Filed 3/20/15




                              CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                               FOURTH APPELLATE DISTRICT

                                         DIVISION THREE



HYUNDAI MOTOR AMERICA,
                                                     G051279
    Petitioner,
                                                     (Super. Ct. No. 30-2013-00627447)
        v.
                                                     OPINION
THE SUPERIOR COURT OF ORANGE
COUNTY,

    Respondent,

ADAM ROSEN,

    Real Party in Interest.


                  Original proceedings; petition for a writ of mandate to challenge an order of
the Superior Court of Orange County, Kirk H. Nakamura, Judge. Petition granted.
                  Beatty & Myers, LLP, Sean D. Beatty, John W. Myers IV and Katrina J.
Walasik for Petitioner.
                  No appearance for Respondent.
                  Anderson Law Firm and Martin W. Anderson for Real Party in Interest.
                                     *          *           *
THE COURT:*
              “Nature, not judges, should be in charge of making mountains out of mole
hills.” (Crum v. City of Stockton (1979) 96 Cal.App.3d 519, 524 (conc. & dis. opn. of
Reynoso, J.).)
              This writ petition came to this court on a request by petitioner Hyundai
Motor America (Hyundai) to stay a scheduled judgment debtor examination of its
president and chief executive officer over a dispute regarding an attempt by real party
Adam Rosen (Rosen) to collect supposed postjudgment interest of $462.50 on an attorney
fee award of $42,203.
              Hyundai promptly paid the entire fee award, but refused to pay any
additional sums for interest. Rosen accepted the tendered amount but deducted $462.50
as an interest payment, allegedly leaving part of the principal balance unpaid. From this
initial $462.50, Rosen now claims that Hyundai owes more than $13,000 for additional
interest and attorney fees in less than a six-month period — one of the best growth
investments we have seen.
              There is a short answer to Rosen’s claim for postjudgment interest: the
attorney fee order was filed months before the entry of the final judgment in this matter.
By law, postjudgment interest accrues in lemon-law cases at the time the final judgment
is entered. (Code Civ. Proc., § 685.020; Civ. Code, § 1794, subd. (d).) When respondent
court filed and entered its final judgment on November 21, 2014, Rosen’s attorney fee
award had long been paid. As a result, Rosen is not entitled to postjudgment interest of
$462.50, or in any amount.




       * Before Rylaarsdam, Acting P.J., Aronson, J., and Thompson, J.


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                                               I
                   STATEMENT OF FACTS AND PROCEDURAL HISTORY

              A.        Hyundai’s Statutory Offer and First Payment of $36,484 to Rosen
              In July 2010, Rosen bought a 2010 Hyundai Tucson for $29,455. In
January 2013, Rosen filed a lemon law action against Hyundai under the Song-Beverly
Consumer Warranty Act (Civ. Code, § 1790 et seq.; Song-Beverly Act), alleging various
defects, including engine hesitancy, jerkiness and sudden and unexpected stops. Rosen
sought a refund for the car, and civil penalties, as well as attorney fees and prejudgment
interest.
              In August 2013, Hyundai served Rosen with a statutory offer to
compromise pursuant to Code of Civil Procedure section 998 (section 998). In exchange
for the return of the vehicle with clear title and dismissal of the action with prejudice,
Hyundai agreed to pay Rosen $20,095 and the lien holder $12,157, for a total payment of
$32,252, as well as any additional actual payment for registration fees or rental car
expenses, “if different.” Hyundai also offered to pay Rosen’s “reasonably incurred
attorney’s fees and court costs to be determined by the court on noticed motion.”
              Rosen filed a notice of acceptance, but also applied for the entry of a
judgment against Hyundai. Rosen submitted a proposed judgment to respondent court
for its signature. Hyundai objected, claiming a section 998 offer can be conditioned on a
release or dismissal.
              On October 15, 2013, respondent court sustained Hyundai’s objection and
declined to sign Rosen’s proposed judgment. Respondent court determined that
Hyundai’s proposed procedure for dismissal of the lemon law suit was consistent with
section 998. Rosen unsuccessfully filed a petition for writ of mandate. (Rosen v.
Superior Court, Feb. 6, 2014 (G049314).)




