Rogers v. Nguyen (In re Ribal)Rogers v. Nguyen (In re Ribal)
I
FACTS
The underlying facts are set forth in this court's two prior opinions, In Re Domestic Partnership of Ribal and Nguyen (Mar. 4, 2015, G049594)
When this was memorialized in a proposed judgment drafted by Rogers, however, the "double damages" of $159,982 were listed separately from the $79,991 amount. While the judgment does not state the $159,982 was additive rather than subsuming the $79,991
The court signed the proposed judgment on May 27, 2015 (the judgment). The record reflects that Rogers was subsequently awarded $32,538 in costs and $64,075 in attorney fees. This court affirmed the judgment on appeal.
On remand, Rogers moved for an award of $45,807 in attorney fees incurred in enforcing the underlying judgment. Rogers argued that to collect the judgment, she had been required to garnish Nguyen's wages, levy his bank accounts, and obtain various writs in Hawaii and California. In opposition, Nguyen stated the principal amount of the judgment was $179,982. Thus, he argued the judgment had been satisfied based on what he had paid thus far. Rogers could not, he argued, recover enforcement fees under the relevant statute.
The trial court granted the motion for fees. The court noted the two competing theories as to the amount of the underlying judgment: "In his original opposition to this motion, and in his supplemental papers, Nguyen argues the judgement had been fully satisfied (and more than satisfied) because
The court continued: "Nguyen's position has some support in a Minute Order issued by the trial judge on 01/05/15, in which the judge calculated Nguyen's total liability to be $179,982 ... 'Plus costs and attorneys' fees to be determined.' That calculation also appears consistent with the judge's final Statement of Decision issued 04/08/15. However, the actual Judgment entered 05/27/15 appears to depart from those earlier calculations, or at least suggests they were ambiguous. The Judg[ ]ment instead indicates the 'Double Damages' of $159,982 ... were in addition to the 'Compensatory Damages' of $79,991 ... (after offset). The court is now persuaded that this motion is not a proper mechanism to reexamine the Judgment. Whatever potential inconsistency may exist between the trial judge's earlier statements and the ultimate Judgment, this is not a motion to amend, correct, or vacate the Judgment. This is not an appeal from the Judgment (though one was taken by Nguyen)."
Nguyen now appeals.
II
DISCUSSION
Nguyen's Briefing
Rogers takes pains to point out that Nguyen's brief (he submitted only an opening brief) is, to put it plainly, a disaster. We agree; it is largely a cobbled together cut-and-paste of treatise law. Nonetheless, it is our role to review the arguments he has attempted to make and evaluate them to the best of our ability based on the record before us. While we have the discretion to deem certain arguments waived based on poor briefing, we are not required to do so. Here, Nguyen's arguments were clear and intelligible enough for Rogers to understand and respond to in her own brief. Thus, we deem it in the interests of justice to address Nguyen's arguments on the merits.
Standard of Review and Relevant Law
While the amount of an attorney fee award is left to the trial court's sound discretion, the entitlement to fees is a matter we review under the de novo
Judgment creditors may claim authorized costs incurred while enforcing a judgment, and when attorney fees are awarded after trial, those amounts include attorney fees. (§§ 685.040, 685.090.) A motion for such fees, however, must be made before the judgment is satisfied in full. ( § 685.080, subd. (a).)
Nguyen's argument here is essentially the same as it was below: 1) Rogers misstated the amount of the judgment; 2) the record demonstrates the correct amount of the judgment was satisfied before the attorney fee motion was filed; and 3) accordingly, Rogers cannot collect attorney fees for the enforcement of the judgment under section 685.080, subdivision (a). We begin with the amount of the underlying judgment.
The court's statement of decision and the 2015 order, both of which served as the basis for the judgment, stated an identical amount of "total" damages owed by Nguyen: $179,982. Thus, Rogers's claims that the total was $259,973 is plainly wrong, and her interpretation of the judgment is not supported by substantial evidence.
Rogers argues that Nguyen did not establish the amount of the underlying judgment was $179,982, and "fails to meet his burden even if he was correct." She is mistaken. It takes nothing more than a reading of the 2015 order and the statement of decision to reach the conclusion that the amount of the underlying judgment was $179,982, and not $259,973 as she claims. Nothing could be any clearer than the court's two distinct statements regarding the "total" amount of the underlying judgment.
Rogers contends that under the general principles governing a writing, the language of a judgment governs its interpretation unless the proposed interpretation is absurd. ( Colvig v. RKO Gen. (1965)
At oral argument, Rogers's attorney, Cheryl L. Walsh, did not deny that the amount was trebled rather than doubled. Rather, she stated the propriety of
Probate Code section 859 states that a person who takes or otherwise disposes of property in a manner that constitutes financial elder abuse "shall be liable for twice the value of the property recovered." The statute also provides: "The remedies provided in this section shall be in addition to any other remedies available in law ...." ( Prob. Code, § 859.) Probate Code section 859 is punitive in nature, and "some version of this civil penalty statute has been operative since 1850." ( Estate of Kraus (2010)
Rogers's argument appears to be that because the last sentence of Probate Code section 859 states that the remedies in that section are "in addition to any other remedies," the amount due should be calculated by first assessing the amount of
Further, in the context of this case, arguing that a judgment for "double damages," as stated by the judgment itself , was actually an award of treble damages is, indeed, an absurd interpretation. Accordingly, it is entirely proper to look to the documents on which the judgment was based - the statement of decision and the 2015 order - to determine the correct amount of the judgment. That amount was $179,982 - double the damages award of $79,991, plus the $20,000 in additional damages for personal injury.
Rogers next contends that even if the amount Nguyen argues is correct, the total amount of the judgment, including fees, costs, and interests are added, the total amount of the judgment was much higher, and Nguyen fails to take those amounts into account when arguing the judgment was satisfied. But we
Further, according to that same filing, the most recent payments against the judgment were made in July 2017. The attorney fee motion was filed in December 2017. Thus, according to Rogers's own calculations, the judgment was satisfied at the time she filed the motion for attorney fees.
As we have noted, under section 685.080, subdivision (a), a motion for attorney fees incurred in collecting a judgment must be made before the judgment is satisfied. "[T]he statutory purpose of requiring that the motion for enforcement costs be brought 'before the judgment is satisfied in full' ( § 685.080, subd. (a) ) is to avoid a situation where a judgment debtor has paid off the entirety of what he believes to be his obligation in the entire case, only to be confronted later with a motion for yet more fees. [Citation.]" ( Lucky United Properties Investment, Inc. v. Lee (2010)
Award of Double Damages
Finally, Nguyen argues this court should modify the judgment by striking the double damages award altogether. Rogers is correct in stating that this court cannot review the merits of the judgment. That judgment is final, and this court lacks
DISPOSITION
The March 9, 2018 order granting Rogers $43,507.50 in attorney fees is reversed. Nguyen is entitled to his costs on this appeal.
WE CONCUR:
ARONSON, J.
IKOLA, J.
Notes
Subsequent statutory references are to the Code of Civil Procedure unless otherwise specified.
Because this opinion, unfortunately, includes a great number of numerical references, we have eliminated the pennies from the all amounts (with the exception of the attorney fee award at issue here) for the ease of the reader.
$79,991 doubled is $159,982.
Rogers is also correct that we cannot review any findings or decisions made in a separate action between the parties. That case is not the subject of this appeal, which is limited only to the order granting $43,507.50 in attorney fees.