Tikosky v. Yehuda ( 2018 )

Filed 1/30/18
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
JACOB TIKOSKY, B278052
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. LC057468)
v.
YORAM YEHUDA,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Frank J. Johnson, Judge. Affirmed.
Law Office of Lee David Lubin, Inc. and Lee D. Lubin for
Defendant and Appellant.
Law Office of Michael N. Berke and Michael N. Berke for
Plaintiff and Respondent.
____________________________
“The plaintiff is entitled only to a single recovery of full
compensatory damages for a single injury.” (Jhaveri v.
Teitelbaum (2009) 176 Cal.App.4th 740, 754 (Jhaveri).) This case
presents the question whether payment in the amount of the
judgment to the plaintiff by a third party for something
collaterally related to the judgment constitutes satisfaction of the
judgment.
Jacob Tikosky won a judgment against Yoram Yehuda in
2003. As part of his collection efforts, Tikosky sought and
received a court order to sell one of Tikosky’s properties. The
senior lienholder’s insurer, Chicago Title Insurance Company
(CTIC), paid Tikosky the exact amount of his judgment lien to
avoid the sale. Based on CTIC’s payment to Tikosky, Yehuda
filed a motion to compel acknowledgment of partial satisfaction of
the judgment. After a meandering procedural journey, the trial
court denied Yehuda’s motion. Yehuda appealed.
Because we conclude that CTIC’s payment to Tikosky was
not payment on Tikosky’s judgment against Yehuda, but rather
was payment for Tikosky refraining from having Yehuda’s
property sold, we affirm the trial court’s order.1
1On July 12, 2017, Tikosky filed a motion to augment the
record. That motion is granted.
2
BACKGROUND2
Tikosky’s Judgment
Tikosky filed suit against Yehuda on August 30, 2001,
alleging causes of action for partnership dissolution, accounting,
appointment of receiver, and imposition of constructive trust.
(Tikosky I, supra, at p. 3.) The trial court entered judgment in
the amount of $223,460.47 for Tikosky on July 30, 2003. (Id. at p.
2.) Following an appeal, the trial court entered a revised
judgment in the amount of $643,577.33 for Tikosky on October
11, 2005. (Tikosky III, supra, at p. 2.) That same day, the trial
court entered judgment joint and severally against Yehuda’s
appellate surety, Nathan Ben-Shitrit, in the amount of $284,000.
Tikosky and Ben-Shitrit settled Ben-Shitrit’s liability for
$137,500. Tikosky ultimately acknowledged partial satisfaction
of his judgment against Yehuda in that amount.
Order for Sale of Boris Drive Property
On May 13, 2008, the trial court granted Tikosky’s motion
for an order permitting his judgment against Yehuda to be
enforced against a property located at 17984 Boris Drive in
Encino (the Boris Drive property), a residential parcel held in the
name of an intervivos trust but found to be community property
2The case has been appealed several times. The first was
Tikosky v. Yehuda (Mar. 15, 2005, B170534) [nonpub. opn.]
(Tikosky I). The second was B187036, which was dismissed. The
third was B209196, which was dismissed. The fourth was
B211287, which was dismissed. The fifth was Tikosky v. Yehuda
(Mar. 17, 2011, B223260) [nonpub. opn.] (Tikosky II). The sixth
was Tikosky v. Yehuda (Dec. 23, 2015, B255834) [nonpub. opn.]
(Tikosky III). Much of the background is taken from Tikosky I,
Tikosky II, and Tikosky III.
3
of Yehuda and his wife. The court ordered the property sold to
satisfy Tikosky’s judgment. (Tikosky III, supra, at p. 2.) That
sale never happened.3
Yehuda’s Bankruptcy
In February 2009, Yehuda filed a Chapter 7 bankruptcy
petition.4 (Tikosky III, supra, at p. 3.) On May 18, 2009, the
bankruptcy court lifted the automatic stay on the parties’
stipulation to allow Tikosky “to exercise any and all rights he
might have to satisfy some or all of his judgment against
[Yehuda] from a sale of [the Boris Drive property] . . . .” (Ibid.)
