HYUNDAI MOTOR AMERICA, Petitioner, v. THE SUPERIOR COURT OF ORANGE COUNTY, Respondent; ADAM ROSEN, Real Party in Interest.
No. G051279
Fourth Dist., Div. Three.
Mar. 20, 2015.
A petition for a rehearing was denied April 8, 2015, and the petition of real party in interest for review by the Supreme Court was denied June 24, 2015, S225991.
235 Cal. App. 4th 418
Rylaarsdam, Acting P. J., Aronson, J., and Thompson, J.
COUNSEL
No appearance for Respondent.
Anderson Law Firm and Martin W. Anderson for Real Party in Interest.
OPINION
THE COURT.*— “Nature, not judges, should be in charge of making mountains out of mole hills.” (Crum v. City of Stockton (1979) 96 Cal.App.3d 519, 524 [157 Cal.Rptr. 823] (conc. & dis. opn. of Reynoso, J.).)
This writ petition came to this court on a request by petitioner Hyundai Motor America (Hyundai) to stay a scheduled judgment debtor examination of its president and chief executive officer over a dispute regarding an attempt by real party in interest Adam Rosen (Rosen) to collect supposed postjudgment interest of $462.50 on an attorney fee award of $42,203.
There is a short answer to Rosen‘s claim for postjudgment interest: the attorney fee order was filed months before the entry of the final judgment in this matter. By law, postjudgment interest accrues in lemon law cases at the time the final judgment is entered. (
I
STATEMENT OF FACTS AND PROCEDURAL HISTORY
A. Hyundai‘s Statutory Offer and First Payment of $36,484 to Rosen
In July 2010, Rosen bought a 2010 Hyundai Tucson for $29,455. In January 2013, Rosen filed a lemon law action against Hyundai under the Song-Beverly Consumer Warranty Act (
In August 2013, Hyundai served Rosen with a statutory offer to compromise pursuant to
Rosen filed a notice of acceptance, but also applied for the entry of a judgment against Hyundai. Rosen submitted a proposed judgment to respondent court for its signature. Hyundai objected, claiming a
On October 15, 2013, respondent court sustained Hyundai‘s objection and declined to sign Rosen‘s proposed judgment. Respondent court determined
On January 24, 2014, Hyundai submitted a check to Rosen in the amount of $24,659, as well as a lien payoff check, in exchange for Rosen‘s execution of the necessary documents to transfer the vehicle back to Hyundai. Rosen‘s counsel declined to accept the tender unless it was “unconditional.” Counsel voided the check and returned it to Hyundai.
In March 2014, the parties stipulated to allow respondent court to decide the following issues by motion: (1) Rosen‘s reasonable attorney fees and reasonable costs under the
On April 2, 2014, Hyundai tendered a new check for $26,579 to Rosen and another check to the lienholder for $9,905, for a total payment of $36,484. Rosen accepted the check and surrendered the vehicle.
B. The Parties’ Dispute on Interest and Attorney Fees on the First Payment of $36,484 to Rosen
In May 2014, Rosen moved for an order to award him attorney fees and costs of $60,536, and an additional award of interest of $1,431. Rosen sought interest at an annual rate of 10 percent from the date he accepted Hyundai‘s
On July 31, 2014, respondent court held a hearing on Rosen‘s motion for attorney fees and interest. The court, by unsigned minute order, awarded Rosen $42,203 in attorney fees and costs, and denied Rosen‘s request for interest on the
On September 24, 2014, Rosen filed a notice of appeal from the July 31, 2014 minute order. (Rosen v. Hyundai Motor America (G050760, app. pending).) On October 27, 2014, this court issued an order informing Rosen that it was considering dismissing his appeal “because a minute order from the trial court dismissing a case is not an appealable order. An appeal may be taken only from the subsequent judgment of dismissal signed by the trial court. (
C. Hyundai‘s Second Payment of $42,203 to Rosen and the Parties’ Dispute over Interest and Attorney Fees on the Second Payment
On September 8, 2014, Hyundai submitted a check for $42,203 as payment for the attorney fees and cost award in the July 31, 2014 minute order. Rosen‘s counsel accepted the check, but claimed it was short by $462.50, which counsel asserted was the amount of postjudgment interest from the date of the minute order. Counsel explained that he applied Hyundai‘s tender to interest first and then to principal, leaving $462.50 in principal still due and owing, along with interest and enforcement costs.
