Filed 5/13/21 R Consulting & Sales v. Kim CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
R CONSULTING & SALES, INC., D076749
Plaintiff, Cross-defendant and
Respondent,
(Super. Ct. No. 37-2015-
v. 00002561-CU-BC-CTL)
ANDY KIM,
Defendant, Cross-complainant
and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Kenneth J. Medel, Judge. Affirmed in part and reversed in part; remanded
with instructions.
One and Peter R. Afrasiabi; Law Office of Kathryn M. Davis and
Kathryn M. Davis; and Paul N. Tauger, for Defendant, Cross-complainant,
and Appellant.
Metsch & Mason; Michael J. Mason and Paul S. Metsch, for Plaintiff,
Cross-defendant and Respondent.
Defendant Andy Kim1 appeals the trial court order (1) awarding
plaintiff R Consulting & Sales, Inc. (R Consulting) postjudgment attorney
fees of $387,464.50; and (2) denying his motion to modify a January 17, 2018
salary turnover order, as amended on April 17, 2019 (collectively, turnover
order).
Kim contends the trial court abused its discretion by including in the
fee award work performed by counsel of R Consulting that was not
compensable. Kim objected to multiple billing entries of R Consulting’s
counsel including on the grounds that counsel impermissibly “block billed”
(i.e., listing all tasks performed and the total time spent on the litigation on a
particular day, but not specifying the time spent on a particular task) and
made substantial redactions to myriad entries. In light of the block billing,
Kim further contends that the redactions made it impossible to discern
whether counsel’s work was reasonable and necessary for enforcement of the
judgment; and that the court thus erred in awarding R Consulting all of the
attorney fees it sought.
Kim on appeal also contends the court erred in denying his motion to
modify the turnover order by allegedly ignoring both uncontested evidence
showing a change of circumstances in his earnings since the turnover order
became effective, and South Korean law that prevented him from complying
with that order. For the first time on appeal, he further contends the court
lacked the authority to accept his consent to the terms of the turnover order.
1 Info Tech Corporation (Info Tech) was initially named as an appellant
in this case. On October 19, 2020, R Consulting moved to dismiss the appeal
of Info Tech because it allegedly lacked the legal capacity to defend an action
in California. On October 29, Info Tech filed a notice of dismissal of its
appeal. The following day, on this court’s own motion we dismissed the
appeal only as to Info Tech and denied as moot R Consulting’s motion to
dismiss.
2
As we explain, we agree with Kim that the court abused its discretion
when it included in the fee award amounts from billing entries that were so
heavily redacted it was difficult, if not impossible, to determine what work
was performed by counsel of R Consulting and thus, whether it was
reasonable and necessary to enforce the judgment. In reaching our decision,
we note the record is bereft of evidence to support the need for such
redactions, including on the basis of privilege, as R Consulting generally
claimed without analysis or explanation. We therefore reverse the attorney
fees award in favor of R Consulting to allow the trial court on remand to
reconsider that award in light of this opinion.
As we also explain, we conclude the court did not abuse its discretion in
denying Kim’s motion to modify the turnover order. We also conclude Kim
forfeited his contention that the court allegedly circumvented this state’s
wage garnishment law by issuing the turnover order in the first place.
OVERVIEW
Prior Appeal
This is the second time this case has been before this court. On
January 18, 2019, this court affirmed a judgment in favor of R Consulting for
over $2.4 million against Info Tech and Kim after a default prove-up hearing.
(See R Consulting & Sales Inc. v. Info Tech Corporation et al. (Jan. 18, 2019,
D072492 [nonpub. opn.]) (R Consulting I).) Prior to the prove-up hearing, the
trial court had issued a terminating sanction order dismissing the cross-
complaint of Info Tech and Kim and striking their answer, finding they had
intentionally destroyed potential evidence in contravention of R Consulting’s
right to discovery and the trial court’s previous orders.
By way of brief background, R Consulting in January 2015 sued Info
Tech and Kim for breach of an agreement to lease a private jet by failing to
3
make the required payments. R Consulting also alleged that Info Tech and
Kim contracted with vendors to perform services on the aircraft and provide
supplies; that they failed to pay the vendors; and that R Consulting would be
forced to make those payment to prevent liens being placed on the aircraft.
