GRADY v. DOWNEY VENTURE

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Court of Appeal, Second District, Division 5, California.

Elizabeth V. O'GRADY, et al., Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent. The DOWNEY VENTURE, Real Party in Interest.

No. B079234.

Decided: January 13, 1994

Goshgarian & Goshgarian, Mark Goshgarian, Woodland Hills, for petitioner. Shapiro, Posell, Rosenfeld & Close, Lisa K. Skaist, David M. Cohen, Los Angeles, for real party in interest. No appearance for respondent.

I. INTRODUCTION

Petitioner and defendant, Elizabeth O'Grady, in her individual capacity as a trustee of a trust declaration dated January 9, 1956, has filed a mandate petition challenging the respondent court's order denying a motion for an order directing the issuance of a writ of execution.   We conclude the respondent court should have granted the motion and issued a writ of execution.   We issue our writ of mandate directing that the writ of execution be issued.

II. FACTUAL AND PROCEDURAL MATTERS

None of the pertinent factual and procedural aspects of this case are in dispute.   On April 20, 1992, plaintiff, The Downey Venture, filed its verified first amended complaint for:  contract breach;  intentional and negligent interference with a contract and prospective economic advantage;  violations of the Organized Crime Control Act of 1970, commonly referred to as RICO pursuant to 18 United States Code section 1961, et seq.;   and declaratory relief.   On September 16, 1992, a summary judgment motion was granted.   The judgment directing dismissal of the complaint was entered on October 15, 1992.   Meanwhile, on October 20, 1992, defendant filed a motion for attorney fees.   The lease which was the subject of the present litigation contained an attorney fee clause.1  The motion sought an attorney fee award in the sum of $47,477.50.   Plaintiff opposed the motion contending that defendant was only entitled to an award of $38,847.50.   The trial judge only awarded defendant $46,025.00.   The trial judge awarded defendant, Timothy Watson, only $20,530.75.   Plaintiff filed its notice of appeal from the summary judgment on November 10, 1992.   On December 8, 1992, the judgment was amended to reflect defendant's costs and attorney fees in the sum of $47,159.50.   In other words, defendant's judgment consisted of an attorney fee award of $46,025 plus costs in the sum of $1,134.50.2

Defendant filed an application for issuance of a writ of execution in the amount of $46,025, the amount of the attorney fee award with the superior court clerk.   A deputy clerk refused to issue the writ of execution.   As a result, defendant filed a motion to compel the clerk to issue a writ of execution.   Plaintiff opposed the motion on the ground that a judgment for costs and attorney fees was stayed on appeal pursuant to Code of Civil Procedure sections 916 and 917.1.3  On September 9, 1993, the respondent court denied the motion to issue a writ of execution.   On October 19, 1993, defendant filed a petition for writ of mandate to compel the respondent court to issue a writ of execution.   On October 28, 1993, we issued an order to show cause and set this case for oral argument.   Plaintiff's appeal remains pending and will be orally argued and submitted in January, 1994.

III. DISCUSSION

The resolution of the present petition depends upon whether an award of attorney fees pursuant to Civil Code section 1717 is a routine cost.   If a Civil Code section 1717 attorney fee is a routine cost item, then the respondent court correctly refused to issue the writ of execution.   This is because sections 916 and 917.1 provide that a judgment for routine costs are stayed pending appeal.   If such an attorney fee award was a non-routine item of cost, then the respondent court should have issued the writ of execution because the automatic stay is inapplicable to the judgment in this case.