On September 19, 2014, Rosen filed an order for Hyundai‘s president, Dave Zuchowski, to appear for a judgment debtor‘s examination on October 23, 2014. Rosen claimed that Hyundai owed accrued interest of $462.50, and sought additional enforcement fees and costs of $662.
On October 6, 2014, Hyundai filed a motion to strike Rosen‘s costs memoranda because “[t]here is, and never was, any ‘judgment’ in this case.” On December 18, 2014, respondent court, by minute order, denied Hyundai‘s motion to strike. Respondent court determined that its July 31, 2014 minute order was enforceable as a money judgment, and bore postjudgment interest of 10 percent per annum from July 31, 2014 onwards.
Rosen continued to file additional cost memoranda. By mid-December 2014, Rosen sought a total of $894 in accrued interest, and $11,752 in attorney fees and other collection costs. Rosen scheduled a new judgment debtor‘s examination of Hyundai‘s chief executive officer and president for January 15, 2015.
In its writ petition, Hyundai prayed that this court direct respondent court to vacate its December 18, 2014 minute order and any further enforcement efforts by Rosen, including the scheduled judgment debtor‘s examination.
On January 14, 2015, we granted Hyundai‘s stay request, and issued a Palma notice. (See Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 179 [203 Cal.Rptr. 626, 681 P.2d 893] (Palma).) Rosen filed an informal response, with supporting exhibits, on January 28, 2015.
NEITHER THE JULY 31, 2014 NOR THE AUGUST 29, 2014 ORDER IS A FINAL JUDGMENT THAT BEARS POSTJUDGMENT INTEREST.
Only final judgments bear postjudgment interest.
Courts have interpreted the statute to mean what it says: a judicial determination regarding a money award does not bear postjudgment interest until a final judgment is entered. “There can be no interest on a judgment prior to its rendition and entry.” (Jones v. World Life Research Institute (1976) 60 Cal.App.3d 836, 848 [131 Cal.Rptr. 674], italics omitted.)
In Pellegrini v. Weiss (2008) 165 Cal.App.4th 515, 532 [81 Cal.Rptr.3d 387] (Pellegrini), the Court of Appeal was called upon to determine the trigger point from which interest commenced to run on a $300,000 jury award of damages to the plaintiff arising from a failed real estate joint venture with the defendant. The jury returned with its verdict in July 2005, and the trial court entered judgment in October 2005, and vacated it and entered a new judgment in January 2006. Citing
The Song-Beverly Act bears out the need for a judgment (or its equivalent) as a final disposition of the litigation to which the attorney fee award attaches.
What is the final judgment here? The final judgment is the judgment of dismissal filed and entered on November 21, 2014. Because the judgment of dismissal serves as the final disposition of Rosen‘s action against Hyundai, it satisfies the requirement in the Song-Beverly Act that any fee award be part
Wohlgemuth is directly on point. In Wohlgemuth, the Court of Appeal affirmed an award of attorney fees and costs to a buyer who dismissed his action following his acceptance of the manufacturer‘s
Rosen himself admits to as much. In his opposition to Hyundai‘s writ petition, he states: “The final judgment in this action was entered on November 21, 2014.” By that time, Hyundai had fully paid all the amounts awarded by respondent court, including the direction in the unsigned July 31, 2014 minute order for attorney fees. There being no final judgment for damages, costs, or fees, there is no basis upon which to start the calculator running for postjudgment interest.
