Gilman v. Dalby

• Citation: 276 Cal.Rptr.3d 137,61 Cal.App.5th 923
• Decision Date: 12 March 2021
• Docket Number: C066930
• Court: California Court of Appeals
• Parties: Kevan Harry GILMAN, Plaintiff and Respondent, v. Lena L. DALBY et al., Defendants and Respondents; Tammy R. Phillips et al., Claimants and Appellants; Adam C. Thiel, Respondent.

61 Cal.App.5th 923

276 Cal.Rptr.3d 137

Kevan Harry GILMAN, Plaintiff and Respondent,

v. Lena L. DALBY et al., Defendants and Respondents;Tammy R. Phillips et al., Claimants and Appellants;Adam C. Thiel, Respondent.

C066930

Court of Appeal, Third District, California.

Filed March 12, 2021

As Modified on Denial of Rehearing April 8, 2021

Certified for Partial Publication.^*

Charles Q. Jakob, Carmichael, for Claimants and Appellants.

Dreyer Babich Buccola Wood Campora, Steven M. Campora and Marshall R. Way, Sacramento, for Defendants and Respondents Lena L. Dalby et al.

Kevan Harry Gilman, in pro. per., for Plaintiff and Respondent.

Law Office of Joseph C. Maher and Joseph C. Maher II, Beverly Hills, for Respondent Adam C. Thiel.

BLEASE, Acting P. J. Code of Civil Procedure ¹ section 708.410 allows a party who has a money judgment against another to obtain a lien on that person's right to money in a later lawsuit. In particular, it allows a "judgment creditor who has a money judgment against a judgment debtor who is a party to a pending action" to obtain a lien on "[t]he rights of such judgment debtor to money or property under any judgment subsequently procured in the action."

We consider here an uncommon application of this statute. The judgment creditors in this case obtained, per section 708.410, a lien on "[t]he rights of [the] judgment debtor to money or property under any judgment" in a certain lawsuit. In the course of that suit, the judgment debtor paid money to another party pursuant to an adverse judgment, but, following reversal of that judgment, the trial court ordered that money to be returned to the judgment debtor. We consider in this appeal whether the judgment creditors’ lien attached to the money ordered returned to the judgment debtor.

Unlike the trial court, we conclude it potentially did, though we find further factual review is required to resolve the issue. Section 708.410 speaks broadly of a judgment creditor's ability to obtain a lien on a judgment debtor's right "to money ... under any judgment" in a lawsuit, and another statute that is part of the same statutory scheme defines the word "judgment" to include, relevant here, an order. Applying this definition to section 708.410, we find a judgment creditor may obtain a lien on a judgment debtor's right "to money under any [order]" in a lawsuit, including the type of order in our case. Because the trial court here interpreted section 708.410 differently, we reverse its decision in part and remand for reconsideration.

BACKGROUND

Kevan Harry Gilman, for reasons that are irrelevant here, sued Lena L. Dalby, her law firm, and the individual members of the firm (collectively, the Dalby Respondents) in 2004 to recover funds he believed he was owed. ( Gilman v. Dalby (2009) 176 Cal.App.4th 606, 610, 98 Cal.Rptr.3d 231.)

We first considered this matter in 2009. We considered then, among other things, the trial court's granting of the Dalby Respondents’ motion for summary judgment and its ordering Gilman to pay the Dalby Respondents $17,229.27 in attorney fees and costs. Although we agreed with the trial court in part, we found the evidence insufficient to warrant the summary adjudication of one of Gilman's causes of action. We thus reversed the summary adjudication of that one cause of action and also reversed the related award of $17,229.27 in fees and costs. ( Gilman v. Dalby, supra , 176 Cal.App.4th at p. 620, 98 Cal.Rptr.3d 231.)

This current appeal concerns the later return of that $17,229.27 to Gilman, and it involves two new parties, Tammy R. Phillips and her eponymous law firm (collectively, Appellants), who hold outstanding money judgments against Gilman in an amount well over $17,229.27.

A month after our 2009 decision, Appellants filed a notice of lien in this case under section 708.410. Relevant here, that statute allows "[a] judgment creditor who has a money judgment against a judgment debtor who is a party to a pending action or special proceeding [to] obtain a lien under this article, to the extent required to satisfy the judgment creditor's money judgment, on ... [¶] [t]he rights of such judgment debtor to money or property under any judgment subsequently procured in the action or proceeding." ( § 708.410, subd. (a)(2).) Based on this language, Appellants alleged in their notice of lien that they were entitled to "any rights to money or property under any judgment, order, or settlement taken by GILMAN in this action."

