Minser v. Collect Access, LLC ( 2023 )

Filed 5/24/23; Certified for Publication 6/21/23 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
DAVID C. MINSER, JR., B318325, B321996
Plaintiff and Respondent, (San Luis Obispo County
Super. Ct. No. 16CVP0156)
v.
COLLECT ACCESS, LLC,
Defendant and Appellant.
APPEALS from a judgment and an order of the Superior
Court of San Luis Obispo County, Hernaldo J. Baltodano, Judge.
Affirmed.
Zee Law Group, Tappan Zee and Kimberly Barrientos for
Defendant and Appellant.
The Fullman Firm, Adam C. Fullman, Christopher J.
Peters and Sam Dehbozorgi for Plaintiff and Respondent.
_______________________
Under the Rosenthal Fair Debt Collection Practices Act
(the Rosenthal Act or the Act; Civ. Code,1 § 1788 et seq.), a debt
collector may not “collect or attempt to collect a consumer debt by
means of judicial proceedings when the debt collector knows that
service of process, where essential to jurisdiction over the debtor
or his property, has not been legally effected.” (§ 1788.15, subd.
(a).) The trial court found that defendant and appellant Collect
Access, LLC (Collect Access) violated this law in its efforts to
collect a default judgment against plaintiff and respondent David
C. Minser, Jr. The court set aside the underlying judgment on
equitable grounds, awarded Minser statutory damages and
attorney fees, and ordered Collect Access to repay the amount it
had collected from Minser as restitution.
Collect Access appeals from both the trial court’s judgment
(case No. B318325) and its order awarding attorney fees (case
No. B321996). Collect Access alleges that it did not violate the
Rosenthal Act because, among other reasons, it did not know that
service of process had not been legally effected. In addition,
Collect Access contends that the award of attorney fees must be
denied in its entirety or reduced because Minser’s attorneys did
not sufficiently document the work they performed. We disagree
and affirm.
1Unless otherwise specified, subsequent statutory
references are to the Civil Code.
2
FACTUAL BACKGROUND AND PROCEEDINGS BELOW
On November 16, 2000, First Select, Inc.,2 filed the
underlying suit against Minser, and in February 2001 obtained a
default judgment for $3,434.86. First Select filed a proof of
service in which a process server attested to “personally
delivering” the complaint and various other documents to Minser
on November 20, 2000, at an address on Curbaril Avenue in
Atascadero. The appellate record contains no other documents
from this initial phase of the litigation, but the parties stipulated
to this basic sequence of events, and also agreed that at some
later point, First Select assigned the judgment to PGMI, LLC.
In May 2008, PGMI in turn assigned the judgment to
Collect Access. Collect Access served Minser by mail with notice
of the assignment, as well as a copy of Collect Access’s application
to renew the judgment for 10 years. The proof of service forms
indicate that Collect Access mailed both of these documents to an
address on El Camino Real in Atascadero.
In August 2015, the San Luis Obispo County Superior
Court issued a writ of execution on the judgment, which by this
point, with interest and fees, amounted to $10,480.71. One
month later, Collect Access filed a notice of levy on Minser’s bank
account. This was apparently the first attempt by any creditor to
collect on the judgment, more than 14 years after it was entered.
Minser responded on September 22, 2015, submitting a
declaration in which he claimed that he had not been served with
the original complaint, and that he had learned of the judgment’s
existence less than two weeks earlier. One month later, Minser’s
2First Select is a defendant in this case but is not part of
the appeals.
3
attorney sent Collect Access a letter reiterating Minser’s
statements and including additional information. In a new
declaration accompanying the letter from his attorney, Minser
stated that his mother had suffered a stroke in early November
2000, and that he had been in San Diego taking care of her on the
day the process server claimed to have served him with the
complaint at his home on Curbaril Avenue. Minser’s mother
submitted a declaration of her own confirming her son’s account,
as well as a copy of records from a hospital in San Diego stating
that she had been a patient there from November 3 to 12, 2000.
Minser also provided utility bills for the summer of 2008
indicating that he resided at an address on Olmeda Avenue and
not the one on El Camino Real where Collect Access sent the
notices of assignment and of its application to renew the
judgment; Minser further asserted he never lived or received mail
at the El Camino Real address. Minser’s attorney warned that if
Collect Access continued to use judicial proceedings to collect the
debt, “Misner will file a [c]omplaint for violations of the
Rosenthal Act.”