(R Consulting I, at pp. 1–2.) In April 2015, Info Tech and Kim cross-
complained alleging inter alia that R Consulting defrauded them by making
false representations about the aircraft. (Ibid.)
A discovery dispute ensued between the parties after R Consulting
moved to compel compliance with inspection demands including alleged
missing e-mails from servers belonging to Info Tech and Kim. After issuing
monetary sanctions against Info Tech and Kim, the court set a motion for
terminating sanctions after an expert of R Consulting concluded that Info
Tech and Kim had intentionally sabotaged their servers to prevent
R Consulting from obtaining the e-mails and other documents necessary to
prosecute its complaint and defend the cross-complaint. (R Consulting I, at
p. 6.)
The court tentatively granted terminating sanctions and later
confirmed its ruling after oral argument. (R Consulting I, at p. 7.) In so
doing, the court found that Info Tech and Kim “have tampered with the
servers such that useful data is no longer recoverable from the servers. The
Court can make no other conclusion but this was willful and designed to
avoid providing evidence in this action. This conduct is not only in violation
of discovery obligations but contravenes this Court’s orders since June,
2016. The Court thus GRANTS terminating sanctions against [Info Tech and
Kim]. The Court does not see any less restrictive remedy given the nature
and scope of the ‘missing evidence’ in this matter.” (Id. at p. 25.)
4
In affirming the judgment, we concluded in R Consulting I that
substantial evidence supported the trial court’s finding that Info Tech and
Kim had willfully tampered with their servers rendering it impossible to
recover any useful data from them. (R Consulting I, at p. 29.)
Current Dispute
Turnover Order
In September 2017, R Consulting filed a motion seeking an order
requiring Kim to turnover on a continuing basis copies of his paychecks and
paystubs and pay R Consulting 25 percent of his disposable income from
three companies he was affiliated with: Emajee, Inc. (Emajee), Outsourced
Solutions, Inc. (Outsourced Solutions), and IT Source Korea (sometimes
collectively, Companies). R Consulting argued such an order was necessary
because the Companies for which Kim “works, as either an employee or
contractor, are mere shells and shams, making the use of California’s wage
garnishment law ineffective to affect wage garnishment orders directed at
Kim’s ‘employers.’ ”
In support of its motion, R Consulting noted that under “normal
circumstances” it would avail itself of wage garnishment law to compel the
Companies “to deliver 25 [percent] of Kim’s disposable earnings on a regular
basis to the levying officer until the Judgment is satisfied. [¶] In this case,
however, the traditional means of wage garnishment, via California’s wage
garnishment law, will not be effective to cause Kim’s ‘employers’ to transfer
to the levying officer the amounts to which R Consulting is entitled because
Kim’s ‘employers’ are sham companies. Indeed, only an order that compels
Kim himself, not his ‘employers,’ to deliver to R Consulting 25 [percent] of his
disposable earnings, on a continuing basis, would be effective.” (Emphasis
omitted in original.) R Consulting supported its motion by relying on Kim’s
5
testimony from his August 25, 2017 debtor’s exam, documentary evidence,
and the deposition testimony of Kerry Park, an officer of one of the
Companies.
At his debtor’s exam, Kim testified he was the vice-president of Emajee,
but he did not know the name of the president of the company. However,
Park testified at Info Tech’s debtor’s exam that he neither knew the identities
of the officers of Emajee nor the business of the company, even though he was
identified as its president. R Consulting proffered evidence showing Emajee’s
corporate address was a commercial mailbox facility in Las Vegas, Nevada
known as “ ‘Mail Link,’ ” which was the same address that was on file with
the California Secretary of State. R Consulting argued that Emajee therefore
had no physical location for a levying officer to personally serve a wage
garnishment order.
Kim testified he worked as a sales manager for Outsourced Solutions.
R Consulting proffered evidence showing Outsourced Solutions paid the
monthly rent for Kim’s home located on Fremont Avenue in Los Angeles,
where he sometimes resided with his mother. This evidence included a copy
of the rental agreement, showing the monthly rent was $14,000.