After a judgment is entered, a writ of execution is issued by the court clerk “upon application of the judgment creditor.”  (§ 699.510.)   Prior to and after the adoption of the Enforcement of Judgments Law in 1982 (§ 680.010 et seq.), the responsibility of the clerk to issue a writ of execution has been described as a “ministerial” act.  (Adams v. Bell (1933) 219 Cal. 503, 505, 27 P.2d 757;  Hellman v. Anderson (1991) 233 Cal.App.3d 840, 849, 284 Cal.Rptr. 830;  Da Arauje v. Rodriques (1942) 50 Cal.App.2d 425, 431, 123 P.2d 154.)   If the clerk refuses to issue the writ of execution, one of the remedies available for a judgment creditor is to make a motion to compel the clerk to comply with her or his ministerial duty.  (Adams v. Bell, supra, 219 Cal. at p. 505, 27 P.2d 757;  McFaddin v. H.S. Crocker Co. (1963) 219 Cal.App.2d 585, 592, 33 Cal.Rptr. 389.)   When a motion to compel the clerk to issue a writ of execution is denied, the correctness of the ruling may be challenged by a writ of mandate.  (De Garmo v. Superior Court (1934) 1 Cal.2d 83, 86, 33 P.2d 411;  Slater v. Superior Court (1941) 45 Cal.App.2d 757, 762–763, 115 P.2d 32.)

As will be noted, this case involves a question of statutory interpretation.   The standard of review in such cases was articulated by our Supreme Court in Bank of San Pedro v. Superior Court (1992) 3 Cal.4th 797, 800, 12 Cal.Rptr.2d 696, 838 P.2d 218, a case involving the effect of the automatic stay on appeal of a cost award for expert witness fees, as follows:  “The question before us is governed by statutes.   Our task is to determine the Legislature's intent.  [Citations.]  ‘We must begin with the words of the statute.’  [Citation.].”

Awards of routine costs are automatically stayed pending appeal.  Section 916, subdivision (a) states:  “Except as provided in Sections 917.1 to 917.9, inclusive, and in Section 116.810, the perfecting of an appeal stays proceedings in the trial court upon the judgment or order appealed from or upon the matters embraced therein or affected thereby, including enforcement of the judgment or order, but the trial court may proceed upon any other matter embraced in the action and not affected by the judgment or order.”  Section 917.1, subdivision (a) sets forth an exception to the rule in section 916, subdivision (a), which provides that the perfecting of an appeal stays the “judgment or order appealed from․”  Section 917.1, subdivision (a) states the exception pertinent to our discussion as follows, “The perfecting of an appeal shall not stay enforcement of the judgment or order in the trial court if the judgment or order is for money or directs the payment of money, whether consisting of a special fund or not, and whether payable by the appellant or another party to the action, unless an undertaking is given.”

Our Supreme Court has held that controlling decisional authority has consistently determined since 1893 that an award of costs is automatically stayed pending appeal.   In Bank of San Pedro v. Superior Court, supra, 3 Cal.4th at pages 800–801, 12 Cal.Rptr.2d 696, 838 P.2d 218, our Supreme Court held, “Costs of suit are awarded to the prevailing party in nearly every civil action or proceeding.   This reality arises from section 1032, subdivision (b), which states, ‘Except as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.’  (Italics added.)   We relied on this circumstance in construing the statutory antecedent of section 917.1 (former section 942):  ‘A judgment for costs is not the judgment directing the payment of money contemplated by section 942.   If such were the fact, a stay bond would be required in almost every conceivable case, when, to the contrary, it is only required in the four cases covered by sections 942 to 945 of the code [of Civil Procedure].’  [Citation.]   In other words, if a judgment for costs awarded under section 1032 were a money judgment within the meaning of section 917.1, virtually every judgment would be within the scope of section 917.1, and an undertaking would be required to stay every judgment pending appeal.   The exception in section 917.1 to the automatic stay provision of section 916 would cease to be an exception;  it would subsume the general rule.   Such a result could not have been consistent with the Legislature's intent.   We therefore have held that a judgment for costs alone was not a judgment directing the payment of money within the meaning of former section 942 (now section 917.1, subdivision (a)) and was therefore stayed without the need for an undertaking.  [Citations.]  This rule has become well established.   [Citation.]”  Our Supreme Court has emphasized that the only cost award that is stayed on appeal involve “routine costs.”  (Fn. omitted.)

