Fate Is In Your Hands, Oh Judgment Creditor Appealing Judgment Offset Order Under CCP § 473–Acknowledge Satisfaction or Risk Fees.
The First District, Division 1 in Zocca v. Zocca, Case No. A130701 (1st Dist., Div. 1 Mar. 6, 2012) (unpublished)–think this is a family rite/fight, and you are right, being the latest appeal arising from more than 25 years of litigation between two brothers and one of the brother’s wives–teaches a great object lesson to a judgment creditor believing that an offset order against a judgment was incorrect. Acknowledge satisfaction of the judgment and then appeal; don’t stay cantankerous, refuse to acknowledge satisfaction of (erroneous, you think) judgment, and be subjected to statutory attorney’s fees for failing to acknowledge a satisfaction of judgment after losing the appeal. (CCP § 724.080 has a mandatory fee-shifting provision requiring an award of fees to a prevailing party winning the appeal of an acknowledgment of satisfaction order, one way or the other.)
In this one, one of the brothers won an appeal affirming a lower court motion requiring the other brother to execute and deliver a satisfaction of judgment based on a prior offset order. Winning brother on appeal sought an award of attorney’s fees under section 724.080 of $44,152.50, but was awarded $32,000 instead. Losing brother appealed the fee order.
No success on appeal.
Loser’s argument that the acknowledgment satisfaction proceeding was stayed on appeal did not win under three automatic stay exceptions contained in Code of Civil Procedure sections 917.3, 917.2, and 917.6, all of which do not stay enforcement directing the execution or delivery of either instruments or documents. Loser made a convoluted argument that section 724.080 would encourage judgment debtors to pay and somehow use 724.080 to seek fees on appeal; however, this made no sense because there would be no reason not to execute a satisfaction acknowledgment if the judgment was satisfied. Loser then argued that he had a “Hobbesian choice” of refraining from an appeal and becoming liable for fees if he proceeded and lost. Not so, said the appellate panel–after all, loser’s execution of a satisfaction acknowledgment under court compulsion did not waive his right to appeal the denial of the judgment offset motion that loser so despised. Finally, the trial court’s 27% reduction in the fee request was reasonable and showed an exercise of discretion, especially since the loser, not the winner, “initiated the appeal and controlled its scope” with respect to the mandatory fee grant of section 724.080.
BLAWG BONUS:
Mikado.
See how the Fates their gifts allot,
For A is happy — B is not.
Yet B is worthy, I dare say,
Of more prosperity than A!Ko-Ko, Pooh-Bah & Pitti-Sing.
Is B more worthy?
Katisha.
I should say
He’s worth a great deal more than A.All.
Yet A is happy!
Oh, so happy!
Laughing, Ha! ha!
Chaffing, Ha! ha!
Nectar quaffing, Ha! ha! ha!
Ever joyous, ever gay,
Happy, undeserving A!
Ever joyous, ever gay,
Happy, undeserving A!Ko-Ko, Pooh-Bah & Pitti-Sing.
If I were Fortune — which I’m not —
B should enjoy A’s happy lot,
And A should die in miserie —
That is, assuming I am B.