AAWestwood v. Liberal Arts 677 Benevolent Foundation CA2/5 ( 2021 )

Filed 9/8/21 AAWestwood v. Liberal Arts 677 Benevolent Foundation CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
AAWESTWOOD, LLC, B302363
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BC504513)
v.
LIBERAL ARTS 677
BENEVOLENT
FOUNDATION, INC.,
Defendant and Appellant.
APPEAL from a postjudgment order of the Superior Court
of Los Angeles County, Randolph M. Hammock, Judge. Affirmed.
Law Office of Lawrence M. Lebowsky and Lawrence M.
Lebowsky for Defendant and Appellant.
Pick & Boydston and Brian D. Boydston for Plaintiff and
Respondent.
I. INTRODUCTION
Defendant and cross-complainant Liberal Arts 677
Benevolent Foundation, Inc. (Liberal Arts) appeals from the trial
court’s entry of an award of attorney fees which directed that
interest accrue on the award beginning on the date the court
awarded fees. In Liberal Arts’s view, the court erred in failing to
order that interest on the fee award accrue earlier, namely, on
the date it entered a money judgment in Liberal Arts’s favor. We
affirm.
II. BACKGROUND
The parties’ dispute over certain parking spaces has been
the subject of two prior appeals. We recite here only the facts
that are relevant for purposes of the instant appeal. In 2013,
plaintiff AAWestwood, LLC (AAWestwood) filed a complaint
against Liberal Arts for quiet title and forcible detainer, and
Liberal Arts crossed-complained for quiet title and declaratory
relief. (AAWestwood, LLC v. Liberal Arts 677 Benevolent
Foundation (Nov. 13, 2020, B296066) [nonpub. opn.].) Following
a bench trial, the trial court found in favor of Liberal Arts on
certain of the claims, in favor of AAWestwood on other claims,
and concluded that Liberal Arts was the prevailing party under
Code of Civil Procedure section 1032, subdivision (a)(4).1
(AAWestwood, LLC v. Liberal Arts 677 Benevolent Foundation
(May 23, 2018, B275717) [nonpub. opn.] (AAWestwood I).) The
court then stated that “‘given the facts and circumstances of the
1 Further statutory references are to the Code of Civil
Procedure unless otherwise indicated.
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case . . . the Court in its discretion finds that each party should
bear its own costs.’” (Ibid.) Notice of entry of judgment was
entered on August 17, 2015.
Liberal Arts then filed a motion for attorney fees pursuant
to Civil Code section 1717. (AAWestwood I, supra, B275717.)
The trial court denied the request, reasoning that its decision not
to award costs under section 1032, subdivision (a)(4) controlled.
(Ibid.) The court concluded that because it had declined to award
costs to either party, it would also decline to award attorney fees.
(Ibid.) On May 23, 2018, a panel of this court reversed, holding
that the trial court’s conclusion that Liberal Arts was the
prevailing party pursuant to section 1032 did not resolve the
issue of whether Liberal Arts was the prevailing party on the
contract such that it was entitled to attorney fees under Civil
Code section 1717. (Ibid.) Because, on the record before us, we
could not “determine as a matter of law that [Liberal Arts] either
was or was not the prevailing party on the contract[,]” we
remanded for the court to determine, in the first instance,
whether Liberal Arts had prevailed on the contract within the
meaning of Civil Code section 1717. (Ibid.)
B. Current Appeal
Following remand, on February 21, 2019, the trial court
granted Liberal Arts’s motion for attorney fees, finding that it
was the prevailing party on the contract and awarding it
$225,000 for prejudgment attorney fees, and $55,000 for attorney
fees on appeal.
On July 5, 2019, Liberal Arts filed an ex parte application
for an order to enter the court’s attorney fees award, arguing that
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the award should be entered as of the date of entry of the
judgment, that is, August 17, 2015, and that interest be deemed
to have accrued on that date. AAWestwood opposed the
application, arguing that interest should only accrue as of
February 21, 2019, when the trial court awarded attorney fees.
On September 3, 2019, the trial court ruled that interest on
the attorney fees award accrued only as of February 21, 2019.
Liberal Arts timely appealed.
III. DISCUSSION
A. Standard of Review and Applicable Law
“[S]ection 685.020, subdivision (a) provides in part that
‘interest commences to accrue on a money judgment on the date
of entry of the judgment.’ [Footnote omitted.] The date from
which interest should run . . . ‘[is a] question[] of law, which we
review de novo.’ [Citation.]” (Chodos v. Borman (2015) 239
Cal.App.4th 707, 712.)