In terms of whether an attorney fee award is a money judgment within the meaning of section 917.1, subdivision (a), Courts of Appeal have addressed the issue on various occasions with conflicting results.   In Chamberlin v. Dale's R.V. Rentals, Inc. (1986) 188 Cal.App.3d 356, 360–362, 232 Cal.Rptr. 785, Presiding Justice Kremer held that in determining the amount of an undertaking, the trial court must consider the amount of a Civil Code section 1717, subdivision (a) attorney fee award.   Our Supreme Court described the holding in Chamberlin as follows:  “Because the case was decided before the 1986 amendment to section 917.1 (which requires the inclusion of costs in a damages judgment when computing the amount of the undertaking), the question was whether the award of attorney fees under Civil Code section 1717 had to be included within the judgment in computing the amount of the undertaking.   The court concluded the then-existing rule that costs were not included for such purpose did not extend to the award of attorney fees.   ‘Unlike the costs involved in the early cases, such attorney fees are in the nature of a directly litigated issue rather than merely incidental to the judgment.   Further, attorney fees are not the type of costs involved in virtually every case.   Attorney fees are awarded only in limited situations.’  (Chamberlin v. Dale's R.V. Rentals, Inc., supra, 188 Cal.App.3d at p. 362 [232 Cal.Rptr. 785.])”  (Bank of San Pedro v. Superior Court, supra, 3 Cal.4th at p. 802, 12 Cal.Rptr.2d 696, 838 P.2d 218.)   Chamberlin, which construed section 917.1, stood for the proposition that attorney fees were not “the type of costs involved in virtually every case” and were “awarded only in limited situations.”  (Chamberlin v. Dale's R.V. Rentals, Inc., supra, 188 Cal.App.3d at p. 362, 232 Cal.Rptr. 785.)

Later, in Nielsen v. Stumbos (1990) 226 Cal.App.3d 301, 305, 276 Cal.Rptr. 272, the Court of Appeal concluded:  “The language of section 1717 and recent legislation affecting related statutes leads us to conclude that contractual attorney fees awarded a party who recovers no money damages are to be treated as any other incidental cost of litigation for purposes of the automatic stay provisions of Code of Civil Procedure section 916.   Accordingly, no undertaking need be posted by the plaintiff, the appellant here.”   The Nielsen court distinguished Chamberlin on the theory in that case there was a judgment for not only attorney fees, but also money damages.   (Ibid.)  Rather, the court in Nielsen concluded that when there was merely an award of attorney fees and costs, but no money judgment, the automatic stay applied.  (Ibid.)  In Nielsen, the court did not engage in any discussion in terms of whether an attorney fee award was routine.   As will be noted, our Supreme Court later determined that such a distinction is the crucial question in deciding whether an item of cost is subject to the automatic stay.

In Banks v. Manos (1991) 232 Cal.App.3d 123, 127–131, 283 Cal.Rptr. 318, the court confronted a situation where fees had been awarded both pursuant to Civil Code section 1717 and section 128.5.   The court concluded that fees awarded pursuant to section 128.5 were not “routinely awarded” costs.   In discussing the issues, the Banks court noted in obiter dictum, “A judgment for damages plus attorney's fees must be bonded, because attorney's fees, unlike costs, are not routinely a part of most judgments.  [Citation.]”  (Id. at p. 127, 283 Cal.Rptr. 318.)   However, at a later point in obiter dictum, the court stated, “We do not believe that attorney's fees imposed as sanctions are routinely authorized by statute in the same sense as contractual attorney's fees or other attorney's fees expressly authorized by statute.”   (Id. at p. 128, 283 Cal.Rptr. 318, original italics.)   The court concluded that an attorney fee award pursuant to section 128.5 was “more like a money judgment compensating a party for harmful conduct than it is like an award of fees as part of the costs of the lawsuit.”  (Id. at pp. 128–129, 283 Cal.Rptr. 318.)   Accordingly, Banks contains conflicting dicta as to whether an award of attorney fees pursuant to Civil Code section 1717 is a routine part of most judgments.

