Recovery Not Found Excessive Given Judgment Debtor’s Obstructionist Activities, With Success Not A Factor Under CCP § 685.070.
An appellate court’s overall perception of a litigant—in a word, credibility—is frequently focal as far as the result being reached. That proved very true in the next case, Kerper v. Sauer, Case No. D067430 (4th Dist., Div. 1 July 24, 2015) (unpublished).
There, a doctor was a judgment debtor, after losing a professional negligence cross-complaint against brokers he hired to sell certain real estate. (Obviously, there was a fees clause in the broker retention agreement, with a lower stage fee award clocking in at $35,372 plus a compensatory recovery of $15,271.) Well, after the judgment was assigned by individual agents to the brokerage company, the judgment creditor took 6 post-judgment examinations and attended 6 court hearings, unsuccessfully obtaining a receiver but having a contested hearing over a $500,000 undisclosed bank account.
The lower court was presented with a detailed motion for postjudgment enforcement fees by judgment debtor, reducing the request by about $26,500 (excising out time incurred 2 years before the motion, which coincided with the applicable limitations period in CCP § 685.080) but still awarding a little over $150,000 in fees against doctor.
Doctor’s appeal did not change the result. Doctor made no specific objections to line item entries in detailed billing submissions, so there was no adequate record to overturn on this basis. Also, CCP § 685.070, the post-judgment enforcement fee provision, does not require success as a factor. Finally, the failure to consider that judgment creditor had hired an attorney on a contingency basis was not prejudicial given that this is usually a basis for an enhancement rather than a reduction.
The decision put stock in the perception that judgment debtor had made things very difficult, so that the litigiousness was a factor which influenced the ultimate outcome in our reading of Kerper.