Cоnservatorship of the Estate of IDA MCQUEEN. FESSHA TAYE, as Conservator, etc., Plaintiff and Respondent, v. CAROL VERES REED, Defendant and Appellant.
No. S209376
Supreme Court of California
July 7, 2014
602 | 59 Cal. 4th 602
James E. Reed and Brooke Veres Reed for Defendant and Appellant.
Law Offices of Daniel D. Murphy, Daniel D. Murphy; Law Office of Audra Ibarra and Audra Ibarra for Plaintiff and Respondent.
Richard M. Pearl for California Rural Legal Assistance, Inc., California Rural Legal Assistance Foundation, The Impact Fund, Legal Aid Association of California, Legal Aid Society-Employment Law Center and Western Center on Law and Poverty as Amici Curiae on behalf of Plaintiff and Respondent.
Jan T. Chilton, Jay-Allen Eisen, Dennis A. Fischer, Lisa R. Jaskol, Robin B. Johansen, Wendy Cole Lascher, Robin Meadow; Arnold & Porter and Steven L. Mayer for the California Academy of Appellate Lawyers as Amicus Curiae on behalf of Plaintiff and Respondent.
OPINION
WERDEGAR, J.-Under
In the present case, plaintiff Fessha Taye, conservator of the estate of Ida McQueen, prevailed at trial in an action for financial abuse of an elder or dependent adult, fоr which
We conclude that as to attorney fees on appeal from the elder abuse judgment, the motion was not subject to
FACTUAL AND PROCEDURAL BACKGROUND
Ida McQueen, the conservatee on whose behalf plaintiff is acting, is a physically and mentally disabled woman born in 1935. She uses a wheelchair and is unable to read or write. McQueen‘s late father established a testamentary trust for McQueen, giving her the right to live in the family‘s Oakland residence (held in the trust) and to receive the trust‘s net income during her lifetime. Defendant Reed, an attorney whose father had drafted the will, prepаred the order creating the trust.
In 2000, McQueen left the home for a skilled nursing facility and, eventually, for a community care facility. While she was in the skilled nursing
Plaintiff was appointed limited conservator of McQueen‘s estate in 2005 and brought this action against Reed, her brother Richard K. Veres (who helped Reed obtain the power of attorney), and several members of McQueen‘s family.2 The jury found Reed liable for financial elder abuse, breach of fiduciary duty and conversion. Based on her liability under the financial elder abuse statute, which contains a costs and fees provision (
While the first appeal in this case was pending, plaintiff brought a separate action against Reed, her husband James E. Reed, and their two children, alleging that after the jury‘s verdict against Reed, Reed and her husband “began transferring a number of parcels of real property out of her name and to other family members in order to avoid payment of the judgment....” In May of 2010, plaintiff voluntarily dismissed that action (hereafter the fraudulent transfer action) in exchange for defendants’ agreement, inter alia, to transfer one of the properties back to Reed.
By a series of payments in June and July of 2011, defendant paid plaintiff an amount the parties agreed was equal to the trial court judgmеnt plus accrued interest. Defendant‘s check for the final amount was honored on July 15, 2011.
On July 25, 2011, plaintiff filed the motion for costs and attorney fees that is the subject of this appeal. The motion sought $57,681.90 in fees and costs incurred in briefing and arguing the appeal and in prosecuting the fraudulent transfer action. The trial court, rejecting defendant‘s argument that her satisfaction of the underlying judgment had cut off plaintiff‘s right to seek fees on appeal, granted plaintiff‘s motion for fees and costs incurred on appeal and in the fraudulent transfer action.
The Court of Appeal reversed, holding the fee and cost motion was untimely undеr
Title 9 of part 2 of the
Recovery of costs incurred on appeal is statutorily authorized by
Plaintiff contends the fees he sought for responding to defendant‘s appeal and prosecuting the fraudulent transfer action were authorized by Welfare and
Because our analysis of the two sets of attorney fees sought here-those incurred on appeal and those incurred in prosecuting the fraudulent transfer аction-differs, we address them separately.
