPOSES OF RULE 977.

PRIOR HISTORY: Superior Court of Sacramento County, No. 03AS01620.

JUDGES: ROBIE, J.; NICHOLSON, Acting P.J., RAYE, J. concurred.

OPINIONBY: ROBIE

OPINION: This case proves the old adage -- two wrongs do not make a right. Defendants Edward L. Denison, Annette M. Denison, and Marie T. Bottorf n1 were wrong in fraudulently transferring three parcels of property to avoid collection by Fleetwood Retail Corporation of California of its judgment against them. Plaintiff Fleetwood was wrong in pursuing a default judgment for punitive damages and attorney fees as damages when it did not specify the amounts of those damages in its complaint or in a statement of damages. We shall affirm in part and reverse in part.

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n1 We shall refer to all three defendants collectively as defendants and Edward and Annette Denison as the Denisons.

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Defendants appeal from Judge Thomas Cecil's denial of their motion to set aside their default based on the lack of proper service of the summons and complaint and the surprise or excusable neglect of their attorney. Defendants also appeal from the default judgment in the amount of $ 123,590.39 entered by Judge Shelleyanne Chang. Defendants contend the trial court erred in granting Fleetwood any monetary relief because the complaint failed to state any specific monetary demands. We affirm the entry of the defaults and reverse the award of punitive damages and general damages. However, because the attorney fees may constitute recoverable costs, we remand for further proceedings as to costs.

FACTUAL AND PROCEDURAL BACKGROUND

According to the verified complaint filed in this action, the Denisons sued Fleetwood in 2001. In turn, Fleetwood filed a cross-complaint against the Denisons. On September 25, 2002, the jury rendered its verdict in favor of Fleetwood on both the complaint and cross-complaint and awarded Fleetwood damages against the Denisons in the amount of $ 105,768.11. The jury verdict in that amount was returned at 11:30 a.m. At 1:41 p.m. the same day, the Denisons recorded [*3] transfers of their interests in three parcels of property they owned to their daughter, Marie T. Bottorf. The deeds for the transfers reflected that the transfers were gifts. After the verdict, the trial court awarded Fleetwood its attorney fees, bringing the total judgment to $ 163,607.92.

In this action, Fleetwood sued defendants to set aside these three transfers under the Uniform Fraudulent Transfer Act (UFTA) (Civ. Code, § 3439 et seq.). Fleetwood alleged these transfers were made with the intent to hinder, delay, or defraud the Denisons' creditors, including Fleetwood. Fleetwood's complaint contained five "causes of action." n2 In the first, third, fourth and fifth "causes of action," Fleetwood sought: (a) to set aside the fraudulent transfer; (b) an injunction against any further transfer or encumbering of the properties; (c) the appointment of a receiver; and (d) the imposition of a constructive trust. Fleetwood's second "cause of action" was for damages based on a conspiracy theory. While the complaint sought general damages, attorney fees, and punitive damages, it did not specify the dollar amounts sought. Moreover, Fleetwood never served defendants with a statement of [*4] damages or reservation of punitive damages under Code of Civil Procedure n3 sections 425.11 or 425.115.

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n2 While we use the nomenclature of the complaint, these pled "causes of action" were actually five separate legal theories for relief based on a single cause of action -- defendants' single violation of Fleetwood's primary right to collect the judgment by their fraudulent transfer of these properties.

n3 All further statutory references are to the Code of Civil Procedure unless otherwise indicated.

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After Fleetwood served the summons and complaint on defendants in March 2003, defendants' attorney, Al Seastrand, admitted to Fleetwood's attorney that the transfers were indefensible. The attorneys engaged in negotiations in an attempt to resolve the matter over the next few months. During those negotiations, Fleetwood granted defendants an open extension of time to answer the complaint that could be revoked upon written notice at any time.

On July 7, 2003, when the negotiations broke down, Fleetwood's [*5] attorney provided notice to Seastrand by e-mail that his clients needed to resolve the case or file an answer by Friday July 11, 2003. Fleetwood's attorney also provided the Denisons with notice through the escrow officer of the title company involved in the escrow from which the funds necessary to pay the outstanding judgment would be forthcoming. That escrow officer confirmed that he had provided notice to the Denisons.