Moe Essa, a Collect Access employee, declared that, upon
receiving the declarations, he “personally reviewed the records
and files pertaining to . . . Minser’s account.” According to Essa,
“Collect Access relied on the [p]roof of [s]ervice filed by . . . First
Select in [2000],”3 and on that basis believed Minser was aware of
the lawsuit. In addition, Essa stated that Collect Access had
3 Essa lists the date of the First Select proof of service as
2008, but this appears to be a typo. There is no indication in the
record that First Select had anything to do with the case after
obtaining a default judgment in 2001.
4
used a credit report to determine Minser’s address in 2008 and
served him by mail at that address with notice of the assignment
and renewal of the judgment. The credit report attached to
Essa’s declaration, however, indicated Minser lived on “El
Camido” and not “El Camino.”
Beyond his review of the file containing the initial proof of
service and the 2008 credit report, Essa did not claim to have
done any additional research on the veracity of Minser’s claims.
Nor did Collect Access cease using judicial resources to collect on
the judgment. In December 2015, the superior court issued an
order to garnish Minser’s wages by $350 per pay period.
According to Essa, Collect Access received its final payment on
the judgment in November 2016.
On June 17, 2016, Minser filed the instant suit against
Collect Access, its attorneys, Zee Law Group, PC, and First
Select, alleging causes of action for violating the Rosenthal Act,
restitution and unjust enrichment, civil conspiracy, and unfair
business practices. The suit also sought to set aside and vacate
on equitable grounds the default judgment in the original
lawsuit. The court entered default judgment on Minser’s
complaint against all three defendants4 in July 2019, but Collect
Access later obtained relief from the default judgment.
After a bench trial, the court ruled in favor of Minser on all
the causes of action except civil conspiracy. The court vacated
4 In the default judgment, the court found Collect Access
and Zee Law Group jointly and severally liable for $41,424.41 in
damages, attorney fees, and costs. Minser had named First
Select as a defendant only for the purpose of vacating the original
default judgment against him, and the court did not order First
Select to pay any damages.
5
and set aside the original default judgment against Minser and
awarded him $1,000 in statutory damages pursuant to section
1788.30, subdivision (b); statutory attorney fees pursuant to
section 1788.30, subdivision (c); and $10,152.59 in restitution for
the amount wrongfully collected from him. In a separate order,
the court fixed the fees and costs awarded to Minser as
$12,100.50 in attorney fees and $1,097.23 in costs.
Collect Access filed timely appeals from the judgment and
from the order awarding attorney fees.
DISCUSSION
A. Because the Case Was Filed as an Unlimited Civil
Case and Was Never Reclassified, This Court Has
Jurisdiction over the Appeal
The appellate record contains conflicting information as to
whether this case was a limited or unlimited civil matter.
Minser’s complaint indicated that it was unlimited, but many of
his later filings, as well as the trial court’s judgment, were
labeled “limited civil.” This calls into question our jurisdiction
over the case, in that appeals from judgments in limited civil
cases are to the appellate division of the superior court, not to
this court. (Code Civ. Proc., § 904.2.) If this were indeed a
limited civil case, we would transfer the appeals to the appellate
division of the San Luis Obispo County Superior Court for
disposition. (See Dedication & Everlasting Love to Animals, Inc.
v. City of El Monte (2022) 85 Cal.App.5th 113, 121-122.)
“A civil case is jurisdictionally classified as either limited or
unlimited civil at its outset.” (Stratton v. Beck (2017) 9
Cal.App.5th 483, 493.) A limited case allows for limited relief:
the amount in controversy may not exceed $25,000, and only
certain forms of relief are available. (See Code Civ. Proc., § 85.)
6
If a plaintiff means to file a limited civil case, he must designate
it as such in the caption of the complaint, and the parties must do
likewise in all subsequent pleadings. (Cal. Rules of Court, rule
2.111(10); Code Civ. Proc., § 422.30.) If a case has been
miscategorized, the trial court may reclassify it, either upon a
petition from one of the parties or on its own motion. (Code Civ.
Proc., § 403.040.) Unless the parties have taken these steps to
classify a case as limited, “a civil case is classified as unlimited by
default.” (Stratton v. Beck, supra, at p. 493.)