On August 14, 2009, Tikosky sought and obtained an order
clarifying the relief-from-stay order and, among other things,
permitting Tikosky to obtain a state court order for post-
judgment attorney fees and costs, to be enforced against the Boris
Drive property—but not to recover from any other Yehuda
bankruptcy assets without further order from the bankruptcy
court. (Ibid.)
On October 6, 2009, the superior court awarded Tikosky
post-judgment attorney fees and costs of $212,184.40. (Tikosky
III, supra, at p. 3.)
3 Yehuda eventually sold the Boris Drive property in a
“short sale” transaction a year and a half after the trial court
ruled on Yehuda’s first motion to compel acknowledgement of
partial satisfaction of the judgment and after he demanded
acknowledgment in advance of the second motion. The instant
appeal is based on Yehuda’s renewal of the second motion.
4 Yehuda filed his bankruptcy petition in the Southern
District of Florida. On December 14, 2009, that court granted
Tikosky’s motion to transfer venue to the Central District of
California.
4
Boris Drive Lien Priority
On January 28, 2010, the superior court ruled on a motion
for determination of the priority of the liens on the Boris Drive
property. JPMorgan Chase Bank as successor in interest to
Washington Mutual Bank held the first lien in the amount of
$647,149.23. Tikosky’s judgment ($223,460.47) and amended
judgment (which, after credit to Yehuda for his appellate surety’s
$137,500 payment to Tikosky, was $506,077.33) were the second
and third liens. The fourth ($1,650,000) and sixth ($500,000)
liens were for additional deeds of trust in favor of Washington
Mutual Bank. And the fifth lien ($500,000) was a deed of trust in
favor of another lender (Schaefer TD). The liens on the Boris
Drive property, then, totaled $4,026,687.03.
The Tikosky-CTIC Transaction
The trial court set the Boris Drive foreclosure sale for
March 18, 2010. But on the sale date, CTIC, as title insurer for
the Washington Mutual liens (the first, fourth, and sixth liens),
paid Tikosky $792,531.21 to avoid the sale.5 (Tikosky III, supra,
at p. 4.) Based on that payment, Yehuda demanded that Tikosky
acknowledge partial satisfaction of the judgment.
The Bankruptcy Court Rulings
In a March 2011 ruling on Yehuda’s motion for summary
judgment on Tikosky’s adversary claim, the bankruptcy court
5Yehuda succinctly characterized CTIC’s interest in
preventing the foreclosure sale: “[Tikosky] refused to foreclose on
the Boris Property, since to do so would have caused CTIC to
have to pay on the claim of its insured, WAMU. . . . [¶] . . . [¶]
CTIC paid [Tikosky] the amount of the judgment lien in order to
avoid having to pay . . . more than $2,150,000 to its insured,
which it would otherwise be contractually obligated to do.”
5
wrote that Tikosky “does not dispute that he has been paid by
[CTIC] with respect to his claim, but does dispute the nature and
extent of that payment. [Tikosky] argues that the purported
payment from [CTIC] satisfied only [Tikosky’s] ‘in rem claim.’
[Tikosky] is still seeking post-judgment costs of $212,184.40 plus
interest, which [Tikosky] contends was not within the scope of
the transaction with [CTIC].” The bankruptcy court concluded
that Tikosky “has no standing to prosecute his claim for
$792,531.21 arising out of the judgment because it was assigned
to [CTIC]. [Tikosky’s] claim for $212,184.40 plus interest
remains, or at least, debtor has not shown that there is no
material dispute of fact as to this amount. The [relief-from-stay]
order made no ruling as to whether this claim was valid. It
simply allowed an in rem execution of the claim and the
liquidation of [t]he claim. The claim was liquidated, and the
undisputed material facts show that only the judgment abstract
portion was sold. Whether the remaining portion of the judgment
was extinguished is still in dispute. Because there is a genuine
issue of material fact as to whether [Tikosky] remains a valid
creditor of [Yehuda] with standing to prosecute the adversary
proceeding[, Yehuda] has not satisfied his burden of
demonstrating that [Tikosky’s] purported assignment to [CTIC]
satisfied all claims [Tikosky] has against the estate.” The
bankruptcy court continued, explaining, “[a]s the parties claim
there is no other documentation assigning the judgment to
[CTIC] other than what is in the record, it is not possible on the
basis of this motion to determine the scope of the assignment and
whether or not [Tikosky] continues to have standing in this case.”