“A judgment bears legal interest from the date of its entry
in the trial court even though it is still subject to direct attack.
[Citation.] When a judgment is modified upon appeal, whether
upward or downward, the new sum draws interest from the date
of entry of the original order, not from the date of the new
judgment. [Citations.] On the other hand, when a judgment is
reversed on appeal the new award subsequently entered by the
trial court can bear interest only from the date of entry of such
new judgment. [Citation.]” (Stockton Theatres, Inc. v. Palermo
(1961) 55 Cal.2d 439, 442–443 (Stockton Theatres).)
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B. Analysis
Liberal Arts contends that in AAWestwood I, we modified,
rather than reversed, the judgment and the trial court’s attorney
fee award therefore should accrue interest from the court’s initial
judgment date, August 17, 2015. We disagree.
In AAWestwood I, we did not modify the August 17, 2015,
judgment, but instead reversed the trial court’s ruling denying
attorney fees and directed the court to make a further finding as
to whether Liberal Arts prevailed on the contract such that it was
entitled to attorney fees under Civil Code section 1717.
(AAWestwood I, supra, B275717.) “Up until this point no award
of costs for [attorney fees] could have been made because there
had been no hearing or finding on the issue of [whether Liberal
Arts had prevailed on the contract.]” (Stockton Theatres, supra,
55 Cal.2d at p. 443.) If the court, on remand, found that Liberal
Arts had prevailed on the contract, it was directed to award
attorney fees. (Ibid.) “Under the general rule applicable to
judgments, such an award would bear interest not from
[August 17, 2015], but from the date that this last order was
made.” (Ibid.; see also Felczer v. Apple, Inc. (2021) 63
Cal.App.5th 406, 415 (Felczer) [where, as here, “the court must
still determine if one side should pay certain expenses of their
opponent, there is no money judgment as to those expenses
unless and until the court decides they are recoverable. There
may already be a money judgment with respect to other
monetary payments the court has ordered, but that judgment
cannot constitute a money judgment for costs that a party has yet
to demonstrate it is entitled to recover”].) “Thus, it was not until
[February 21, 2019,] when the court decided [Liberal Arts’s]
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motion for attorney fees that their right to collect those fees was
established. Accordingly, the order on attorney[ ] fees constitutes
a separate money judgment and interest on that judgment began
to accrue on that later date. [Fn. omitted.]” (Felczer, supra, 63
Cal.App.5th at p. 416.)
Liberal Arts also cites California Rules of Court, rule
3.1700(b)(4)2 in support of its argument that entry of costs on the
August 17, 2015, judgment by the clerk means interest on the
costs accrues from the date of judgment. We disagree. “That the
clerk enters the costs ‘on the judgment’ strongly implies that the
amount of the cost award becomes part of the judgment, at least
to some extent. But it does not necessarily dictate when interest
on that part of the judgment begins to accrue. . . . [¶] . . . [¶]
. . . [R]ule 3.1700(b)(4) simply states that ‘[a]fter the time has
passed for a motion to strike or tax costs or for determination of
that motion, the clerk must immediately enter the costs on the
judgment.’ We do not read this rule as establishing that court
clerks wield a formal nunc pro tunc power when they add costs to
the judgment. . . . So although the clerk regularly adds awards of
fees and costs onto an earlier judgment so that a single sum can
be subject to collection, this clerical action cannot broaden the
court’s nunc pro tunc power beyond proper bounds. Nor does it
transform that judgment into a single, immutable document for
all purposes, and specifically for the purpose of determining when
interest should begin to accrue.” (Felczer, supra, 63 Cal.App.5th
at pp. 413–414, fns. omitted.)
2 Further rule references are to the California Rules of
Court. Rule 3.1700(b)(4) provides: “After the time has passed for
a motion to strike or tax costs or for determination of that motion,
the clerk must immediately enter the costs on the judgment.”
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Here, the trial court initially concluded that at the time of
judgment, August 17, 2015, Liberal Arts was not entitled to
recover any fees. The determination of Liberal Arts’s right to
attorney fees did not occur until February 21, 2019. Accordingly,
the court did not err when it concluded that interest on the
attorney fees award accrued from February 21, 2019, rather than
the earlier date of August 17, 2015.
IV. DISPOSITION
The September 3, 2019, order is affirmed. AAWestwood,
LLC is awarded costs, which does not include attorney fees, on
appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KIM, J.
We concur:
RUBIN, P. J.
BAKER, J.
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