It is undisputed that Minser initially filed the case as an
unlimited civil case. While the parties themselves may later
have treated the case as limited, the trial court never issued an
order to reclassify it. It is therefore an unlimited case, and we
have jurisdiction over the appeals.
Collect Access contends that the trial court erred by
conducting the trial as if this were a limited civil case. Collect
Access points to only one situation in which the court deviated
from the rules for unlimited cases: it allowed Collect Access to
submit a written declaration from its employee Essa in lieu of
live testimony. Under Code of Civil Procedure section 98, this is
permissible only in limited cases.
It does not follow, however, that this requires us to reverse
the judgment. “A judgment of the trial court may not be reversed
on the basis of the erroneous admission of evidence, unless that
error was prejudicial. (Code Civ. Proc., § 475.)” (Grail
Semiconductor, Inc. v. Mitsubishi Electric & Electronics USA,
Inc. (2014) 225 Cal.App.4th 786, 799.) Collect Access has not
even attempted to demonstrate it suffered prejudice. The trial
court did not bar Essa from testifying in person; it was Collect
Access’s decision to submit a written declaration. Furthermore,
7
the trial court credited the facts in Essa’s statement. It seems
unlikely that Collect Access’s case would have been stronger if
Essa had testified in person and been subject to cross-
examination.
B. The Rosenthal Act
The Rosenthal Act was designed “to prohibit debt collectors
from engaging in unfair or deceptive acts or practices in the
collection of consumer debts and to require debtors to act fairly in
entering into and honoring such debts.” (§ 1788.1, subd. (b).)
The law bars debt collectors from engaging in a wide range of
conduct, including threatening debtors (§ 1788.10), harassing
them with profane language (§ 1788.11), and disclosing
information about a debt to the debtor’s employer or other third
parties (§ 1788.12). In addition, as relevant to this case, the Act
forbids debt collectors from “collect[ing] or attempt[ing] to collect
a consumer debt by means of judicial proceedings when the debt
collector knows that service of process, where essential to
jurisdiction over the debtor or his property, has not been legally
effected.” (§ 1788.15, subd. (a).)
A debt collector who violates the Act is liable for the
debtor’s actual damages (§ 1788.30, subd. (a)), plus reasonable
attorney fees (id., subd. (c)). Debt collectors who “willfully and
knowingly” violate the Act are also subject to an additional
penalty of $100 to $1,000. (Id., subd. (b).)
Collect Access contends that the trial court erred in several
respects in finding it violated the Rosenthal Act. First, it
contends it is not a debt collector as defined in the Act, and it is
therefore not subject to the Act. Next, it argues that the
litigation privilege shields it from liability under the Act. Finally,
8
it alleges that it did not know that Minser had not received valid
service of process, and therefore did not violate section 1788.15.
1. Substantial Evidence Supports the Trial Court’s
Finding that Collect Access is a Debt Collector under
the Act
The Rosenthal Act defines “ ‘debt collector’ ” as “any person
who, in the ordinary course of business, regularly, on behalf of
that person or others, engages in debt collection.” (§ 1788.2,
subd. (c).) The statute defines “ ‘debt collection’ ” as “any act or
practice in connection with the collection of consumer debts.”
(Id., subd. (b).) Collect Access contends that the trial court erred
by finding that it was a debt collector under the Rosenthal Act
because “Minser did not provide any testimony or evidence that
Collect Access regularly engages in debt collection.” The trial
court rejected this argument, noting that Essa testified that
“Collect Access maintains the records and files pertaining to . . .
Minser’s debt account ‘in the regular course of business,’ that he
personally reviewed these records, that ‘Collect Access relied on’
an Experian credit report ‘to communicate with Mr. Minser,’ ”
and that Collect Access admitted in its own post-trial brief that it
“ ‘submitted the wage garnishment to the Sheriff.’ ” (Italics
omitted.)
The question of whether Collect Access met the definition of
a debt collector is predominantly factual in nature, and we
therefore review the trial court’s determination for substantial
evidence. (Crocker National Bank v. City and County of San
Francisco (1989) 49 Cal.3d 881, 888.) Under that deferential
standard and the “very broad” definition of debt collector under
the Rosenthal Act (In re Ganas (Bankr. E.D.Cal. 2014) 513 B.R.