In Pecsok v. Black (1992) 7 Cal.App.4th 456, 458, 9 Cal.Rptr.2d 12, the court confronted the question of whether an award of attorney fees which were “ ‘litigation expenses[ ]’ ” awardable under the terms of a contract were automatically stayed on appeal pursuant to section 916.   The plaintiffs in Pecsok had unsuccessfully filed suit against defendants who were awarded their “ ‘litigation expenses.’ ”   After defendants attempted to execute on the judgment, plaintiffs sought supersedeas.   Defendants relied upon two arguments.   First, they cited the holding in Chamberlin v. Dale's R.V. Rentals, Inc., supra, 188 Cal.App.3d at pp. 360–362, 232 Cal.Rptr. 785, which held that an award of attorney fees was a “non-routine” cost which were not subject to the automatic stay.   Additionally, defendants relied upon Banks v. Manos, supra, 232 Cal.App.3d at pages 127–129, 283 Cal.Rptr. 318, which held that a sanction award was a “non-routine” cost which must be bonded or subject to some other form of undertaking because it was not subject to the automatic stay.  Pecsok rejected the foregoing analysis appearing in Chamberlin and Banks.   Rather, relying upon Nielsen v. Stumbos, supra, 226 Cal.App.3d at pages 303–305, 276 Cal.Rptr. 272, the court in Pecsok concluded:  “Expert witness fees ․ are to be treated as costs for purposes of the section 916 automatic stay”;  there was “neither authority nor reason for a recognition of a distinction between costs that are ‘routine’ as opposed to ‘non-routine[ ]’ ”;  and all costs “shall be treated alike for purposes of applying section 916․”  (Pecsok v. Black, supra, 7 Cal.App.4th at pp. 461–462, 9 Cal.Rptr.2d 12.)

However, after all of these Court of Appeal decisions, in 1992, our Supreme Court issued its opinion in Bank of San Pedro v. Superior Court, supra, 3 Cal.4th at pages 802–805, 12 Cal.Rptr.2d 696, 838 P.2d 218.   The Supreme Court disapproved of Pecsok insofar as it was “contrary to our decision in the present case.”  (Id. at p. 803, fn. 4, 12 Cal.Rptr.2d 696, 838 P.2d 218.)   Our Supreme Court approved of the distinction between “routine” and “non-routine” costs.   The court in Bank of San Pedro concluded that a “non-routine” cost would not be subject to the automatic stay of section 916.   (Id. at p. 802, 12 Cal.Rptr.2d 696, 838 P.2d 218.)   Further, while discussing the Court of Appeal opinion, which was the subject of the grant of review, in Bank of San Pedro, our Supreme Court made the following comment:  “The Court of Appeal in this case correctly explained that, ‘Expert witness fees, like attorneys' fees, are not ordinarily a part of costs awarded at trial.   Further, the award of expert witness fees (1) is not the type of cost included in virtually every case and (2) was a directly litigated issue, as opposed to being an incidental matter.   Specifically, the record reflects that two separate hearings were conducted, involving two motions.   Formal discovery was also undertaken relating to this issue.   Additionally, expert witness fees are rarely awarded, and then only when the special factual prerequisites of section 998, subdivision (c) have been fulfilled.   It would be a distortion of reality to classify expert witness fees as [routine] costs.’   We agree.”  (Id. at p. 803, 12 Cal.Rptr.2d 696, 838 P.2d 218, fn. omitted.)   Our Supreme Court could not have made it clearer that it viewed attorney fees as non-routine costs just like expert witness fees, neither of which are subject to the automatic stay.