Yehuda later filed a motion to disallow the claim, and on
August 16, 2012, the bankruptcy court issued another order
6
opining on the effect of the Tikosky-CTIC transaction. “On
March 18, 2010,” the bankruptcy court recalled, “[CTIC]
purchased Tikosky’s rights in the Judgment Lien for $792,531.21
(‘Purchase Agreement’). [CTIC] and Tikosky assert that they
entered into the Purchase Agreement to stop a pending
foreclosure on the Boris Drive Property, thereby ensuring that
Tikosky’s Judgment Lien would be preserved.” On this motion,
however, the bankruptcy court determined that there was “no
factual basis by which to disallow Tikosky’s claim. Contrary to
[Yehuda’s] assertions, the assignment of the Judgment Lien to
[CTIC] did not erase Tikosky’s right to pursue his claim against
[Yehuda] because the Judgment has not been fully satisfied . . . .”
“Tikosky and [CTIC],” the bankruptcy court explained, “can
decide how to split the proceeds of the Judgment Lien after
collection.”
Post-Bankruptcy Proceedings
On November 6, 2013, after the bankruptcy was dismissed
(without discharge), Yehuda demanded that Tikosky
acknowledge partial satisfaction of the judgment “in the amount
of $792,531.21, as of March 18, 2010.” Yehuda explained that the
demand was “based upon Mr. Tikosky’s receipt of payment of
$792,531.21 from [CTIC] on March 18, 2010 (which satisfied a
portion of the judgment in said amount) . . . .” Tikosky declined.
The Boris Drive property was sold in November 2013, after
which Tikosky acknowledged partial satisfaction of the Yehuda
judgment in the amount of $33,750. (Tikosky III, supra, at p. 7,
fn. 13.)
In December 2013, Yehuda moved the superior court for an
order to compel acknowledgement of partial satisfaction of the
judgment in the amount of $792,531.21. The trial court denied
7
Yehuda’s motion on February 24, 2014, agreeing with Tikosky’s
argument that the bankruptcy court’s August 16, 2012 order
denying Yehuda’s motion to disallow Tikosky’s claim was res
judicata of the partial-satisfaction issue. (Tikosky III, supra, at p.
7.)
Yehuda appealed. And on December 23, 2015, we issued an
opinion disagreeing with the trial court’s conclusion, reversing
the trial court’s order, and remanding the case to the trial court.
(Tikosky III, supra, at pp. 16-17.)
In July 2016, Yehuda filed a renewed motion to compel
acknowledgement of partial satisfaction of the judgment. On
August 24, 2016, the trial court again denied Yehuda’s motion.
The trial court found “no evidence of any intention to benefit
[Yehuda]” in the transaction between Tikosky and CTIC. And
the trial court found “no circumstances under which the
defendant can assert any relationship to the contract between
[CTIC] and [Tikosky].”
Yehuda timely appealed.
DISCUSSION
Yehuda contends CTIC’s March 18, 2010 payment to
Tikosky entitles him to acknowledgment of partial satisfaction of
Tikosky’s judgment in the amount of $792,531.21 or alternatively
that Tikosky’s release of his judgment lien on the Boris Drive
property, which permitted the short sale of the property, required
Tikosky to credit Yehuda for the March 18, 2010 payment.
Yehuda relies most heavily on a single sentence in Jhaveri,
supra, 176 Cal.App.4th 740: “The plaintiff is entitled only to a
single recovery of full compensatory damages for a single injury.”
