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Tentative Ruling
Judge Colleen Sterne
Department 5 SB-Anacapa
1100 Anacapa Street P.O. Box 21107 Santa Barbara, CA 93121-1107

CIVIL LAW & MOTION

Community West Bank NA v. Gregory B. Friedman

Case No: 1379965
Hearing Date: Mon Mar 12, 2018 9:30

Nature of Proceedings: Motion Attorney Fees

 

CASE:        Community West Bank, N.A. v. Gregory B. Friedman, Case No. 1379965 (Judge Sterne)

 

HEARING DATE:                March 12, 2018

 

MATTER:                             

Motion for Recovery of Post-Judgment Attorneys’ Fees, Costs, and Accrued Interest

 

ATTORNEYS:                      

Susan M. Basham for Plaintiff Community West Bank, N.A.

 Gregory B. Friedman, Defendant in Pro Per

 

TENTATIVE RULING:        The motion of Community West Bank, N.A. for an award of post-judgment attorneys’ fees in the amount of $52,115.00, costs in the amount of $489.72, and accrued interest in the amount of $108,058.47 is granted. These additional sums shall be added to the judgment.

 

BACKGROUND:

 

This is an action for breach of a written guaranty agreement. In August 2007, plaintiff Community West Bank, N.A. (“CWB”) loaned the sum of $724,000.00 to Olive Investment, LLC (“Olive”) to purchase real property in Ventura. The loan was evidenced by a promissory note and secured by a deed of trust on the Ventura property. Defendant Gregory B. Friedman (“Friedman”) signed a personal guaranty of the note. When Olive later defaulted on the loan agreement, CWB made demand upon Friedman for payment under the guaranty, but Friedman failed to make any payments. On March 21, 2011, CWB filed its complaint against Friedman for breach of contract. The complaint sought damages in the amount of $724,000.00, together with interest and attorneys’ fees. Friedman later cross-complained against CWB for fraud, negligent misrepresentation, fraud in the inducement, and declaratory relief. On August 15, 2011, CWB filed a partial satisfaction of judgment on its complaint in the amount of $527,401.14 after foreclosing on the Ventura property.

 

On February 29, 2016, the court granted CWB’s motion for summary judgment. Judgment was entered for CWB on its complaint in the amount of $305,707.61 (exclusive of costs and attorney’s fees) and for CWB on Friedman’s cross-complaint. On April 21, 2016, CWB filed its memorandum of costs. Friedman did not file a motion to strike or tax costs and costs in the amount of $17,364.53 were added to the judgment. On July 11, 2016, the court granted CWB’s motion for attorneys’ fees in the amount of $511,639.00. CWB thereafter recorded abstracts of judgment in the total amount of $834,711.14 in Santa Barbara, Ventura, and Los Angeles Counties. To date, CWB has received no satisfaction of the judgment.

 

CWB now moves for an order awarding it post-judgment attorneys’ fees and costs associated with its attempt to enforce the judgment. CWB also seeks an award of post-judgment accrued interest. There is no filed opposition to the motion.       

 

ANALYSIS:

 

The prevailing party in litigation is entitled to the reasonable and necessary costs of enforcing the judgment, including reasonable attorneys’ fees if the underlying judgment included an award of attorneys’ fees. Code of Civil Procedure Section 685.040 provides, in relevant part:

 

“The judgment creditor is entitled to the reasonable and necessary costs of enforcing a judgment. 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.”

 

Section 1033.5 lists the costs allowable to the prevailing party and subsection (a)(10)(A) provides for the recovery of attorneys’ fees when authorized by contract. In the present case, the judgment included an award of attorneys’ fees based on the contractual agreement of the parties. The written guaranty signed by Friedman specifically provides for CWB’s right to recover attorneys’ and costs:

 

“ATTORNEYS’ FEES; EXPENSES. Guarantor agrees to pay upon demand all of the Lender’s costs and expenses, including Lender’s attorneys’ fees and Lender’s legal expenses, incurred in connection with the enforcement of this Guaranty. Lender may hire or pay someone else to help enforce this Guaranty, and Guarantor shall pay the costs and expenses of such enforcement. Costs and expenses include Lender’s attorneys’ fees and legal expenses whether or not there is a lawsuit, including attorneys’ fees and legal expenses for bankruptcy proceedings (including efforts to modify or vacate any automatic stay or injunction), appeals, and any anticipated post-judgment collection services. Guarantor also shall pay all court costs and such additional fees as may be directed by the court.”