When defendants' answers were not on file on Friday, July 11, Fleetwood filed a request to enter their defaults on Monday, July 14. Meanwhile, on July 11, 2003, defendants retained a new attorney, Frederick Stephenson, to represent them. On July 14, 2003, Stephenson faxed Fleetwood's attorney a letter advising her of his substitution into the action. Fleetwood responded the next day informing Stephenson that defendants' defaults had been entered.

Defendants filed a motion to set aside the defaults on October 20, 2003. Defendants proffered no explanation for the delay between the July entry of default and the October date of the motion. In support of their motion, defendants argued the defaults should be set aside because the service of the summons and complaint [*6] was improper. Further, they conceded "it is hard to view their conduct, or that of Mr. Seastrand or Mr. Stephenson, as constituting 'mistake', 'inadvertence', or 'excusable neglect'." Instead they argued "More realistically, the moving parties and both attorneys are the victims of surprise." They then switched gears and alternatively argued they were the victims of their attorneys' excusable neglect in relying on the open extension of time in which to answer. The trial court properly denied this motion, correctly concluding that none of the grounds asserted were well taken.

Next, Fleetwood filed an application for a court judgment. In that application, Fleetwood sought $ 100,000 in punitive damages, $ 3,844.39 in costs, and $ 19,746 in attorney fees. Fleetwood argued that its attorney fees were recoverable as damages under the "'tort of another'" doctrine (see Gray v. Don Miller & Associates, Inc. (1984) 35 Cal.3d 498, 505, 198 Cal. Rptr. 551) on the theory that the fraudulent transfer of the property caused them to have to file this suit. Alternatively, Fleetwood argued the fees were damages recoverable under the contract that was the subject of the initial action. [*7]

While Fleetwood sought $ 3,844.39 in costs and $ 19,746 in attorney fees in its application, the attorney billing statements it provided to the court reflected attorney fees of only $ 19,346, statutorily recoverable costs of $ 524.50, and additional costs of $ 3,323.60 for things such as "administrative fees," Lexis research, Westlaw research, and postage.

The trial court entered a default judgment as requested. Defendants filed a timely notice of appeal.

DISCUSSION

I

The Motion To Set Aside The Default

A

Defendants Were Properly Served

The Denisons argue the trial court erred in refusing to set aside their default because they were not properly served with the summons and complaint in this action. We reject this contention.

"'Compliance with the statutory procedures for service of process is essential to establish personal jurisdiction. [Citation.] Thus, a default judgment entered against a defendant who was not served with a summons in the manner prescribed by statute is void. [Citation.]' [Citation.] Under section 473, subdivision (d), the court may set aside a default judgment which is valid on its face, but void, as a matter of law, [*8] due to improper service. [Citations.] [P] Section 415.20, subdivisions (a) and (b) authorize substitute service of process in lieu of personal delivery. Statutes governing substitute service shall be 'liberally construed to effectuate service and uphold jurisdiction if actual notice has been received by the defendant . . . . [Citation.]' [Citation.]" (Ellard v. Conway (2001) 94 Cal.App.4th 540, 544.)

Under section 415.20, subdivision (b), "If a copy of the summons and complaint cannot with reasonable diligence be personally delivered to the person to be served, as specified in Section 416.60, 416.70, 416.80, or 416.90, a summons may be served by leaving a copy of the summons and complaint at the person's dwelling house, usual place of abode, usual place of business, or usual mailing address other than a United States Postal Service post office box, in the presence of a competent member of the household or a person apparently in charge of his or her office, place of business, or usual mailing address other than a United States Postal Service post office box, at least 18 years of age, who shall be informed of the contents thereof, and by thereafter mailing a [*9] copy of the summons and of the complaint by first-class mail, postage prepaid to the person to be served at the place where a copy of the summons and complaint were left. Service of a summons in this manner is deemed complete on the 10th day after the mailing."

The record amply supports the trial court's conclusion that Fleetwood properly served the Denisons with the summons and complaint in compliance with the terms of the statute and that they received notice of this action. The declaration of the registered process server establishes that she made five separate attempts to serve the Denisons at their usual mailing address of 13040 Momtoma Lane, Wilton, California. On her sixth visit to that address on March 30, 2003, the process server substitute served Colleen Denison -- a competent member apparently in charge of that address who was over 18 years old -- on behalf of the Denisons. The process server then mailed a copy of the documents to both parties at that same address on March 31, 2003. This met the letter of the statute.

