..........................................Chapter 7: Securing and Enforcing Judgments

........................................................ A. Provisional Remedies
1. Attachment for Security
p. 760, Note 1: Prejudgment attachment procedure under CCP § 483.010 is reviewed in Goldstein v. Barak Construction, 164 Cal.App.4th 845, 79 Cal.Rptr.3d 603 (2008).

p. 762, Note 7: If title to real property is at issue in an action in a California state or any federal court, the plaintiff may record a notice of lis pendens. This notice of pending litigation is filed in the county where the real property is located. CCP § 405 et seq. However, the statute does not authorize recording notice of litigation pending in courts of another state. Formula, Inc. v. Superior Court, 168 Cal.App.4th 1455, 86 Cal.Rptr.3d 341 (2008) (ordering expungement of notice of lis pendens on California real property based on action in a Florida state court). Nor may a party to a pending arbitration record a notice of pendency of action without first filing a civil action in Superior Court. Manhattan Loft, LLC v. Mercury Liquors, Inc., ___ Cal.Rptr.3d ____, 2009 WL 1219732.

2. Temporary Restraining Orders and Preliminary Injunctions
p. 777, Note 3: Another good example of a careful delineation of the preliminary injunction standards is contained in Right Site Coalition v. Los Angeles Unified School District, 160 Cal.App.4th 336, 72 Cal.Rptr.3d 678 (2008) (remanding denial of preliminary injunction sought by group trying to stop demolition of houses on a site designated for a new school).

............................................B. Enforcement of Judgments and Orders
1. Execution
* p. 789 n.1: A sister state judgment must be valid in order to be enforced. A judgment defendant may challenge the sister state judgment for lack of "fundamental jurisdiction" (personal or subject matter jurisdiction) at any time. Airlines Reporting Corp. v. Renda, 177 Cal.App.4th 14, 99 Cal.Rptr.3d 66 (2009).

p. 790 n. 2: The California Supreme Court has established that a judgment creditor may seek recognition of a foreign money judgment as soon as the judgment is final, conclusive, and enforceable under the laws of the country where it was rendered. The creditor need not wait until all appeals have been exhausted, so long as the rendering country would enforce the judgment. Once the judgment is enforceable, a cause of action for recognition (also called "domestication") accrues, which the judgment creditor must bring within 10 years. Manco Contracting Co. v. Bezdikian, 45 Cal.4th 192, 85 Cal.Rptr.3d 233, 195 P.3d 604 (2008).
.....For discussion of whether and when a foreign judgment will be enforced in a court in California under the Uniform Foreign-Country Money Judgments Recognition Act, CCP § 1713 et seq., see Manco Contracting Co. v. Bezdikian, 45 Cal.4th 192, 85 Cal.Rptr.3d 233, 195 P.3d 604 (2008) (judgment from Qatar); Plata v. Darbun Enterprises, Inc., 2009 WL 975233 (S.D.Cal.2009) (Mexico); and Java Oil Ltd. v. Sullivan, 168 Cal.App.4th 1178, 86 Cal.Rptr.3d 177 (2008) (Gibraltar).

p. 790 n. 4: Note that the judgment debtors, the Bermans, claimed that "the Berman Corporation" had a first deed of trust against their family home. Had the Bermans conveyed title to the home directly to the corporation, they would have lost their right to the homestead exemption. The exemption is available only to a natural person, not to a corporation. California Coastal Commission v. Allen, 167 Cal.App.4th 322, 83 Cal.Rptr.3d 906 (2008). The proper procedure for executing on a property subject to the homestead exemption is reviewed in Wells Fargo Financial Leasing, Inc. v. D & M Cabinets, 177 Cal.App.4th 59, 99 Cal.Rptr.3d 97 (2009).

p. 791, Note on Receivers: A receiver also may be appointed when a property owner has failed to
repair or abate conditions that violate state or local building standards and substantially endanger the health and safety of residents or the public. City of Santa Monica v. Gonzalez, 43 Cal.4th 905, 76 Cal.Rptr.3d 483, 182 P.3d 1027 (2008).