(Id. at p. 754.) Tikosky, on the other hand, relies on Buckeye
Refining Co. v. Kelly (1912) 163 Cal. 8, 13 to characterize the
8
March 18, 2010 payment as CTIC purchasing an equitable
interest in Tikosky’s judgment against Yehuda.
The facts underlying the parties’ disagreement are
undisputed; the parties dispute only the legal effect of CTIC’s
March 18, 2010 payment to Tikosky. We review legal questions
based on undisputed facts de novo.6 (Behunin v. Superior Court
(2017) 9 Cal.App.5th 833, 843.)
Yehuda’s contentions focus entirely on Tikosky receiving a
payment in the amount of the lien he held on Yehuda’s Boris
Drive property. Satisfaction of a judgment, however, is not a one-
sided consideration; satisfaction of judgment is not only about
receipt of payment, but is also about payment. Yehuda’s out-of-
context admonition from Jhaveri that a “plaintiff is entitled only
to a single recovery of full compensatory damages for a single
injury” is accurate as far as it goes. (Jhaveri, supra, 176
Cal.App.4th at p. 754.) But it does not extend to the question
here.7
6 “A trial court’s decision to apply a credit in partial
satisfaction of the judgment is an exercise of the court’s equitable
discretion.” (Jhaveri, supra, 176 Cal.App.4th at p. 749.) We
would, therefore, ordinarily review this type of motion for an
abuse of discretion. The question here, however, is more basic;
the question here is whether the CTIC payment to Tikosky
constitutes a credit in the first instance, and not whether the
trial court abused its discretion in declining to apply a credit.
7 Yehuda expends considerable energy arguing that
Tikosky secured his non-opposition to Tikosky’s relief-from-stay
motion in Yehuda’s Florida bankruptcy by agreeing he would
accept whatever proceeds the sale of the Boris Drive property
generated in full satisfaction of his judgment. Tikosky, however,
held a second lien on a property encumbered by millions of
9
CTIC’s March 18, 2010 payment to Tikosky was neither
intended to be nor did it serve as compensation for the injury
Yehuda inflicted upon Tikosky.8 The payment, rather, was
dollars in other liens and a judgment that continued to increase
as Yehuda continued to obstruct collection efforts.
While Yehuda’s non-opposition to a motion may have
presented some value to Yehuda, it is implausible that the value
was the full amount of a judgment Tikosky secured by taking
Yehuda to trial in 2003. We have no way to know whether the
bankruptcy court would have granted Tikosky’s relief-from-stay
motion absent Yehuda’s non-opposition or would have required
Tikosky to wait until either discharge or, as it happened, denial
of discharge, to seek relief from the superior court to sell the
Boris Drive property.
Whatever Yehuda and Tikosky agreed to, we can find
nothing in the record that suggests they agreed that not selling
the property—the situation here—would result in some sort of
credit to Yehuda on Tikosky’s judgment.
8 The record apparently does not disclose the terms of
CTIC’s agreement with Tikosky. Correspondence from Yehuda’s
attorney to Tikosky characterizes the transaction as an
assignment of the judgment liens to CTIC. An “Agreement to
Purchase Equitable Interest in Judgment” that purports to have
been entered into on March 18, 2010 between Tikosky and CTIC,
however, characterizes CTIC’s agreement with Tikosky as a
purchase of an equitable interest in the judgment and appoints
Tikosky as CTIC’s agent “for the limited purposes of Tikosky’s
continued pursuit, as legal owner, of collection of the entire
amount on the Amended Judgment” and notes that Tikosky
“retains legal title to the entire Amended Judgment with the
right to pursue collection of the entire Amended Judgment
subject to the equitable interest of CTIC.” Yehuda contends the
10
consideration for Tikosky declining to exercise a legal right he
had separate from (although existing as a function of) his
judgment against Yehuda. CTIC entered into an agreement with
Tikosky to protect itself and its insured by securing Tikosky’s
agreement to not foreclose on the Boris Drive property. That
agreement, its value to either Tikosky or CTIC, and the rights
and remedies of each party thereunder, are questions left to
Tikosky and CTIC to work out as they will. And those two
parties could have placed whatever market price on that
agreement they wished. To credit Yehuda for that payment
would allow Yehuda to take $792,531.21 out of CTIC’s pocket and
allow Yehuda to give nothing in return.