Civil Code section 1717 costs are not routine.   They only arise in situations where a contract is involved.   Further, they are limited to cases where the contract provides for attorney fees.   That is not a routine event occurring in California litigation.   The general rule is that attorney fees are not awarded in civil litigation.  (Gray v. Don Miller & Associates, Inc. (1984) 35 Cal.3d 498, 504, 198 Cal.Rptr. 551, 674 P.2d 253.)   An award of attorney fees pursuant to Civil Code section 1717 never occurs in tort litigation.  (Stout v. Turney (1978) 22 Cal.3d 718, 730, 150 Cal.Rptr. 637, 586 P.2d 1228.)   Further, if there is not a provision in an agreement allowing for an attorney fee award, such is not available pursuant to Civil Code section 1717 even in contract litigation.  (Gray v. Don Miller & Associates, Inc., supra, 35 Cal.3d at p. 504, 198 Cal.Rptr. 551, 674 P.2d 253;  § 1021.)   Moreover, the amount of fees is not automatic.   The sum to be paid is left to the court's discretion.  (Cf. Bank of San Pedro v. Superior Court, supra, 3 Cal.4th at p. 803, 12 Cal.Rptr.2d 696, 838 P.2d 218;  Montgomery v. Bio–Med Specialties, Inc. (1986) 183 Cal.App.3d 1292, 1296–1298, 228 Cal.Rptr. 709.)   Also, Civil Code section 1717 provides only one of several avenues by which attorney fees can be awarded.  (Gray v. Don Miller & Associates, supra, 35 Cal.3d at p. 505, 198 Cal.Rptr. 551, 674 P.2d 253;  Serrano v. Priest (1977) 20 Cal.3d 25, 34–37, 141 Cal.Rptr. 315, 569 P.2d 1303.)   Additionally, in the present case, the issue of fees was separately and directly litigated.   After the summary judgment request was resolved, a separate noticed motion for attorney fees was the subject of a post-judgment hearing.  (Cf. Bank of San Pedro v. Superior Court, supra, 3 Cal.4th at p. 803, 12 Cal.Rptr.2d 696, 838 P.2d 218.)   We agree with Presiding Justice Kremer's analysis in Chamberlin v. Dale's R.V. Rentals, Inc., supra, 188 Cal.App.3d at page 362, 232 Cal.Rptr. 785 that “attorney fees are not the type of costs involved in virtually every case” and “are awarded only in limited situations.”

Further, to interpret section 917.1 to provide that the automatic stay does not apply to an award of attorney fees in the sum of $46,025.00 is entirely consistent with well established statutory interpretation principles.   In Bank of San Pedro v. Superior Court, supra, 3 Cal.4th at pages 803–804, 12 Cal.Rptr.2d 696, 838 P.2d 218, our Supreme Court held:  “We must not lose sight of the fact that we are dealing with a statutory question and that we must attempt to reach a result comporting with the Legislature's intent.   [Citation.]  The Court of Appeal's decision in this case achieves this goal in several respects.  [¶] First, a judgment directing the payment of expert witness fees is—by any practical or semantic measure—a judgment directing the payment of money and is therefore consistent with the language of section 917.1, subdivision (a) which provides that such a judgment is not automatically stayed.   A judgment within the plain language of the statute is presumptively within the Legislature's intent absent a showing to the contrary.”  (Original italics.)   In the present case, the Civil Code section 1717 attorney fee award in the sum of $46,025.00 is “by any practical or semantic measure—a judgment directing the payment of money․”  (Id. at p. 804, 12 Cal.Rptr.2d 696, 838 P.2d 218.)   As such, it is “consistent with the language of section 917.1, subdivision (a) which provides that such a judgment is not automatically stayed.”  (Id. at p. 804, 12 Cal.Rptr.2d 696, 838 P.2d 218, original italics.)   There is nothing in the legislative history of Civil Code section 1717 which suggests that the Legislature intended that an attorney fee award would be automatically stayed.