........................................................C. Costs and Attorney's Fees
1.Costs
p. 807, Note 1(b): Compare Goodman v. Lozano, 159 Cal.App.4th 1313, 72 Cal.Rptr.3d 275 (2008), which goes to great lengths to show how the Wakefield majority misinterpreted the statute regarding who is a prevailing party in the context of the problem.

p. 808, Note 3: The California Supreme Court has decided that the fees for an expert hired by a party may not be recovered as part of an award of "attorney's fees" under the private attorney general statute. More express authority than CCP § 1021.5 is required. Olson v. Automobile Club of Southern California, 42 Cal.4th 1142, 74 Cal.Rptr.3d 81, 179 P.3d 882 (2008). For an example of such express authority allowing the award of fees of experts not ordered by the court, see Anthony v. City of Los Angeles, 166 Cal.App.4th 1011, 83 Cal.Rptr.3d 306 (2008) (FEHA, Gov't Code § 12965(b), provides specific authority).

2. Attorney's Fees
p. 818, Note 1: For an example of a denial of attorney's fees under CCP § 1021.5 because the gains achieved by the plaintiffs in avoiding layoffs were personal and any benefit to the public was incidental, see Roybal v. Governing Board of Salinas City Elementary School District, 159 Cal.App.4th 1143, 72 Cal.Rptr.3d 146 (2008).
.....The test for awarding fees under CCP § 1021.5 is fully analyzed in Grodensky v. Artichoke Joe's Casino, 171 Cal.App.4th 1399, 91 Cal.Rptr.3d 732 (2009) (recovery in class action).

p. 820, Note 4: In cases where the plaintiff obtained relief from the court, attorney's fees may be awarded if the plaintiff succeeded on any significant issue in the litigation, which achieved some of the benefit sought in bringing suit. In contrast, in cases where attorney's fees are requested under the catalyst theory, the plaintiff must obtain the primary relief sought from the defendant through settlement or through the defendant's actions prompted by the suit. Marine Forests Society v. California Coastal Commission, 160 Cal.App.4th 867, 74 Cal.Rptr.3d 32 (2008). In Graham v. DaimlerChrysler Corp., 34 Cal.4th 553, 21 Cal.Rptr.3d 331, 101 P.3d 140 (2004), the California Supreme Court imposed a prerequisite in catalyst cases that no fee could be awarded under CCP § 1021.5 unless the plaintiff had made an attempt to settle the matter prior to filing an action. The Court has also determined that in a non-catalyst case, the plaintiff is not required to make an attempt to settle in advance in order to be eligible for attorney's fees as a private attorney general. That a plaintiff might choose not to propose or accept a reasonable settlement offer is a circumstance that potentially weighs against an award of fees, but it is not an absolute requirement if the plaintiff does become the prevailing party by obtaining court-ordered change in the parties' legal relationship. Vasquez v. State, 45 Cal.4th 243, 85 Cal.Rptr.3d 466, 195 P.3d 1049 (2008).

p. 820, Note 5: Assume that X, representing a class, sued a county in Case 1 to stop what X viewed as an illegal practice. While Case 1 pending, the county filed an amicus brief in Case 2, which raised the same legal issue. X filed an amicus brief in Case 2, opposing the county's amicus brief. After Case 2 was decided in favor of the legal position X supported as an amicus, Case 1 was settled on terms that made X the prevailing party in that action. Does Connerly preclude awarding X attorney's fees in Case 1 for the work performed in opposing the county's amicus brief in Case 2? See Ramon v. County of Santa Clara, ___Cal.App.4th___, 93 Cal.Rptr.3d 278 (2009) (not precluded).

p. 821, new Note 6: It is vital that the court consider a request for attorney's fees under the applicable statute. For example, in Chavez v. City of Los Angeles, 160 Cal.App.4th 410, 72 Cal.Rptr.3d 783, review granted and opinion superseded, 76 Cal.Rptr.3d 681, 183 P.3d 383 (2008), after five years of litigation in an employment retaliation action, a jury awarded the plaintiff $11,500. The plaintiff sought approximately $871,000 in attorney's fees under the Fair Employment and Housing Act. Cal. Gov't Code § 12965(b). The trial court instead denied costs under CCP § 1033(a), because Chavez's ultimate recovery was below the jurisdictional minimum for an unlimited civil case. The Court of Appeal reversed. Although the latter statute was intended to encourage the pursuit of minor grievances in courts of limited jurisdiction, that rationale was inapposite in a claim of statutory discrimination under FEHA or other civil rights actions, which do not always involve large sums of money. The California Supreme Court has granted review.