                                              3
              On January 24, 2014, Hyundai submitted a check to Rosen in the amount of
$24,659, as well as a lien payoff check in exchange for Rosen’s execution of the
necessary documents to transfer the vehicle back to Hyundai. Rosen’s counsel declined
to accept the tender unless it was “unconditional.” Counsel voided the check and
returned it to Hyundai.
              In March 2014, the parties stipulated to allow respondent court to decide
the following issues by motion: (1) Rosen’s reasonable attorney fees and reasonable
costs under the section 998 offer, and (2) whether Rosen was entitled to recover interest
from Hyundai “on amounts paid under [Rosen’s] accepted Code of Civil Procedure
section 998 offer, and if so, the amount due.”
              On April 2, 2014, Hyundai tendered a new check for $26,579 to Rosen and
another check to the lienholder for $9,905, for a total payment of $36,484. Rosen
accepted the check and surrendered the vehicle.

              B.     The Parties’ Dispute on Interest and Attorney’s Fees on the First
                     Payment of $36,484 to Rosen
              In May 2014, Rosen moved for an order to award him attorney fees and
costs of $60,536, and an additional award of interest of $1,431. Rosen sought interest at
annual rate of 10 percent from the date he accepted Hyundai’s section 998 offer on
August 20, 2013, pursuant to Civil Code section 3289, subdivision (b), as well as some
additional sums.
              On July 31, 2014, respondent court held a hearing on Rosen’s motion for
attorney fees and interest. The court, by unsigned minute order, awarded Rosen $42,203
in attorney fees and costs, and denied Rosen’s request for interest on the section 998
offer. The court ordered that Rosen’s action be dismissed with prejudice, and directed
Rosen to give notice.
              On September 24, 2014, Rosen filed a notice of appeal from the July 31,
2014 minute order. (Rosen v. Hyundai Motor America, G050760.) On October 27, 2014,


                                             4
this court issued an order informing Rosen that it was considering dismissing his appeal
“because a minute order from the trial court dismissing a case is not an appealable order.
An appeal may be taken only from the subsequent judgment of dismissal signed by the
trial court. (Code Civ. Proc., § 581d; Powell v. County of Orange (2011) 197
Cal.App.4th 1573, 1578.)”
              On October 31, 2014, Rosen submitted a proposed judgment, which
respondent court signed on November 21, 2014. This court thereupon issued an order
treating Rosen’s premature notice of appeal as if it were filed immediately after the
November 21, 2014 judgment, and directing that the appeal proceed. (Cal. Rules of
Court, rule 8.104(d)(2).)

              C.     Hyundai’s Second Payment of $42,203 to Rosen and the Parties’
                     Dispute Over Interest and Attorney’s Fee on the Second Payment
              On September 8, 2014, Hyundai submitted a check for $42,203 as payment
for attorney fees and cost award in the July 31, 2014 minute order. Rosen’s counsel
accepted the check, but claimed it was short by $462.50, which counsel asserted was the
amount of postjudgment interest from the date of the minute order. Counsel explained
that he applied Hyundai’s tender to interest first and then to principal, leaving $462.50 in
principal still due and owing, along with interest and enforcement costs.
              On September 19, 2014, Rosen filed an order for Hyundai’s president,
Dave Zuchowski, to appear for a judgment debtor’s examination on October 23, 2014.
Rosen claimed that Hyundai owed accrued interest of $462.50, and sought additional
enforcement fees and costs of $662.
              On October 6, 2014, Hyundai filed a motion to strike Rosen’s costs
memoranda because “[t]here is, and never was, any ‘judgment’ in this case.” On
December 18, 2014, respondent court, by minute order, denied Hyundai’s motion to
strike. Respondent court determined that its July 31, 2014 minute order was enforceable




                                             5
as a money judgment, and bore postjudgment interest of 10 percent per annum from July
31, 2014 onwards.
              Rosen continued to file additional cost memoranda. By mid-December
2014, Rosen sought a total of $894 in accrued interest, and $11,752 in attorney fees and
other collection costs. Rosen scheduled a new judgment debtor’s examination of
Hyundai’s chief executive officer and president for January 15, 2015.
              In its writ petition, Hyundai prayed that this court direct respondent court to
vacate its December 18, 2014 minute order and any further enforcement efforts by Rosen,
including the scheduled judgment debtor’s examination.
              On January 14, 2015, we granted Hyundai’s stay request, and issued a
Palma notice. (See Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 179
(Palma). Rosen filed an informal response, with supporting exhibits, on January 28,
2015.
                                             II
        NEITHER THE JULY 31, 2014 NOR THE AUGUST 29, 2014 ORDER IS A FINAL
                 JUDGMENT THAT BEARS POSTJUDGMENT INTEREST.
              Only final judgments bear postjudgment interest. Code of Civil Procedure
section 685.020, subdivision (a), provides, in pertinent part: “interest commences to
accrue on a money judgment on the date of entry of the judgment.”
              Courts have interpreted the statute to mean what it says: a judicial
determination regarding a money award does not bear postjudgment interest until a final
judgment is entered. “There can be no interest on a judgment prior to its rendition and
entry.” (Jones v. World Life Research Institute (1976) 60 Cal.App.3d 836, 847, italics
omitted.)
              In Pellegrini v. Weiss (2008) 165 Cal.App.4th 515, 532 (Pellegrini), the
Court of Appeal was called upon to determine the trigger point from which interest
commenced to run on a $300,000 jury award of damages to plaintiff arising from a failed