394, 404), we cannot say the trial court erred.
9
2. The Litigation Privilege Does Not Apply to Collect
Access’s Conduct
Collect Access contends the trial court erred by holding that
the litigation privilege does not apply to its efforts to collect on
the judgment against Minser. We disagree. Collect Access is
correct that the litigation privilege “has been broadly applied”
(Jacob B. v. County of Shasta (2007) 40 Cal.4th 948, 955) and,
where it does apply, provides “ ‘absolute[ ] immun[ity] from tort
liability’ ” for communications made in connection with litigation.
(Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1057.) The privilege
has been held not to apply, however, when it conflicts with
another statute “more specific than the litigation privilege,” when
the second statute “would be significantly or wholly inoperable if
its enforcement were barred when in conflict with the privilege.”
(Action Apartment Assn., Inc. v. City of Santa Monica (2007) 41
Cal.4th 1232, 1246.)
The court in Komarova v. National Credit Acceptance, Inc.
(2009) 175 Cal.App.4th 324 (Komarova) held that, under this
rule, the litigation privilege “cannot be used to shield violations of
the [Rosenthal] Act.” (Id. at p. 337.) Collect Access attempts to
distinguish Komarova on the ground that in this case, unlike in
Komarova, “There are no contentions of repeated threatening
phone calls or any other similar conduct specifically excluded by
the Rosenthal Act.” We disagree. First, Minser did allege that
Collect Access engaged in conduct specifically prohibited by the
Rosenthal Act. The sole purpose of section 1788.15, subdivision
(a), which is part of the Act, is to bar debt collectors from
continuing judicial proceedings to collect a debt while knowing
there was no valid service of process, as the court found Collect
Access did in this case. Second, the Komarova court did not base
10
its decision on the specific allegation that the debt collector
engaged in harassing phone calls, but rather on the ground that,
“ ‘Were the privilege to apply broadly to Rosenthal Act claims . . .
it would effectively immunize conduct that the Act prohibits.’ ”
(Komarova, supra, at p. 338, quoting Oei v. N. Star Capital
Acquisitions, LLC (C.D.Cal. 2006) 486 F.Supp.2d 1089, 1100.)
This is particularly true here, where the statute Collect Access
was accused of violating specifically bars debt collectors from
using “judicial proceedings” when the debt collector knows service
was not legally effected. (§ 1788.15, subd. (a).) Applying the
litigation privilege to the judicial proceedings here would
essentially render section 1788.15 null and void. Collect Access
complains that the trial court’s ruling “would effectively bar
application of the litigation privilege to any communications or
filings related to consumer debt collection actions.” But that
indeed appears to have been the Legislature’s intent in
regulating debt collectors’ use of judicial proceedings to collect
debts.
3. Section 1788.15 Does Not Require Actual Knowledge
of No Effective Service of Process
A debt collector is liable under section 1788.15, subdivision
(a) if it uses judicial proceedings to collect a debt when it “knows
that service of process . . . has not been legally effected” (italics
added). Relying solely on the statutory language, Collect Access
argues that the word “knows” should be interpreted to mean
actual knowledge, and contends that it therefore did not violate
the statute when it continued to collect from Minser after
learning of Minser’s declarations.
We are not persuaded. “[T]he Act is ‘a remedial statute
[that] should be interpreted broadly in order to effectuate its
11
purpose.’ ” (Komarova, supra, 175 Cal.App.4th at p. 340.) In
general, the use of the term “ ‘knowledge’ ” in a statute without
further qualification “encompasses both actual knowledge and
constructive knowledge.” (Tsasu LLC v. U.S. Bank Trust, N.A.
(2021) 62 Cal.App.5th 704, 718 (Tsasu LLC).) The Tsasu LLC
court defined these terms as follows: “ ‘Actual’ knowledge exists
when a person is subjectively aware of a fact. (E.g., In re A.L.
(2019) 38 Cal.App.5th 15, 21 . . . .) ‘Constructive’ knowledge
exists when a person is deemed in the eyes of the law to be aware
of a fact, either because (1) the person has ‘ “knowledge of
circumstances which, upon reasonable inquiry, would lead to that
particular fact [citations]” ’ (Melendrez[ v. D & I Investment, LLC.