p. 830, Note 1: Similarly, an attorney who responds in pro se to a filing abuse may not recover sanctions under CCP § 128.7 in the form of an award of attorney's fees. Musaelian v. Adams, 45 Cal.4th 512, 87 Cal.Rptr.3d 475, 198 P.3d 560 (2009).

p. 830, Note 2: If the prevailing party in a contract dispute has obtained an unqualified success, it is entitled to fees as a matter of law. Otherwise, the court has discretion to award attorney's fees to the prevailing party by determining who has recovered "greater relief" in the action. This is measured by evaluating the parties' comparative litigation success. Silver Creek, LLC v. Blackrock Realty Advisors, Inc., 173 Cal.App.4th 1533, 93 Cal.Rptr.3d 864 (2009). In contrast, if a statutory cause of action provides for one way fee shifting, that provision is deemed to be a part of the contract between the parties and therefore trumps any conflicting "prevailing party" provision in the agreement. D.C. v. Harvard-Westlake School, 176 Cal.App.4th 836, 98 Cal.Rptr.3d 300 (2009) (prevailing defendant may not recover fees under the contract because only prevailing plaintiffs could recover fees under the hate crimes legislation at issue).

p. 831, New Note 4.5: In contrast to reciprocal attorney's fees provisions in contracts, in actions under most statutes that allow a court to award reasonable attorney's fees to the prevailing party, the fee awards are not made on a reciprocal basis. For example, in exercising its discretion under anti-discrimination statutes, California courts have followed federal law. A trial court should ordinarily award attorney's fees to a prevailing plaintiff unless special circumstances would render an award of fees unjust. A prevailing defendant, however, is awarded fees under a statute only "in the rare case in which the plaintiff's action was frivolous, unreasonable, or without foundation." Young v. Exxon Mobil Corp., 168 Cal.App.4th 1467, 1474, 86 Cal.Rptr.3d 507, 512 (2008) citing Christiansburg Garment Co. v. EEOC , 434 U.S. 412, 418–419, 98 S.Ct. 694, 54 L.Ed.2d 648 (1978).
.....Some statutes are interpreted to allow attorney's fees to be awarded on a reciprocal basis, but they are less common. E.g., Krug v. Maschmeier, 172 Cal.App.4th 796, 91 Cal.Rptr.3d 452 (2009) (first opinion in 30 years to hold that prevailing defendant in an action for injunctive relief against harassment may be awarded fees). And in these relatively rare instances, it is appropriate for the trial court to take the losing party's financial condition into account in determining what fee is reasonable, in order to avoid creating an unfair burden on the right to access to the courts. Garcia v. Santana, ___Cal.App.4th___, ___Cal.Rptr.3d___, 2009 WL 1479306.

p. 832, Note on Adjusting the Lodestar in State and Federal Court: For an example of how to adjust the lodestar, see Harman v. City and County of San Francisco, 158 Cal.App.4th 407, 69 Cal.Rptr.3d 750 (2007). In Harman, the plaintiffs sought damages under state and federal civil rights law, but prevailed on the latter claim only. The trial court set (and the appellate court affirmed) the lodestar for the plaintiffs' partial success on the basis of precedent for the award of fees under 42 USC § 1988.
.....The U.S. Supreme Court has agreed to consider whether a reasonable attorney's fee award under a federal fee-shifting statute can ever include an enhancement based solely on the quality of the attorney's performance and the results obtained, when these factors already are included in the lodestar calculation. Kenny A. ex rel. Winn v. Perdue, 547 F.3d 1319 (11th Cir.2008), cert. granted, 129 S.Ct. 1907 (2009).

p. 830, Note 3: One court summarized the distinction as follows:

[I]f an unlawful detainer action is based on an alleged breach of the lease during an unexpired term (e.g., nonpayment of rent, improper use of the premises), then it is an action sounding in contract. If an unlawful detainer is brought to oust a holdover tenant following expiration of a lease, then the action is premised on tortious conduct (e.g., trespass), and it is an action sounding in tort. By logical extension, if the unlawful detainer action is premised on a breach of the lease, like any other action on a contract, it is subject to section 1717, subdivision (b)(2).

Mitchell Land and Improvement Co. v. Ristorante Ferrantelli, Inc., 158 Cal.App.4th 479, 486, 70 Cal.Rptr.3d 9, 15 (2007) (citing Drybread).