Rosen contends, and respondent court held, that there is an earlier final judgment to which postjudgment interest attaches: the July 31, 2014 minute order which adjudicated the amount of attorney fees to which Rosen was entitled under the Song-Beverly Act. Rosen relies on the fact that California‘s Enforcement of Judgments Law (EJL;
Rosen and respondent court are mistaken. The EJL does not automatically convert every statutory minute order, such as the July 31, 2014 minute order, into an enforceable judgment. “[L]itigants do not have license to substitute the word ‘order’ everywhere the word ‘judgment’ appears in the
In order to be an enforceable judgment for attorney fees under the Song-Beverly Act, to which postjudgment interest begins to run, the judgment or order must finally dispose of the rights of the parties in the action. (See
The July 31, 2014 minute order does not do so. The order itself recognized its own inherent limitations because it also directed the dismissal of Rosen‘s action against Hyundai with prejudice. That is because an unsigned minute order itself cannot serve as the judgment of dismissal. (
Following the July 31, 2014 minute order, Rosen submitted a proposed order for the court‘s signature, but he omitted the court‘s directive in the minute order about dismissing the lawsuit with prejudice. While respondent court signed the proposed order on August 29, 2014, the order left Rosen‘s action against Hyundai in limbo, without a final disposition.
Not until November 21, 2014, did respondent court sign and enter a final dismissal of the underlying litigation. And that event only occurred after this court ordered Rosen to do so on pain of dismissal of his appeal in Rosen v. Hyundai Motor America, supra, G050760.
Under these circumstances, we cannot view either the July 31, 2014 minute order or the subsequent August 29, 2014 order as a final judgment to which postjudgment interest begins to run. Rosen‘s counsel improperly deducted postjudgment interest from Hyundai‘s September 8, 2014 payment for attorney fees and costs because there was no final judgment until November 21, 2014.
III
A PEREMPTORY WRIT IN THE FIRST INSTANCE IS APPROPRIATE BECAUSE OF HYUNDAI‘S CLEAR ENTITLEMENT TO RELIEF.
Hyundai lacks any plain, speedy or adequate remedy at law. Following our Palma notice, Rosen filed a 24-page informal response and a 215-page set of supporting exhibits. Hyundai‘s entitlement to relief is “obvious” and “entirely clear.” (Ng v. Superior Court (1992) 4 Cal.4th 29, 35 [13 Cal.Rptr.2d 856,
The procedural setting in this writ proceeding is similar to the procedural setting in Ducoing Management, Inc. v. Superior Court (2015) 234 Cal.App.4th 306 [183 Cal.Rptr.3d 548] (Ducoing), where a different panel of this court issued a peremptory writ in the first instance, following a Palma notice and the real parties in interest‘s opposition. In Ducoing, like here, the real parties in interest initiated enforcement proceedings, including a scheduled judgment debtor‘s examination, which gave rise to a compelling need for an expedited decision. (See Fox Johns Lazar Pekin & Wexler, APC v. Superior Court (2013) 219 Cal.App.4th 1210, 1216 [162 Cal.Rptr.3d 571] [writ of mandate to resolve proper scope of proposed judgment debtor‘s examination against third party].)
A cautionary note about litigation tactics. As we have noted, this proceeding came to us on Hyundai‘s emergency request to stay the scheduled judgment debtor‘s examination of its chief executive officer in connection with an alleged “debt” of $462.50. We cannot fathom any legitimate reason for such a statutory procedure under the circumstances of this case, given the minimal amount and questionable provenance of the “debt,” and Hyundai‘s obvious ability to pay.
Assuredly, such a tactic was designed to get Hyundai‘s attention. But it had the unintended effect of attracting our attention as well, giving rise to the extraordinary remedy of a peremptory writ in the first instance. We doubt this is a wise use of anyone‘s resources.1
DISPOSITION
Let a peremptory writ of mandate issue in the first instance directing respondent court to vacate its order of December 18, 2014 denying petitioner‘s motion to strike costs, and to enter a new and different order granting