(2005)] 127 Cal.App.4th [1258,] 1252, quoting First Fidelity Thrift
& Loan Assn. v. Alliance Bank (1998) 60 Cal.App.4th 1433, 1443
. . .), or (2) the fact is contained in a document that has been
‘ “recorded as prescribed by law.” ’ [Citations.]” (Tsasu LLC,
supra, at p. 719.)
We agree with Collect Access that Minser’s declaration was
not sufficient to supply actual knowledge in this instance. The
documentation from the hospital showed only that Minser’s
mother was a patient there from November 3 to November 12,
2000. The only evidence that Minser himself was away from
home on November 20, and therefore unable to receive service of
process, came from the declarations of Minser and his mother.
As Collect Access notes, both of these declarations were self-
interested. They did not prove conclusively that the service of
process form was false.
Nevertheless, this was not a case with a bare denial by a
debtor seeking to escape a judgment. The hospital records show
that Minser’s mother suffered a stroke in November 2000, and it
12
would be entirely natural for Minser to remain in San Diego to
care for her after she was released. Minser also provided
evidence in the form of utility bills that he did not live on El
Camino Real in Atascadero in July 2008 when Collect Access
tried to serve him by mail with notice of the assignment and
renewal of the judgment; the credit report relied upon by Collect
Access for Minser’s address further indicated a different street
name (El Camido Real) than the one to which Collect Access sent
notice (El Camino Real). This was sufficient and substantial
evidence to support a finding of constructive knowledge, in that
Collect Access was aware of circumstances which upon
reasonable inquiry would have shown service of process essential
to jurisdiction over Minser and his property had not been legally
effected. Instead of conducting any inquiry, Collect Access
continued to rely on the questionable information in its original
file. Even now, after years of litigation and with every incentive
to find evidence of the validity of the proof of service, Collect
Access remains empty-handed. It was reasonable for the trial
court to infer that had Collect Access undertaken a reasonable
inquiry at the time, it would have likely concluded that Minser
never received service of process of the underlying lawsuit or the
notice of assignment and renewal of the judgment.
In Tsasu LLC, the court interpreted the term “knowledge”
as encompassing both actual and constructive knowledge not only
because of the plain language of the statute, but also as a matter
of public policy. (Tsasu LLC, supra, 62 Cal.App.5th at pp. 719-
720.) Tsasu LLC concerned the interpretation of Code of Civil
Procedure section 764.060, which allows a purchaser of property
to rely on the validity of a quiet title judgment on the property so
long as the purchaser “act[s] in reliance on the judgment without
13
knowledge of any defects or irregularities in the judgment or the
proceedings.” (Ibid.) The court reasoned that if knowledge as
used in the statute were interpreted to mean only actual
knowledge, it would create “perverse incentives [by] . . .
discourag[ing] prospective buyers from checking the record of
title or from heeding ‘warning signs’ necessitating further
inquiry.” (Tsasu LLC, supra, at p. 720.)
The same is true here. The Rosenthal Act was designed “to
ensure that debt collectors and debtors exercise their
responsibilities to one another with fairness, honesty and due
regard for the rights of the other” (§ 1788.1, subd. (a)(2)), and “to
prohibit debt collectors from engaging in unfair or deceptive acts
or practices in the collection of consumer debts.” (Id., subd. (b).)
If section 1788.15 were interpreted in the manner Collect Access
urges, it would encourage creditors to behave as Collect Access
did in this case—to wait until 14 years of interest have accrued,
and evidence regarding the circumstances of the initial debt has
disappeared, before finally seeking to collect. If not for the
coincidence that Minser’s mother suffered a stroke less than a
month before First Select purportedly served Minser, it is
questionable whether Minser would have succeeded in this suit.
A construction that adds the word “actual” to section 1788.15’s
requirement of what the debt collector “knows” would not
accomplish the Legislature’s purposes in enacting the Rosenthal
Act, and would encourage debt collectors to rely on suspect
documentation regarding service by discouraging if not outright
excusing the consideration of any compelling contrary evidence.
We note that such an interpretation of section 1788.15,
subdivision (a) would not unjustly impose liability on a debt
collector confronted with contradictory evidence about service of
14
process given other safeguards in the Rosenthal Act. The Act
elsewhere provides an affirmative defense to debt collectors that
unintentionally violate the Act through a bona fide error.
