Yeager et al v. Bowlin et al

Filing 239

ORDER signed by Senior Judge William B. Shubb on 6/17/2015 DENYING 223 Defendants' Motion for Attorneys' Fees and Costs of Collection of Judgment. (Kirksey Smith, K)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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GENERAL CHARLES “CHUCK”
YEAGER, (RET.), and GENERAL
CHUCK YEAGER FOUNDATION,

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ORDER

Plaintiffs,

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CIV. NO. 2:08-102 WBS CKD

v.
CONNIE BOWLIN, et al.,
Defendants.

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On January 6, 2010, this court granted summary judgment

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in favor of defendants Connie and Ed Bowlin, Aviation Autographs,

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and Bowlin and Associates, Inc.

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subsequently awarded defendants $275,595.58 in attorneys’ fees

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and costs on June 3, 2010.

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years later, defendants now request another award of attorneys’

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fees and costs incurred during the enforcement of the court’s

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initial award.

(Docket No. 135.)

(Docket No. 169.)

(Docket No. 223.)

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The court

More than five

For the reasons stated below,

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defendants’ motion is untimely and must be denied.1

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Federal Rule of Civil Procedure 69(a) governs the

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procedure for enforcement of money judgments in federal court.

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See Carnes v. Zamani, 488 F.3d 1057, 1059 (9th Cir. 2007).

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rule provides that the procedure for enforcing a money judgment

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“must accord with the procedure of the state where the court is

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located, but a federal statute governs to the extent it applies.”

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Fed. R. Civ. P. 69(a).

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instant motion, the court turns to California procedural law.

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The

Because no federal statute governs the

See Carnes, 488 F.3d at 1060.

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California’s Enforcement of Judgments Law (“EJL”)

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states that a “judgment creditor is entitled to the reasonable

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and necessary costs of enforcing a judgment.”

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Code § 685.040.

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while enforcing a judgment if that underlying judgment included

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an award of attorneys’ fees.

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Cal. Civ. Proc.

These costs may include attorneys’ fees incurred

See id. §§ 1033.5(a)(10); 685.040.

The judgment creditor may seek an award of postjudgment

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attorneys’ fees by either filing a memorandum of costs or by

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serving a noticed motion.

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either method, however, the judgement creditor must request

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postjudgment attorneys’ fees before the underlying judgment is

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fully satisfied.

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fully satisfied but not later than two years after the costs have

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been incurred . . . .”), 685.080(a) (“The motion shall be made

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before the judgment is satisfied in full, but not later than two

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years after the costs have been incurred.”); see also Carnes, 488

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See id. §§ 685.070, 685.080.

Under

Id. §§ 685.070(b) (“Before the judgment is

This motion was determined to be suitable for decision
without oral argument pursuant to Local Rule 230(g).
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F.3d at 1060.

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The court understands defendants’ motion to request

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fees and costs associated solely with the enforcement of the June

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3, 2010 judgment awarding attorneys’ fees and costs.

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Mem. at 3.)

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in full.”

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balance of the underlying judgment . . . .”).)

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(See Defs.’

Defendants state that judgment “has been collected

(Id.; see also id. at 2 (“Yeager did pay Bowlins the

In its June 2, 2015 Order, the court stated its concern
regarding defendants’ representations that the award was already

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collected in full.

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and quoted from--California Code of Civil Procedure sections

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685.070(b) and 685.080(a) as well as and Ninth Circuit precedent

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interpreting those statutes and invited both parties to submit

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supplemental briefs addressing the issue of timeliness.

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(Docket No. 230.)

The court also cited to--

Defendants submitted a supplemental brief one day later

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that utterly missed the mark.

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completely ignored the court’s attempt to highlight problematic

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statutory language and failed to even mention sections 685.070 or

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685.080.

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why Federal Rule of Civil Procedure 54(d) does not apply to their

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motion--a rule the court never mentioned in its June 2, 2015

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Order.

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(Docket No. 231.)

Defendants

Instead, they provided an unnecessary explanation of

Even more astonishingly, defendants justified their

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discussion of Rule 54(d) by saying they had “no indication that

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there is any other possible basis for the Court’s request for

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supplemental briefing.”

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plaintiff, who unlike defendants is not represented by counsel,

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grasped the court’s meaning and submitted a brief that addressed

(Defs’ Supplemental Brief at 1-2.)

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Yet,

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sections 685.070(b) and 685.080(a).

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Plaintiff also stated that the court’s judgment was fully

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satisfied by March 3, 2014.

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undisputed that the court’s June 3, 2010 judgement had been paid

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in full before defendants filed their motion.

(See Docket No. 237.)

(Id. at 2.)

Accordingly, it is

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Defendants say in passing that the Ninth Circuit’s

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additional award of $102,929.12 in attorneys’ fees and costs

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incurred while this matter was on appeal remains unpaid.

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Mem. at 3.)

(Defs.’

The Ninth Circuit’s award does not affect the

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timeliness of the instant motion, however, because costs and fees

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awarded by an appellate court “are not added to the trial court

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judgment, but constitute a separate judgment.”2

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Properties Inv., Inc. v. Lee, 185 Cal. App. 4th 125, 138 (1st

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Dist. 2010) (citing Los Angeles Unified Sch. Dist. v. Wilshire

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Ctr. Marketplace, 89 Cal. App. 4th 1413, 1419 (1st Dist. 2001));

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see Cal. Rules of Court 8.278(b)(1), (c)(3).

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not request expenses associated with enforcement of the Ninth

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Circuit’s award, and this Order expresses no views on the

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availability of those expenses at this time.

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“judgment” for purposes of this Order is the court’s June 3, 2010

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award.

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Lucky United

This motion does

The relevant

In short, the EJL required defendants to file their
motion before the award from this court was fully satisfied.

See

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This conclusion is further supported by the California
Supreme Court’s interpretation of fee awards under California
law, which draws a distinction between (1) “prejudgment costs,
including attorney fees,” (2) “appellate costs and fees,” and (3)
“postjudgment enforcement costs and fees.” In re Conservatorship
of McQueen, 59 Cal. 4th 602, 608 (2014) (distinguishing the
separate statutory basis for each award).
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Cal. Civ. Proc. Code §§ 685.070, 685.080.

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collected in full, and the motion is therefore untimely.

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Carnes, 488 F.3d at 1061 (affirming the denial of a similar

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motion as untimely).

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That award has been
See

IT IS THEREFORE ORDERED that defendants’ motion for

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attorneys’ fees and costs of collection of judgment be, and the

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same hereby is, DENIED.

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Dated:

June 17, 2015

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