                                             6
real estate joint venture with defendant. The jury returned with its verdict in July 2005,
and the trial court entered judgment in October 2005, and vacated it and entered a new
judgment in January 2006. Citing Code of Civil Procedure section 685.020, Pellegrini
held that postjudgment interest accrued only from the entry of the final judgment in
January 2006, not from the previous (and now vacated) judgment date. (Pellegrini,
supra, 165 Cal.App.4th at p. 532.)
              The Song-Beverly Act bears out the need for a judgment (or its equivalent)
as a final disposition of the litigation to which the attorney fee award attaches. Civil
Code section 1794, subdivision (d), provides that the prevailing buyer in a lemon law
case “shall be allowed by the court to recover as part of the judgment a sum equal to the
aggregate amount of costs and expenses, including attorney’s fees based on actual time
expended, determined by the court to have been reasonably incurred by the buyer in
connection with the commencement and prosecution of such action.” (Italics added.)
              What is the final judgment here? The final judgment is the judgment of
dismissal filed and entered on November 21, 2014. Because the judgment of dismissal
serves as the final disposition of Rosen’s action against Hyundai, it satisfies the
requirement in the Song-Beverly Act that any fee award be part of the judgment in favor
of the prevailing buyer. “Such final dispositions . . . [are] tantamount or equivalent to a
judgment for purposes of Code of Civil Procedure section 998 and/or for allowing the
trial court to determine the prevailing party and to award costs and fees under fee-shifting
statutes.” (Wohlgemuth v. Caterpillar Inc. (2012) 207 Cal.App.4th 1252, 1263
(Wohlgemuth).)
              Wohlgemuth is directly on point. In Wohlgemuth, the Court of Appeal
affirmed an award of attorney fees and costs to a buyer who dismissed his action
following his acceptance of the manufacturer’s section 998 offer. For purposes of the
Song-Beverly Act, Wohlgemuth held that the term “judgment” in Civil Code section
1794, subdivision (d), could include any final determination of the rights of the parties in

                                              7
an action or proceeding, including a compromise agreement calling for a payment by a
vehicle manufacturer and dismissal of the lemon law action by the buyer. (Wohlgemuth,
supra, 207 Cal.App.4th at p. 1260.) “Thus, where a dismissal with prejudice is entered as
part of a compromise agreement under Code of Civil Procedure section 998, it is the
equivalent of a judgment for purposes of [Civil Code] section 1794(d).” (Id. at p. 1261.)
              Rosen himself admits to as much. In his opposition to Hyundai’s writ
petition, he states: “[t]he final judgment in this action was entered on November 21,
2014.” By that time, Hyundai had fully paid all the amounts awarded by respondent
court, including the direction in the unsigned July 31, 2014 minute order for attorney
fees. There being no final judgment for damages, costs, or fees, there is no basis upon
which to start the calculator running for postjudgment interest.
              Rosen contends, and respondent court held, that there is an earlier final
judgment to which postjudgment interest attaches: the July 31, 2014 minute order which
adjudicated the amount of attorney fees to which Rosen was entitled under the Song-
Beverly Act. Rosen relies on the fact that California’s Enforcement of Judgments Law
(EJL) defines the word “judgment” to mean “a judgment, order, or decree entered in a
court of this state.” (Code Civ. Proc., § 680.230.) In like fashion, respondent court noted
that the July 31, 2014 minute order “is enforceable as a money judgment under the
Enforcement of Judgments Law. (CCP 680.230, CCP 680.270.)”
              Rosen and respondent court are mistaken. The EJL does not automatically
convert every statutory minute order, such as the July 31, 2014 minute order, into an
enforceable judgment. “[L]itigants do not have license to substitute the word ‘order’
everywhere the word ‘judgment’ appears in the EJL, regardless of the circumstances or
statutory intent.” (Lucky United Properties Investment, Inc. v. Lee (2010) 185
Cal.App.4th 125, 144.)
              In order to be an enforceable judgment for attorney fees under the Song-
Beverly Act, to which postjudgment interest begins to run, the judgment or order must