 

(Motion, Ex. 2, Ex. A thereto, p. 2.)

 

On June 16, 2016, after the court had entered summary judgment in favor of CWB, Friedman recorded a grant deed whereby he purported to transfer certain residential property located at 3076 Calle de Marejada, Camarillo, California 93010 to his spouse, Melissa O. Friedman, in her capacity as a “married woman as her sole and separate property.” (Motion, pp. 4:26-5:1.) In anticipation of enforcing its judgment, CWD had already investigated Friedman’s assets and had determined that the Camarillo property was Friedman’s most valuable asset subject to a potential writ of execution. (Motion, p. 4:23-26.) On September 2, 2016, to thwart Friedman’s attempt to put the Camarillo property beyond its reach, CWB filed a complaint in Ventura County against the Friedmans for fraudulent transfer of real property, Community West Bank, N.A. v. Melissa O. Friedman and Gregory B. Friedman, Ventura County Superior Court Case No. 56-2016-00486160-CU-OR-VTA. (Motion, p. 5:1-3.) On February 21, 2017, the court entered a default judgment in favor of CWB. The court found that the grant deed between the Friedmans was fraudulent, and void, and that the Camarillo property was subject to payment of the CWB judgment. The court also enjoined the Friedmans from further transferring or disposing of the property. (Motion, Ex. 3.)

 

CWB incurred $36,470.00 in attorneys’ fees in the fraudulent transfer action. (Basham Dec., ¶3, Ex. A.) In addition, during the months after the court granted CWB’s summary judgment motion, CWB incurred $15,645.00 in attorneys’ fees associated with other post-judgment enforcement activities, including recording abstracts of judgment in Santa Barbara, Ventura, and Los Angeles Counties, as well as legal research and investigation. (Ibid.) The total post-judgment attorneys’ fees incurred to date are $52,115.00. (Ibid.) CWB was represented by the law firm of Price, Postel & Parma, LLP in all aspects of its post-judgment enforcement efforts. (Basham Dec., ¶1.) Shereef Moharram and Susan M. Basham were the attorneys primarily responsible for the firm’s work on the matter. (Ibid.) Between June 2016 and January 2018, Mr. Moharram and Ms. Basham spent a total of 148.2 hours in the enforcement of CWB’s rights. (Basham Dec., ¶4, Ex. A.) Price, Postel & Parma, LLP charged $350 per hour for the services rendered to CWB, which was a negotiated, reduced rate from the firm’s customary billing rates of $425-$465 per hour for similar work. (Basham Dec., ¶6.)

 

Under California law, where the prevailing party on a contract action is entitled to reasonable attorneys’ fees, the courts generally determine the “reasonableness” of the fees by applying the lodestar method of calculation, which involves multiplying the number of hours worked by a reasonable hourly rate. PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095. As stated in PLCM:

 

“California courts have consistently held that the computation of time spent on a case and the reasonable value of that time is fundamental to a determination of an appropriate attorneys’ fee award. [Citation.] The reasonable hourly rate is that prevailing in the community for similar work.”

 

Ibid.

 

The court finds that the post-judgment time spent by CWB’s attorneys was reasonable and necessary to defeat Friedman’s fraudulent transfer of the Camarillo property and to protect CWB’s interests in recovering its monetary judgment. Accordingly, CWB is awarded post-judgment attorneys’ fees in the amount of $52,115.00. Based on the memorandum of costs after judgment and declaration of accrued interest filed by CWB on February 8, 2018, CWB is also awarded post-judgment costs in the amount of $489.72 and accrued interest in the amount of $108,058.47.

 
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