Specifically, section 1788.30, subdivision (e) provides that “A debt
collector shall have no civil liability to which such debt collector
might otherwise be subject for a violation of [the Act], if the debt
collector shows by a preponderance of evidence that the violation
was not intentional and resulted notwithstanding the
maintenance of procedures reasonably adapted to avoid any such
violation.” Here, Collect Access did not assert this affirmative
defense, nor adduce any evidence to support it.
4. It Is Irrelevant that No Court Had Declared the
Judgment Against Minser Void
Collect Access argues that it did not violate the Rosenthal
Act by relying on the validity of the default judgment against
Minser because no court had yet declared the judgment void. But
section 1788.15 does not depend on whether a judgment has been
declared void; rather, it focuses on whether the debt collector
knew service of process had not been legally effected. Whether a
court has taken action to set aside the default judgment is
irrelevant.
C. The Trial Court Did Not Err by Finding Collect
Access Liable under the Unfair Competition Law
Collect Access contends the trial court erred by finding it
violated the Unfair Competition Law (the UCL; Bus. & Prof.
Code, § 17200 et seq.). We disagree. The UCL “ ‘establishes
three varieties of unfair competition—acts or practices which are
unlawful, or unfair, or fraudulent.’ [Citation.] . . . [¶] . . . [¶]
Under its ‘unlawful’ prong, ‘the UCL borrows violations of other
laws . . . and makes those unlawful practices actionable under the
15
UCL.’ [Citation.] Thus, a violation of another law is a predicate
for stating a cause of action under the UCL’s unlawful prong. . . .”
(Berryman v. Merit Property Management, Inc. (2007) 152
Cal.App.4th 1544, 1554.) A violation of the Rosenthal Act can
serve as a predicate offense for the UCL (see Alborzian v.
JPMorgan Chase Bank, N.A. (2015) 235 Cal.App.4th 29, 35-37),
and we see no reason to make an exception for Collect Access’s
violation of section 1788.15.
D. The Attorney Fees Award Was Not an Abuse of
Discretion
A debtor who prevails in an action under the Rosenthal Act
is entitled to recover reasonable attorney fees and costs.
(§ 1788.30, subd. (c).) In this case, the trial court awarded
Minser $12,100.50 in attorney fees and $1,097.23 in costs. We
review an award of statutory attorney fees after trial for abuse of
discretion. (Connerly v. State Personnel Bd. (2006) 37 Cal.4th
1169, 1175.) Collect Access contends the trial court’s award was
an abuse of discretion because Minser failed to submit sufficient
documentation of the work his attorneys performed. We
disagree.
In support of his claim for attorney fees, Minser submitted
two declarations from Christopher Peters, an attorney at the firm
that represented him. The first declaration, dated 2018, showed
the firm’s work leading up to a default judgment against Collect
Access from which Collect Access later obtained relief. The
declaration stated that Peters and two other attorneys worked on
the case, with Peters billing 6.1 hours at $350 per hour, another
attorney billing 0.6 hours at $400 per hour, and a third attorney
working 10.55 hours at $250 per hour. In addition, according to
the declaration, a legal secretary worked 11 hours at $90 per
16
hour. The declaration described the tasks each person
performed, but did not include a breakdown of the amount of
time each person spent on each task, nor did it list specific dates.
In all, the declaration claimed the firm had billed $6,002.50 in
attorney fees and incurred $1,037.23 in costs.
Peters submitted a second declaration in 2022, after the
court entered judgment in favor of Minser. In the new
declaration, Peters stated that he had billed 9.5 additional hours
on the case, and anticipated spending three more hours to draft a
reply brief and appear in court to argue the attorney fee motion,
for a total of 12.5 hours. At Peters’s new billing rate of $400 per
hour, the total bill for his work was $5,000. He also asserted that
two of the firm’s paralegals had spent a total of 12.2 hours on the
case at a billing rate of $90 per hour, for a total of $1,098. Peters
also claimed $60 in costs based on the court fees for filing the
motion. In all, Peters claimed $6,098 in fees and $60 in costs. In
the new declaration, Peters listed several documents his firm had
filed, but he did not break down the amount of time he and the
paralegals had spent at each step.
