61 Cal.App.5th 923
Cal. Ct. App.2021Background
- In 2004 Gilman sued the Dalby law firm; on appeal in 2009 the court reversed an attorneys’ fees award of $17,229.27 that had been entered against Gilman.
- A month after the 2009 decision, Tammy R. Phillips (Appellants) — who held separate money judgments against Gilman — filed a notice of lien under Code Civ. Proc. § 708.410 claiming a lien on any ‘‘rights . . . to money or property under any judgment’’ in the Dalby action.
- Gilman later moved for restitution; the trial court ordered the Dalby respondents to return $17,229.27 to Gilman, the Dalbys paid, and Gilman dismissed his case without notifying Appellants.
- Appellants moved to vacate the dismissal and to satisfy their lien, arguing § 708.410 (read with § 680.230) covered the restitution order; they also sought sanctions under § 128.7 and enforcement costs against Gilman and the Dalbys.
- The trial court denied Appellants’ lien enforcement and sanctions claims, and largely denied awarding enforcement costs against the Dalbys; Appellants appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 708.410 lien attached to the $17,229.27 restitution order | Appellants: § 708.410 plus § 680.230 define “judgment” to include orders, so lien attached to money ordered returned to Gilman | Respondents: restitution order was not a “judgment” for § 708.410; statute shouldn’t reach this order | Court: statutory text and purpose permit liens on rights to money under an "order"; lien could have attached — reversed trial court on lien issue and remanded for further factfinding |
| Whether Appellants properly served notice of the lien (and thus whether parties had notice) | Appellants: they mailed the notice and satisfied service requirements | Respondents: deny receipt; claim no constructive notice via docket/website; some service proofs disputed | Court: factual dispute over receipt requires remand for trial court to weigh proof of mailing vs. denials; rights not affected until notice under § 708.410(c) |
| Whether Gilman and Thiel should be sanctioned under § 128.7 for seeking restitution/dismissing case | Appellants: filings were improper given their recorded lien; sanctions warranted | Respondents: filings were not primarily for improper purpose (Gilman sought lawful restitution); Thiel’s dismissal, even if procedurally flawed, was not sanctionable without proof of improper purpose | Court: reversed denial of sanctions against Gilman and remanded for reconsideration in light of lien possibility; affirmed denial of sanctions against Thiel (no showing of improper purpose) |
| Whether trial court erred in denying Dalby respondents’ motion to tax costs and related cost rulings | Appellants: trial court’s statement "no fees or costs shall be awarded against [Dalby]" improperly limits recovery and should be reversed | Dalby: Appellants repeatedly conceded they were not seeking enforcement costs from Dalby; order correctly denies costs against Dalby | Court: affirmed in relevant respects; rejected Appellants’ late attempt to expand cost claims on appeal |
Key Cases Cited
- Gilman v. Dalby, 176 Cal.App.4th 606 (prior appellate decision reversing part of judgment)
- Lucky United Properties Investment, Inc. v. Lee, 185 Cal.App.4th 125 (discusses limits on substituting “order” for “judgment” under the EJL)
- McClearen v. Superior Court, 45 Cal.2d 852 (remedial judgment-lien statutes construed liberally)
- Oldham v. California Capital Fund, Inc., 109 Cal.App.4th 421 (purpose of § 708.410 is to secure creditor priority to money/property from pending action)
- Bear Creek Master Assn. v. Edwards, 130 Cal.App.4th 1470 (trier of fact weighs proof of mailing against denial of receipt)
- Schubert v. Bates, 30 Cal.2d 785 (trial court has inherent authority to order restoration following appellate reversal)
- Draper v. City of Los Angeles, 52 Cal.3d 502 (remedial statutes are to be liberally construed)