I. Attorney Fees Incurred Responding to the Appeal
We agree with plaintiff and the amici curiae that where attorney fees are authorized by statute (as they were here by
Nothing in our statutes or court rules suggests appellate fees come within the Enforcement of Judgments Law. The statutes and rules distinctly address three different types of costs and fees: prejudgment costs, including attorney fees where authorized by contract, statute or law (
Speaking more broadly, our procedural statutes and rules do not treat civil appeals as a part of the enforcement of judgment process. As stated above, the Enforcement of Judgments Law constitutes title 9 of part 2 of the
While the Enforcement of Judgments Law does not define “enforcement,” it nowhere suggests the term encompasses appeals. The law addresses in detail several means of enforcing a judgment, including liens on real and personal property (§§ 697.010-697.920), writs of execution (§§ 699.010-701.830), garnishment of wages (§§ 706.010-706.154) and writs of possession or sale (§§ 712.010-716.030). It also addresses in detail the effect and adjudication of third party claims (§§ 720.010-720.660) and the procedures governing satisfaction of the judgment (§§ 724.010-724.260). It does not, however, address procedures for appeal from the judgment; as already noted, those procedures are set out elsewhere in the
Regarding costs and fees,
Legislative history connected to a 1992 amendment to
Not surprisingly, given the distinct statutory treatment of enforcement and appeal, treatises also address the two topics separately. A practitioner‘s guide to еnforcement of judgments (Ahart, Cal. Practice Guide: Enforcing Judgments and Debts (The Rutter Group 2013)) contains no chapter on appeal from the judgment, and its thorough discussion of enforcement fees and costs (id., ¶¶ 6:33-6:55.2, pp. 6A-18 to 6A-28 (rev. # 1, 2012, 2013)) mentions fees and costs on appeal only once (id., ¶ 6:54.2, p. 6A-27 (rev. # 1, 2013)), as part of its discussion of when interest on each type of fees and costs (prejudgment, enforcement and appellate) begins accruing (id., ¶¶ 6:54-6:54.2, pp. 6A-26 to 6A-27 (rev. # 1, 2013)). Witkin‘s treatise on civil procedure, similarly, discusses appeals and the enforcement of judgments in completely separate chapters, and discusses recovery of costs and fees incurred in those procedural contexts separately as well. (See 8 Witkin, Cal. Procedure (5th ed. 2008) Enforcement of Judgment, §§ 46-49, pp. 86-91; 9 Witkin, Cal. Procedure, supra, Appeal, §§ 953-982, pp. 1008-1029.)
Nor have California decisions regarded appellate attorney fees authorized by statute as substantively dependent on the Enforcement of Judgments Law; rather, the substantive fee-shifting statutes themselves have generally been construed as authorizing an award of appellate fees. In Serrano v. Unruh (1982) 32 Cal.3d 621, 637 [186 Cal.Rptr. 754, 652 P.2d 985], holding
Defendant points out that Morcos involved a public entity defendant (as did Serrano v. Unruh, supra, 32 Cal.3d 621), a class as to which the Enforcement of Judgments Law has only limited application. (See §§ 695.050, 712.070.) The principle enunciated in Morcos, however, has been applied many times in suits between private parties approving appellate fee awards, without any reference to the Enforcement of Judgments Law. (See, e.g., Jankey v. Lee (2012) 55 Cal.4th 1038, 1057 [150 Cal.Rptr.3d 191, 290 P.3d 187]; Carpenter v. Jack in the Box Corp. (2007) 151 Cal.App.4th 454, 461 [59 Cal.Rptr.3d 839]; Kirby v. Sega of America, Inc. (2006) 144 Cal.App.4th 47, 62 [50 Cal.Rptr.3d 607]; Wilkerson v. Sullivan (2002) 99 Cal.App.4th 443, 448 [121 Cal.Rptr.2d 275]; Grade-Way Construction Co. v. Golden Eagle Ins. Co. (1993) 13 Cal.App.4th 826, 837-838 [16 Cal.Rptr.2d 649].) Appellatе attorney fees authorized by statute do not depend substantively on the Enforcement of Judgments Law. Procedurally, as we have seen, they are governed by the California Rules of Court rather than the Enforcement of Judgments Law.