                                             8
finally dispose of the rights of the parties in the action. (See Civ. Code, § 1794, subd.
(d); Wohlgemuth, supra, 207 Cal.App.4th at pp. 1260-1261.)
              The July 31, 2014 minute order does not do so. The order itself recognized
its own inherent limitations because it also directed the dismissal of Rosen’s action
against Hyundai with prejudice. That is because an unsigned minute order itself cannot
serve as the judgment of dismissal. (Code Civ. Proc., § 581d; Powell v. County of
Orange, supra, 197 Cal.App.4th at p. 1578.)
              Following the July 31, 2014 minute order, Rosen submitted a proposed
order for the court’s signature, but he omitted the court’s directive in the minute order
about dismissing the lawsuit with prejudice. While respondent court signed the proposed
order on August 29, 2014, the order left Rosen’s action against Hyundai in limbo,
without a final disposition.
              Not until November 21, 2014, did respondent court sign and enter a final
dismissal of the underlying litigation. And that event only occurred after this court
ordered Rosen to do so on pain of dismissal of his appeal in case No. G050760.
              Under these circumstances, we cannot view either the July 31, 2014 minute
order or the subsequent August 29, 2014 order as a final judgment to which postjudgment
interest begins to run. Rosen’s counsel improperly deducted postjudgment interest from
Hyundai’s September 8, 2014 payment for attorney fees and costs because there was no
final judgment until November 21, 2014.
                                             III
    A PEREMPTORY WRIT IN THE FIRST INSTANCE IS APPROPRIATE BECAUSE OF
                     HYUNDAI’S CLEAR ENTITLEMENT TO RELIEF.
              Hyundai lacks any plain, speedy or adequate remedy at law. Following
our Palma notice, Rosen filed a 24-page informal response and a 215-page set of
supporting exhibits. Hyundai’s entitlement to relief is “obvious” and “entirely clear.”
(Ng v. Superior Court (1992) 4 Cal.4th 29, 35.) No purpose is served by plenary

                                              9
consideration of the issue, and Rosen’s enforcement efforts have created a “compelling
temporal urgency.” (Lewis v. Superior Court (1999) 19 Cal.4th 1232, 1259-1260.)
              The procedural setting in this writ proceeding is similar to the procedural
setting in Ducoing v. Superior Court (2015) 234 Cal.App.4th 306 (Ducoing), where a
different panel of this court issued a peremptory writ in the first instance, following a
Palma notice and real parties’ opposition. In Ducoing, like here, the real parties initiated
enforcement proceedings, including a scheduled judgment debtor’s examination, which
gave rise to a compelling need for an expedited decision. (See also Fox Johns Lazar
Pekin & Wexler, APC v. Superior Court (2013) 219 Cal.App.4th 1210, 1216 [writ of
mandate to resolve proper scope of proposed judgment debtor’s examination against third
party].)
              A cautionary note about litigation tactics. As we have noted, this
proceeding came to us on Hyundai’s emergency request to stay the scheduled judgment
debtor’s examination of its chief executive officer in connection with an alleged “debt” of
$462.50. We cannot fathom any legitimate reason for such a statutory procedure under
the circumstances of this case, given the minimal amount and questionable provenance of
the “debt,” and Hyundai’s obvious ability to pay.
              Assuredly, such a tactic was designed to get Hyundai’s attention. But it
had the unintended effect of attracting our attention as well, giving rise to the
extraordinary remedy of a peremptory writ in the first instance. We doubt this is a wise
use of anyone’s resources. 1


       1 None of the parties has briefed – and therefore we do not address – the
circumstances in which a judgment creditor may conduct a so-called “apex” deposition of
a high-ranking officer or executive in the context of a judgment debtor’s examination.
(See Code Civ. Proc., § 708.150; and see Liberty Mutual Ins. Co. v. Superior Court
(1992) 10 Cal.App.4th 1282, 1287.) We note that trial courts have discretion “on motion
of the person to be examined or on its own motion, [to] make such protective orders as
justice may require.” (Code Civ. Proc., § 708.200.)

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                                        DISPOSITION
              Let a peremptory writ of mandate issue in the first instance directing
respondent court to vacate its order of December 18, 2014 denying petitioner’s motion to
strike costs, and to enter a new and different order granting petitioner’s motion. Upon
finality of this decision as to this court, the temporary stay order of the judgment debtor’s
examination of petitioner’s chief executive officer and president shall be dissolved.
Petitioner shall recover its costs in this writ proceeding.




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