The Denisons assert service was improper based on the following logic: First, they presented evidence that the address at which service was accomplished [*10] (13040 Momtoma Lane) is a 26-acre parcel with two homes that are separated by 500 yards. While admitting that the homes share the same mailing address, the served party (daughter Colleen Denison) averred she lives at one of those homes and the Denisons live at the other.

It is simply immaterial that there are two houses at this single mailing address. Under the express language of section 415.20, subdivision (b), this service was properly based on the Denisons' usual mailing address -- not their residence. Service was proper.

Colleen Denison also claimed that she did not give a copy of the documents to her parents because she threw them away when she was told to do so by a staff member of Fleetwood's attorney's office. The secretary who spoke with Colleen Denison denied that she told her to throw the documents away. Significantly, in their declarations, the Denisons did not assert they did not receive actual notice of the lawsuit, but rather, admitted that they directed their attorneys to negotiate a resolution of this lawsuit with Fleetwood's attorney during the time this action was pending. Attorney Seastrand further admitted that he was representing the Denisons in both actions [*11] in his negotiations with Fleetwood's counsel.

B

Defendants Failed To Show Surprise

Defendants next argue that their attorney was taken by surprise when their defaults were taken and their defaults should be set aside on that basis. We reject this claim.

Under section 473, subdivision (b), "The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken."

"'The lower court has discretionary power to decide the issue growing out of a motion for relief under the remedial provisions of section 473, Code of Civil Procedure, and its exercise thereof will not be disturbed by an appellate tribunal unless there is a clear showing of abuse [citations].' [Citation. [*12] ]" (Ludka v. Memory Magnetics International (1972) 25 Cal. App. 3d 316, 321, 101 Cal. Rptr. 615.) The record here amply demonstrates the court did not abuse its discretion.

On the question of surprise, defendants contend they are the victims of surprise that Fleetwood "would preemptively take the defendants' default without a clearly communicated termination of the existing implicit open extension of time, and without adequately dealing with any ambiguity regarding representation in a manner such that it could be reasonably assured that defendants would receive actual knowledge of the termination." We reject this claim.

"The term 'surprise,' as used in section 473, refers to '"some condition or situation in which a party . . . is unexpectedly placed to his injury, without any default or negligence of his own, which ordinary prudence could not have guarded against."'" (State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 611.)

Here, the trial court did not abuse its discretion in concluding the entry of defendants' defaults was not the result of surprise. Fleetwood's counsel provided evidence that she communicated her intent [*13] to take the Denisons' defaults to their attorney, Seastrand, and to their escrow officer (who in turn informed the Denisons) several days before she took that action. She also provided evidence that that information was conveyed to the Denisons personally. As the trial court concluded, "It seems clear to the court that defendants were properly served and were notified that [a] certain action had to be [taken] by a definite date or their defaults would be taken. That action was not [taken] and, true to her word, counsel for plaintiff took defendants' default. . . . [P] . . . [P] By competent evidence, [Fleetwood] has demonstrated that notice of the intent to take Defendants' default was provided to defendants' counsel of record, Mr. Seastrand. There is no evidence that Mr. Seastrand was not, at the time of those notifications, counsel of record." The trial court did not err. n4

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n4 In addition, we could sustain the trial court's discretionary ruling on an independent ground as well. In Ludka, the defendant inexplicably waited three months between the time of the entry of a default and the bringing of a motion to set aside that default. (Ludka v. Memory Magnetics International, supra, 25 Cal. App. 3d at p. 321.) The appellate court concluded that a trial court acted well within its discretion in denying a motion to set aside a default when it concluded the defendant failed to exercise diligence in bringing the motion to set aside the default. (Id. at pp. 321-322.) The court explained, "Diligence is an essential ingredient of a motion for relief under section 473. 'Courts do not relieve litigants from the effects of mere carelessness. Defendant has not cited, nor has independent research disclosed, any case in which a court has set aside a default where, in making application therefor, there has been an unexplained delay of anything approaching three months after full knowledge of the entry of the default.' [Citation.]" (Ibid.)