A couple months after Appellants filed their notice of lien, Gilman filed a motion for restitution, seeking a return of the $17,229.27 he paid to the Dalby Respondents. Gilman did not notify Appellants. The trial court agreed restitution was appropriate and thus "ordered [the Dalby Respondents] to restore the $17,229.27 to [Gilman]." After the Dalby Respondents paid this amount, Gilman dismissed his case against the Dalby Respondents without prejudice.

Five months after Gilman's dismissal, Appellants filed a motion to strike the allegedly invalid dismissal and for an order of satisfaction of lien. Relying on section 708.440, Appellants contended their filed lien should have prevented Gilman from dismissing his case because, per section 708.440, judgment debtors generally may not dismiss their actions "without the written consent of the judgment creditor or authorization by order of the court." ( § 708.440, subd. (a).) Appellants then contended the court should, after vacating the dismissal, order the Dalby Respondents and Gilman to pay them the $17,229.27. Although not entirely clear, they appeared to reason that Gilman should be ordered to pay at least some of this amount because he sought restitution for himself even though he had notice of Appellants’ lien. And, relying on section 708.470, they reasoned the Dalby Respondents should similarly be ordered to pay this amount, at least to the extent Gilman did not pay it, because they paid Gilman even though they too had notice of Appellants’ lien. ( § 708.470, subd. (c) [a party who, "having notice of the lien," "pa[ys] an amount to the judgment debtor that was subject to the lien" may be liable to the creditor].) Appellants also asserted that Gilman should be ordered to pay for their costs of enforcement and that Gilman and his attorney, Adam C. Thiel, should be sanctioned. Finally, unless they received their money, Appellants asked the court to report Gilman and Thiel to the State Bar of California.

The trial court rejected Gilman's several claims on October 27, 2010. It first questioned whether it had jurisdiction, given Gilman's previous dismissal of the action. But assuming it had jurisdiction, it rejected Appellants’ claim that they had a lien on the $17,229.27. Appellants’ lien, the court explained, reached only money that Gilman was entitled to receive under a "judgment." But the restitution order, the court concluded, was not a "judgment." It reasoned the order "was not based on any right to payment in the action," but only returned the parties "to the status quo." The court also rejected Appellants’ request for sanctions against Gilman and Thiel and "decline[d] to report [Gilman] to the State Bar."

After the court issued its tentative decision denying Appellants’ claims, but before its final order, Appellants filed a memorandum of costs seeking additional payment for the costs of enforcement. The Dalby Respondents in response filed a motion to tax costs, asserting, among other things, that Appellants were not entitled to their requested costs because they were not the prevailing parties. Appellants opposed the motion. They contended the Dalby Respondents’ motion should be denied because Appellants had only sought enforcement costs from Gilman, not from the Dalby Respondents.

The trial court agreed with Appellants. Because Appellants conceded they had neither the intention nor the right to impose the costs claimed on the Dalby Respondents, the court found it unnecessary to consider the merits of the Dalby Respondents’ motion. It thus denied the Dalby Respondents’ motion to tax on December 16, 2010. At the close of the order, however, the court added "that no fees or costs shall be awarded against the [Dalby Respondents]"—in effect largely granting the Dalby Respondents their requested relief.

Appellants timely appealed.²

DISCUSSION

I

Appellants’ Requests for Judicial Notice

Before turning to the merits, we consider Appellants’ three requests for judicial notice.

We grant judicial notice for most of their submitted documents. These include several filings from Gilman's bankruptcy proceedings (requests 1, 16, 17, 23), the California Law Revision Commission's 1982 report on several judgment lien statutes (request 2), a 2011 report from the Administrative Office of the Courts (request 4), several filings from the trial court proceedings in this case (requests 6, 18, 20), Gilman's discovery responses from another case (requests 7-9), the docket from the first appeal in this case (request 10), Appellants’ renewal of their judgments against Gilman (request 14), several filings from Gilman's related suit against Appellants (request 15), and the bankruptcy court's docket (requests 16, 24). ( Evid. Code, §§ 452, subds. (c), (d), 459, subd. (a).)

We deny Appellants’ remaining requests. We deny three of their requests because Appellants fail to explain "why the matter is subject to judicial notice under Evidence Code section 451, 452, or 453." ( Cal. Rules of Court, rule 8.252 (a)(2)(C).) That includes a receipt (request 3), two website printouts (requests 3, 5), and, according to Appellants, "Gilman[’s] concession [that] Thiel was his counsel of record" (request 22).

We deny three more of their requests because they concern irrelevant matters. These three requests are the Dalby Respondents’ application for an extension of time to file their brief on appeal (request 11), the docket from Gilman's suit against one of his former attorneys (request 12), and part of a State Bar Court's 2015 ...