Yehuda emphasizes a single sentence in Jhaveri, but the
preceding sentences he omits focus on who satisfies the judgment:
“It is the rule that ‘if one joint tortfeasor satisfies a judgment
against all joint tortfeasors the judgment creditor cannot obtain a
double recovery by collecting the same judgment from another of
the tortfeasors. [Citation.] The rationale is that ‘[a]n injured
person is entitled to only one satisfaction of judgment for a single
harm, and full payment of a judgment by one tortfeasor
discharges all others who may be liable for the same injury.
[Citation.] In McCall v. Four Star Music Co. (1996) 51
Cal.App.4th 1394, 1399, . . . the court explained: ‘[W]here fewer
than all of the joint tortfeasors satisfy less than the entire
judgment, such satisfaction will not relieve the remaining
tortfeasors of their obligation under the judgment.’ ” (Jhaveri,
supra, 176 Cal.App.4th at pp. 753-754, italics added.)
Tikosky-CTIC agreement was not entered into until March 27,
2012 and is a sham.
11
Neither does it appear that the Boris Drive property “short
sale” triggered any obligation for Tikosky to acknowledge any
satisfaction of the judgment beyond the $33,750 the record
discloses he acknowledged. Although the record is silent on this
point, the proceeds from that sale were presumably applied to the
liens on the property in order of their priority.
That the property eventually sold is of no consequence.
Yehuda based his motion on the March 18, 2010 payment. And
he initially filed the motion and had it heard more than a year
and a half before the short sale. Though we have no record of
what happened to the proceeds from the short sale, we will not
presume in the absence of that record they were turned over
either to CTIC or to Tikosky, particularly since there was a lien
on the Boris Drive property that was senior to Tikosky’s.
The question here is elementary: is a judgment debtor
entitled to the benefit of an agreement between two other parties
that is entered into neither for the benefit of nor at the expense of
the judgment debtor. As did the trial court, we conclude the
answer must be no.
At the hearing on Yehuda’s renewed motion to compel
acknowledgment of partial satisfaction of the judgment, the trial
court observed: “The point is made by [Yehuda] that he should
not be obligated to pay twice, to pay this judgment twice, which,
as a legal proposition, is probably correct – most certainly correct.
But as pointed out by the opposing party, he hasn’t even paid
once. He’s paid nothing on this judgment, and the payment by
[CTIC] was not intended to confer a benefit upon him. [¶] If at
some point[] the judgment is satisfied by [Yehuda], it’s
theoretically possible that [CTIC] and [Tikosky] might have some
sort of dispute that would have to be resolved and resort to the
12
court processes. But I don’t see any circumstance at all in which
[Yehuda], the moving party herein, has any standing to assert
the nature of that contract between” CTIC and Tikosky.9
We agree. It would be a great injustice for Yehuda to pay
Tikosky’s judgment twice. But that has not happened here.
9 The record here is effectively silent on the intent of the
Tikosky-CTIC transaction because Yehuda disputes every
characterization contained in the record of that transaction and
opts to characterize it instead as a payment by CTIC for Yehuda’s
benefit. There is no basis in the record upon which we might
draw that conclusion. Nor do we find it necessary for our
consideration. Had Yehuda produced a record supporting his
characterization of the Tikosky-CTIC transaction—a transaction
to which he was not a party—our analysis might be different.
(McCall v. Four Star Music Co., supra, 51 Cal.App.4th at p. 1401
[“The intent of the parties as expressed in the release is
controlling”].)
13
DISPOSITION
The trial court’s order denying Yehuda’s motion to compel
acknowledgment of partial satisfaction of Tikosky’s judgment is
affirmed. Tikosky is to recover his costs on appeal.
CERTIFIED FOR PUBLICATION
CHANEY, Acting P. J.
We concur:
JOHNSON, J.
BENDIX, J.*
*Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
14