Similarly, here, defendants waited from July 14, 2003, to October 20, 2003, over three months, to bring their motion to set aside the default. They offered no excuse for that delay. The trial court's rejection of this application in these circumstances does not constitute an abuse of discretion.

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C

There Was No Excusable Neglect

Defendants next argue that their attorneys' failure to file an answer constituted excusable neglect requiring the court to set aside the defaults. We disagree.

"Section 473, subdivision (b) provides for two distinct types of relief--commonly differentiated as 'discretionary' and 'mandatory'--from certain prior actions or proceedings in the trial court. 'Under the discretionary relief provision, on a showing of "mistake, inadvertence, surprise, or excusable neglect," the court has discretion to allow relief from a "judgment, dismissal, order, or other proceeding taken against" a party or his or her attorney. Under the mandatory relief provision, on the other hand, upon a showing by attorney declaration of "mistake, inadvertence, surprise, or neglect," the court shall vacate any "resulting default judgment or dismissal entered."' [Citation.] Applications seeking relief under the mandatory provision of section 473 must be 'accompanied by an attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect.' ( § 473, subd. (b).)" (Luri v. Greenwald (2003) 107 Cal.App.4th 1119, 1124.)

Here, [*15] defendants did not provide a declaration from either of their attorneys that their defaults were entered due to their attorneys' neglect. Seastrand never swore that the defaults of his clients were entered as a result of his mistake, inadvertence, surprise, or neglect. Instead, he averred that he was unable to negotiate an agreement for his clients, that he had an open extension of time in which to file an answer, and "that I can recall, I never at any time received anything whatever from [defendant's counsel] or anyone else in behalf of FLEETWOOD, requiring any defendant to file a responsive pleading in the within action." Contrasted with this anemic showing, Fleetwood's counsel provided her declaration and the supporting written evidence that she provided such notice before taking the actions at issue in this lawsuit. Based upon this conflicting evidence, the trial court's finding that defendants' defaults were not the result of Seastrand's mistake, inadvertence, surprise, or neglect was supported by substantial evidence and did not constitute an abuse of its discretion. The motion to set aside the default was properly denied.

II

The Default Judgment

A

[*16] The Punitive Damages Award Was Improper

The resolution of the first two issues in Fleetwood's favor does not end our inquiry. We must determine whether the judgment entered by the trial court for punitive damages and attorney fees can be sustained under section 580. We conclude that the awards for punitive damages and attorney fees cannot stand, but that attorney fees may properly be awarded as costs with the appropriate showing on remand. n5

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n5 Because we conclude the judgment may not include an award of fees and punitive damages due to Fleetwood's failure to plead the amount of these damages, we express no opinion on the question of whether a cause of action under the UFTA could support a claim for attorney fees as damages directly, on a conspiracy theory, or on the theory of tort of another.

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Under section 580, "(a) The relief granted to the plaintiff, if there is no answer, cannot exceed that which he or she shall have demanded in his or her complaint, in the statement required by Section 425.11, or [*17] in the statement provided for by Section 425.115; but in any other case, the court may grant the plaintiff any relief consistent with the case made by the complaint and embraced within the issue. The court may impose liability, regardless of whether the theory upon which liability is sought to be imposed involves legal or equitable principles." n6

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n6 Under section 425.11, a plaintiff may serve a notice on the defendant identifying the specific amount of money he or she seeks to recover in a personal injury action. Further, under section 425.115, a plaintiff may provide the defendant with notice of intent to recover punitive damages in a specific dollar amount.

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"The primary purpose of section 580 is to insure adequate notice to the defendant of the demands made upon him. [Citation.] As a corollary of this rule a default judgment in excess of the amount prayed for is void." (Ludka v. Memory Magnetics International, supra, 25 Cal. App. 3d at p. 322.) Stated another way, "Reasoning that a default [*18] judgment which exceeds the demand would effectively deny a fair hearing to the defaulting party, the Courts of Appeal have consistently read section 580 to mean that a default judgment greater than the amount specifically demanded is void as beyond the court's jurisdiction. [Citation.] [P] The purpose of section 580 is to assure a defendant that if he does not contest the action, the judgment taken against him will not go beyond the prayer of the complaint, 'for a defendant has the right to assume that the judgment which would follow a default on his part would embrace only the issues presented by the complaint and the relief therein asked.'" (In re Marriage of Wells (1989) 206 Cal. App. 3d 1434, 1437-1438, 254 Cal. Rptr. 185.)