The Court of Appeal, in holding that all the fees plaintiff sought were subject to the time limits of the Enforcement of Judgments Law, pursued its analysis largely without distinguishing between fees incurred defending the appeal and those incurred prosecuting the fraudulent transfer action. The main decisions upon which the lower court relied (Ketchum v. Moses (2001) 24 Cal.4th 1122 [104 Cal.Rptr.2d 377, 17 P.3d 735]; Globalist Internet Technologies, Inc. v. Reda (2008) 167 Cal.App.4th 1267 [84 Cal.Rptr.3d 725]; Jaffe v. Pacelli (2008) 165 Cal.App.4th 927 [82 Cal.Rptr.3d 423]; Carnes v. Zamani (9th Cir. 2007) 488 F.3d 1057) support its holding, if at all, only as to fees incurred in the fraudulent transfer action; none holds or states that appellatе fees are recovered pursuant to the Enforcement of Judgments Law.9
Nor does the first sentence of
If the cited sections of the Enforcement of Judgments Law applied to the appellate fees sought here, we might agree with the lower court‘s reasoning. The cited sections, however, apply only to attorney fees “allowed” and “authorized” by
Finally, the Court of Appeal correctly observed that the trial court, in its order granting plaintiff‘s motion for costs and fees, cited
Plaintiff‘s motion for costs and fees was filed on the 40th day after the Court of Appeal issued its remittitur from the first appeal in this case. As to the fees plaintiff incurred in opposing defendant‘s appeal from the judgment, therefore, the motion was timely under
II. Attorney Fees Incurred in the Fraudulent Transfer Action
In contrast with the proposed holding above regarding appellate fees, we agree with defendant and the Court of Appeal that as to fees incurred prosecuting his separаte fraudulent transfer action, plaintiff‘s motion was untimely under
Although incurred in a separate proceeding, the attorney fees plaintiff claims for prosecuting the fraudulent transfer action were expended in an
Plaintiff agrees his fraudulent transfer action fees were incurred in enforcement of the judgment, but maintains that when a substantive fee-shifting statute such as
We find plaintiff‘s construction of the Enforcement of Judgments Law untenable because
Rather than construe
To support his theory that enforcеment fees may be recovered independently of
Finally, plaintiff contends that even if the procedures of the Enforcement of Judgments Law apply to the attorney fees he incurred in the fraudulent transfer action, the law should be construed to allow a motion within a reasonable time after satisfaction of the judgment, rather than before satisfaction of the judgment as provided in
Plaintiff‘s argument is premised on a misapprehension as to the effect of
Conceivably, a judgment debtor could satisfy the judgment by tendering cash for the full outstanding amount, with interest, before the creditor has sought his or her enforcement costs and fees, though this is likely to be a rarity for sizeable judgments. If the creditor has reason to believe cash may imminently be tendered to pay the judgment, prudence counsels filing a motion or memorandum for the costs and fees accumulаted to that point; if the judgment is not then satisfied, any costs or fees accruing later may be sought in a supplemental motion or memorandum. In any event, the possibility that some wily judgment debtor may make a cash payment timed to foreclose a final motion for costs and fees does not provide this court authorization to ignore the explicit, unambiguous language of
Moreover,
The record here shows that plaintiff did exactly that. By a letter of June 30, 2011, defendant‘s attorney reiterated his previous request to plaintiff‘s attorney for the “pay-off amount of the judgment” and enclosed a check for his estimate of that amount. On July 8, 2011, plaintiff‘s attorney informed defendant‘s attorney by letter that the amount received was inadequate to constitute “payment in full” because it omitted accrued interest on part of the judgment. The amount of interest owing, according to the letter, was $18,529.40. By a second letter of the same date, plaintiff‘s counsel recalculated the amount due as $17,137.09. The second letter closed: “If you are in agreement, please forward a check to this office made payable to Fessha Taye and his counsel, Burnham Brown.” On July 14, 2011, defendant‘s attorney sent a check for $17,137.09 and asked plaintiff‘s attorney to acknowledge satisfaction of the judgment as soon as possible. As noted earlier, that check was presented and honored the next day.
That plaintiff apparently never provided the requested acknowledgment of satisfaction of the judgment does not matter. The correspondence summarized above shows plaintiff‘s counsel was prepared to accept a final payment of $17,137.09 as full satisfaction of the judgment. Once defendant‘s check for that amount was honored, the judgment was fully satisfied, whether or not plaintiff later acknowledged it. (
CONCLUSION
Plaintiff‘s motion for costs and fees was timely as to attorney fees incurred opposing defendant‘s appeal from the judgment, but untimely as to fees incurred enforcing the judgment through the separate fraudulent transfer action. The lower courts and parties have not addressed the numerical division of fees into these categories, and we express no view on the subject. Nor do we address the question, which the Court of Appeal did not reach, of whether the amount of fees awarded for opposing the appeal was unreasonable. Finally, we leave for resolution in the Court of Appeal plaintiff‘s request for costs and attorney fees incurred in this appeal.
The judgment of the Court of Appeal is affirmed in part and reversed in part and the matter is remanded to that court for further proceedings consistent with this opinion.
Cantil-Sakauye, C. J., Baxter, J., Chin, J., Corrigan, J., Liu, J., and Poochigian, J.,* concurred.
*Associate Justice of the Court of Appeal, Fifth Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.