Lower Court Erroneously Believed Post-Judgment Enforcement Motion Was Under Statute Allowing For Fees.
Fee entitlement is always a threshold issue in attorney’s fees proceeding. It was no less the case in Cardona v. Licher Direct Mail, Inc., Case No. B254783 (2d Dist., Div. 2 Aug. 6, 2015) (unpublished).
There, a judgment creditor (J/C) served an earnings withholding order on judgment debtor’s (J/D’s) presumed employer. Later, J/C filed a motion to impose third party liability on the presumed employer and employer’s president for noncompliance with the earnings withholding order. The lower court granted the motion, ordering the employer and employer’s president to pay certain moneys on the order and an additional $5,000 in attorney’s fees pursuant to CCP §701.020(c).
The fee order was reversed for lack of statutory authority upon which to hinge such a recovery.
The problem was that J/C moved to impose third party liability on the employer and employer’s president based on a third party’s noncompliance with a “writ of execution and a notice of levy”—with this being a separate and distinct post-judgment enforcement method from an earnings withholding order. So, J/C moved under the wrong statute, but should have moved under section 706.154. Although CCP § 706.154 does contain a provision empowering a court to impose liability upon a third party that does not comply with an earnings withholding order, and that is the provision which did allow for the relief sought by J/C, section 706.154—unlike section 701.020(c)—does not have fee entitlement language. So, without any statutory basis for the award, the American Rule barred recovery of attorney’s fees.