In Ludka, the plaintiff sought specific amounts of money in the prayer for each of his two first causes of action. (Ludka v. Memory Magnetics International, supra, 25 Cal. App. 3d at p. 322.) The trial court affirmed the default awards of those amounts. (Id. at pp. 322, 324.) In the third cause of action, however, plaintiff alleged "'3. On THE THIRD CAUSE OF ACTION, for damages according to proof; 4. [*19] For costs of suit incurred herein; and for such other and further relief as the court deems just.'" (Id. at p. 322.) The court concluded that because there were no allegations as to the amount of monetary damages sought in the prayer or body of the complaint on this cause of action, the trial court could not award any damages on this cause of action in a default judgment. (Id. at p. 323.)

Here, the only cause of action under which Fleetwood sought damages was its second cause of action for conspiracy. Fleetwood alleged in its pleading that it sought to recover "general damages in a sum to be determined at trial equal to the non-exempt equity in each of said properties as of the date of either the transfer to Defendant BOTTORF, or the re-transfer thereof from Defendant BOTTORF to Defendant DENISON, whichever is greater, but not in excess of the amount necessary to fully satisfy Plaintiff's judgment, inclusive of post-judgment interest, costs, and attorneys' fees incurred in this action; [and] [P] For exemplary or punitive damages in an amount proven at trial." This pleading failed to provide defendants with actual notice of the amounts of attorney [*20] fees or punitive damages that Fleetwood sought. Thus, defendants had the right to assume that the judgment which would follow their default would embrace only the issues presented by the complaint and the relief therein asked, i.e., a judgment in Fleetwood's favor without a damages award. Thus, the awards of damages for attorney fees of $ 19,746 and punitive damages of $ 100,000 were in excess of the trial court's jurisdiction and thus void.

In an attempt to salvage its failure to provide notice of its damages in its complaint, Fleetwood argues that defendants were on notice that it sought attorney fees and punitive damages, and thus its failure to plead these amounts was inconsequential. Not so.

First, Fleetwood's statement in settlement conversations that it would seek unspecified fees and punitive damages provides no more useful information, or actual notice, than the language we have quoted from Fleetwood's complaint.

Second, even if Fleetwood had provided specific dollar amounts during those negotiations, that still would not be sufficient. It is the pleadings and the statements of damages and punitive damages required by statute ( §§ 425.11 & 425.115) that serve the notice [*21] function that due process requires before a default judgment may be entered. We thus reject Fleetwood's contention that actual notice trumps their inadequate pleadings.

B

On Remand Attorney Fees May Properly Be Awarded As Costs

Fleetwood argues that its attorney fees were properly awarded as costs under sections 685.040 and 1033.5. n7 We shall remand for further proceedings on this point.

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n7 We grant defendant's request that we take judicial notice of the original complaint and its claims based upon the contract between the Denisons and Fleetwood.

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As we have already discussed, under section 580, the affirmative relief that may be granted in the context of a default judgment is limited to that which is specifically pled. Costs, however, are different than affirmative relief. "'The awarding of costs is but an incident to the judgment. . . .' [Citations.] Accordingly, costs follow as a matter of course unless the court for good reason should decree otherwise. [Citation.] No further judicial action [*22] is required after an award of costs is made. The requirement is imposed upon the party who is entitled to costs that he file a memorandum of the items of his costs and disbursements ( § 1033) and if he fails to do so he is deemed to have waived the costs accruing in his favor." (Oak Grove School Dist. v. City Title Ins. Co. (1963) 217 Cal. App. 2d 678, 696-697, 32 Cal. Rptr. 288, fn. omitted.) Defendants concede as much in their opening brief where they argue: "there is a difference which would perhaps obviate a procedural due process requirement of notice of the amount being sought in costs, at least in some measure. The difference is that costs are authorized by statute to the prevailing party, and while the dollar amounts may not be known, at least in principle the potential liability can be understood because it is enumerated by statute."

Under section 1033.5, subdivision (a)(10)(B), attorney fees are awardable as an item of costs when they are authorized by statute. Here, the relevant statute is section 685.040, which states, "The judgment creditor is entitled to the reasonable and necessary costs of enforcing a judgment. Attorney's fees incurred in enforcing [*23] 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." (Italics added.)