Quite obviously, a sound argument can be made that because Civil Code section 1717 awards are recoverable as costs, the Legislature therefore inferentially intended that they be stayed pending appeal.   The argument in this regard is as follows.   Section 1032, subdivision (b), states, “Except as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.”   Section 1033.5, subdivision (a)(10) states, “The following items are allowable as costs under Section 1032:  [¶] ․ (10) Attorney fees, when authorized by either of the following:  [¶] (A) Contract.”   The second paragraph of section 1033.5, subdivision (c)(5) states, “Attorney's fees awarded pursuant to Section 1717 of the Civil Code are allowable costs under Section 1032 as authorized by subparagraph (A) of paragraph (10) of subdivision (a).”   It can be logically asserted that the presence of attorney fee awards pursuant to Civil Code section 1717 in section 1033.5 is indicative of a legislative intent to treat such matters as costs.   However, it must be remembered that expert witness fees are specifically identified in section 1033.5, subdivision (a)(8) as an allowable costs when “ordered by the court.”   In Bank of San Pedro, our Supreme Court held that expert witness fees were “a judgment that ‘directs the payment of money’ within the scope of section 917.1, subdivision (a) and that such judgment is therefore not automatically stayed by the perfecting of an appeal.”  (Bank of San Pedro v. Superior Court, supra, 3 Cal.4th at p. 805, 12 Cal.Rptr.2d 696, 838 P.2d 218.)   The mere presence of expert witness fees in section 1033.5 did not transform them into routine costs subject to the automatic stay.   Accordingly, the fact that Civil Code section 1717 attorney fees are likewise set forth in section 1033.5 does not mandate the conclusion that they are ordinary costs which are automatically stayed on appeal.

To sum up, Civil Code section 1717 attorney fee awards are not ordinary costs.   They are non-routine costs.   As such, they are not subject to the automatic stay provisions of section 917.1.   Accordingly, defendant is entitled to the issuance of a writ of execution.4

IV. DISPOSITION

A peremptory writ of mandate is to issue directing the respondent court to vacate its order of September 9, 1993, and enter a new and different order granting that motion.   Petitioner and defendant Elizabeth V. O'Grady, individually and as the trustee pursuant to a declaration of trust dated January 9, 1956, shall recover her costs, including attorney fees, in connection with these original proceedings from plaintiff and real party in interest The Downey Venture.

FOOTNOTES

1.   The attorney fee clause provided:  “In the event of the bringing of any action by either party hereto as against the other hereon or hereunder, or by reason of the breach of any covenant or condition on the part of the other party, or arising out of this lease, then, and in that event, the party in whose favor final judgment shall be entered shall be entitled to have and recover of and from the other reasonable attorneys' fees to be fixed by the Court wherein such judgment shall be entered.”

2.   On March 17, 1993, the superior court clerk issued an abstract of judgment reflecting the cost and attorney fee award in favor of Mr. Watson, the codefendant, in the amount of $20,877.75 as set forth in the amended judgment of December 8, 1992.   On April 22, 1993, the judgment abstract was recorded.   Plaintiff moved to expunge the abstract on the ground that the amended judgment “was not a ‘money judgment’ and may not be recorded.”   Plaintiff argued that the amended judgment for costs and attorney fees was automatically stayed on appeal.   Mr. Watson filed an opposition to the motion contending that recordation of the abstract did not constitute an execution of judgment.   On May 28, 1993, the respondent court granted the expungement motion.   On July 23, 1993, Mr. Watson filed a mandate petition challenging the May 28, 1993, expungement order.   On August 5, 1993, we issued an alternative writ of mandate.   On August 18, 1993, in response to our alternative writ of mandate, the respondent court set aside its May 28, 1993, expungement order.   Because the respondent court complied with the alternative writ of mandate, we dismissed the petition as moot.   As a result, Mr. Watson's abstract of judgment remains in full effect.

3.   Unless otherwise indicated, all future statutory references are to the Code of Civil Procedure.

4.   Of course, the judgment debtor may post an undertaking.

TURNER, Presiding Justice.

GRIGNON and ARMSTRONG, JJ., concur.