Collect Access argues that Minser’s claim of attorney fees is
unsubstantiated because he did not provide any billing
statements, and included a declaration from only one of the three
attorneys who worked on the case. Collect Access acknowledges
that “an award of attorney fees may be based on counsel’s
declarations, without production of detailed time records”
(Raining Data Corp. v. Barrenechea (2009) 175 Cal.App.4th 1363,
1375), but argues that in the absence of billing statements, “the
hours spent must be substantiated.” (Copenbarger v. Morris
Cerullo World Evangelism, Inc. (2018) 29 Cal.App.5th 1, 15.) The
court in Copenbarger suggested that attorneys may substantiate
17
their claims by “testif[ying] about their hourly rates, the work
performed, and the amount of time spent on various tasks.”
(Ibid.) It does not follow, however, that each attorney who
worked on the case must testify or submit a separate declaration.
We see no functional difference in the method followed here, in
which a single attorney who worked on the case and is familiar
with his firm’s billing rates submits a declaration under penalty
of perjury as to how much each attorney worked.5
Collect Access also contends the attorney fee award must
be reversed because Minser’s attorneys presented the hours they
worked in the form of “block billing without any way to determine
how much time was spent on each task.” Collect Access is correct
that the trial court may, in its discretion, reduce an award of
attorney fees if the attorney’s bills are too vague to allow the
court to determine if the hours spent on a case were justifiable.
(See Christian Research Institute v. Alnor (2008) 165 Cal.App.4th
1315, 1325.) In this case, some of the claims in Peters’s
declarations were indeed vague. In the first declaration, Peters
5 In its reply brief, Collect Access additionally argues the
trial court erred by including fees for work performed before
vacatur of the July 2019 default judgment against Collect Access.
This argument was not made in Collect Access’s opening brief,
and “[w]e do not consider arguments raised for the first time in a
reply brief.” (Committee to Relocate Marilyn v. City of Palm
Springs (2023) 88 Cal.App.5th 607, 636, fn. 8.) Even if we were
to consider this argument, the trial court found the pre-July 2019
work was properly included in the fee award given Minser’s
unrebutted “contention that [Collect Access’s] intentional evasion
of service of process caused the additional fees.” Collect Access
fails to demonstrate any abuse of discretion in this
determination.
18
listed the tasks each person performed, but did not specify the
time spent on each task. In the second declaration, he did not
even list the specific tasks he and his paralegals did, apart from
3.5 hours Peters asserted he had spent or would spend on the
attorney fee motion itself.
Collect Access made the same argument before the trial
court, which rejected it by awarding Minser the full amount of
attorney fees he requested. The court did not abuse its discretion
in doing so. Block billing, though discouraged, is “not
objectionable per se.” (Christian Research Institute v. Alnor,
supra, 165 Cal.App.4th at p. 1325.) In a complex case with
dozens of attorneys billing hundreds of hours, it would be
particularly inappropriate to submit bills with no indication of
how much time each attorney spent on which task. In this case,
however, Minser’s attorneys billed only around 30 hours in
aggregate, along with approximately 23 more hours from support
staff, to prosecute a case from the initial complaint through trial.
“A trial court’s attorney fee award will not be set aside ‘absent a
showing that it is manifestly excessive in the circumstances.’
[Citation.]” (Raining Data Corp. v. Barrenechea, supra, 175
Cal.App.4th at p. 1375.) Given the efficiency in the billable time
expended by Minser’s counsel to prosecute the case, Collect
Access has not come close to meeting this standard.
19
DISPOSITION
The judgment is affirmed, as is the trial court’s order
awarding attorney fees and costs. Minser is awarded his costs on
appeal.
WEINGART, J.
We concur:
ROTHSCHILD, P. J.
CHANEY, J.
20
Filed 6/21/23
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
DAVID C. MINSER, JR., B318325, B321996
Plaintiff and Respondent, (San Luis Obispo County
Super. Ct. No. 16CVP0156)
v.
COLLECT ACCESS, LLC, ORDER CERTIFYING
OPINION FOR PUBLICATION
Defendant and Appellant.
THE COURT:
The opinion in the above-entitled matter filed on May 24,
2023, was not certified for publication in the Official Reports. For
good cause it now appears that the opinion should be published in
the Official Reports, and it is so ordered.
______________________________________________________________
WEINGART, J. ROTHSCHILD, P. J. CHANEY, J.