Fleetwood's attempt to justify the attorney fees award as costs has two problems. First, the record does not show that Fleetwood sought to recover these fees as costs below. Fleetwood did not advance section 685.040 as a basis to recover its fees, nor does the record suggest Fleetwood followed the procedures outlined in section 685.080. Under section 685.080, Fleetwood was required to include these fees in its memorandum of costs and file a noticed motion.

On this point, however, after a default, defendants are not entitled to notice of this motion and may not appear at any hearing on that motion. "The entry of a default terminates a defendant's rights to take any further affirmative steps in the litigation until either its default is set aside or a default judgment is entered. [Citations. [*24] ] 'A defendant against whom a default has been entered is out of court and is not entitled to take any further steps in the cause affecting plaintiff's right of action; he cannot thereafter, until such default is set aside in a proper proceeding, file pleadings or move for a new trial or demand notice of subsequent proceedings.' [Citation.]" (Devlin v. Kearny Mesa AMC/Jeep/Renault, Inc. (1984) 155 Cal. App. 3d 381, 385-386, 202 Cal. Rptr. 204, italics omitted.)

The second problem with Fleetwood's position is that there is currently no evidence in the record that would support a finding that attorney fees were awarded under the contract between the parties in the underlying action. It is undisputed the judgment in the underlying action was augmented by an award of attorney fees. Further, the record strongly suggests this fee award was based on the contract between the parties and thus these fees were awarded under section 1033.5, subdivision (a)(10)(A). n8 However, the only direct claim that these fees were awarded under the contract is contained in the unsworn memorandum of points and authorities filed in support of the application for the court judgment. "'The [*25] unsworn statements of counsel are not evidence.' [Citation.]" (People v. Wallace 33 Cal.4th 738, 754, fn. 3.) Thus, we must remand this matter for further proceedings.

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n8 This conclusion is supported by the complaint in the underlying action which demonstrates the existence of the contract between the parties and its underlying attorney fees provision. Further, in defendants' proposed answer filed with their motion to set aside their default, they admitted that attorney fees were added to the judgment, but claim they were uncertain as to the amount.

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Defendants argue that under section 685.040, any qualifying fees may be sought only in the original action, not in the current action. They cite no authority for that proposition, nor does the language of the statute limit its application to the initial action in which a judgment was entered. Fleetwood is a judgment creditor ( § 680.240) and this action falls within the parameters of section 685.040. Attorney fees incurred in an action to set [*26] aside a fraudulent transfer made with the intent to hinder, delay, or defraud a judgment creditor constitute fees incurred in enforcing the judgment.

Further, the award of fees in a separate action was approved in Aspen Internat. Capital Corp. v. Marsch (1991) 235 Cal. App. 3d 1199, 1202, 1206, 286 Cal. Rptr. 921. There, the appellate court concluded that the trial court properly amended a California judgment -- entered to enforce a sister state judgment from Colorado -- under section 685.040 to include attorney fees incurred in the enforcement of the judgment.

If, on remand, Fleetwood can establish the underlying judgment contains an award of attorney fees as costs pursuant to section 1033.5, subdivision (a)(A)(10), then under section 685.040, attorney fees are recoverable as a cost in this action brought to enforce that judgment.

As to the amount of fees and costs awarded by the trial court, we note that there is a discrepancy between Fleetwood's evidence supporting its attorney fees request and the amount awarded. Further, Fleetwood provided evidence that only $ 524.50 of the costs it incurred fell within the parameters of recoverable costs under section 1033.5, [*27] subdivision (a) (service fees, filing fees, and recording fees). The remaining costs sought do not fall within any allowable category under section 1033.5.

DISPOSITION

The judgment is affirmed in part and reversed in part. It is affirmed to the extent it grants judgment in favor of Fleetwood and against defendants. It is reversed to the extent it awards punitive damages and attorney fees as damages. The matter is remanded for further proceedings consistent with this opinion on the issue of recoverable costs. The parties shall bear their own costs on appeal. (Cal. Rules of Court, rule 27(a).)

ROBIE, J.

We concur:

NICHOLSON, Acting P.J.

RAYE, J.


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