Kim testified that he did not know who owned the Fremont home; that
he did not know who paid the rent on the home, but assumed it was probably
his mother; and that he did not know how much it cost to rent the home. In
response to Kim’s sworn testimony, R Consulting in support of its motion
lodged a copy of a check signed by Kim dated June 19, 2017, payable to the
owner of the Fremont home. R Consulting argued this evidence showed that,
similar to Emajee, Outsourced Solutions was a sham company controlled by
Kim; and that it also could not be relied upon to comply with a wage
garnishment order.
6
Kim also testified that he was one of two officers of IT Source Korea;
that he was unsure of the full name of the other officer; and that when in
South Korea, he met with this other officer “[o]nce in a while.” As was the
case with Emajee and Outsourced Solutions, R Consulting argued that IT
Source Korea could not be relied upon to comply with a wage garnishment
order; and that, in any event, enforcement of such an order would be
impractical because the company was headquartered in South Korea.
Kim in response to the motion filed a notice of “Non-Opposition,”
providing as follows: “PLEASE TAKE NOTICE that Judgment Creditor
R Consulting . . . and Judgment Debtor Andy Kim . . . have agreed to enter
into a Stipulation and Order regarding turnover and assignment orders
relating to Kim’s salaries (‘Stipulation’). However, as of the date of filing of
this Notice of Non-Opposition, Kim has not executed the Stipulation, and the
Stipulation has thus not been filed. Counsel for R Consulting will inform the
Court’s clerk once Kim executes the Stipulation, so that R Consulting’s
motion for a turnover order and assignment order regarding Kim’s salaries
can be taken off-calendar.” (Italics added.)
In the turnover order issued on January 17, 2018, the court noted that
a hearing on R Consulting’s motion had taken place on October 20, 2017,
(which was, like all others in this case, unreported); that “both parties
indicated a stipulation ha[d] been reached and the Court [had] GRANTED
the motion”; and that the parties appeared ex parte on January 11, 2018
“disputing portions of the stipulation.” The court in its January 17 order
agreed with R Consulting that the “typical garnishment procedure compelling
‘employers’ to deliver to the levying officer the required amounts under a
garnishment order is not workable in this case given the evidence presented
regarding the companies.” The court found that it had authority to require
7
Kim to assign 25 percent of his disposable earnings under Code of Civil
Procedure2 sections 1873 and 708.510.4
The turnover order provides as follows: “1. Commencing on
February 1, 2018, and continuing each month thereafter until the Judgment
is satisfied, Kim will pay directly to R Consulting 25% of his ‘disposable
earnings,’ as defined by . . . section 706.011(a), which defines ‘disposable
earnings’ as ‘the portion of an individual’s earnings that remains after
deducting all amounts required to be withheld by law[,]’ before the fifteenth
calendar day of each month from IT Source Korea, Emajee, Inc., and
Outsourced Solutions, Inc. (collectively, the ‘Monthly Payments’);
“2. Kim testified at his Judgment Debtor’s Exam that he earns the
following annual salaries from the three companies: $40,000 per year from
2 Unless noted otherwise, all further statutory references are to the Code
of Civil Procedure.
3 Section 187 provides: “When jurisdiction is, by the Constitution or this
Code, or by any other statute, conferred on a Court or judicial officer, all the
means necessary to carry it into effect are also given; and in the exercise of
this jurisdiction, if the course of proceeding be not specifically pointed out by
this Code or the statute, any suitable process or mode of proceeding may be
adopted which may appear most conformable to the spirit of this Code.”
4 Section 708.510, subdivision (a) provides: “Except as otherwise
provided by law, upon application of the judgment creditor on noticed motion,
the court may order the judgment debtor to assign to the judgment creditor or
to a receiver appointed pursuant to Article 7 (commencing with Section
708.610) all or part of a right to payment due or to become due, whether or
not the right is conditioned on future developments, including but not limited
to the following types of payments: [¶] (1) Wages due from the federal
government that are not subject to withholding under an earnings
withholding order. [¶] (2) Rents. [¶] (3) Commissions. [¶] (4) Royalties. [¶]
(5) Payments due from a patent or copyright. [¶] (6) Insurance policy loan
value.”
8
Emajee, Inc.; $35,000 per year from IT Source Korea and $30,000 per year
from Outsourced Solutions, Inc. Thus, Kim, is ordered to turn
over annually $10,000 from Emajee, Inc. salary; $8750 from IT Source Korea
salary and $7500 from Outsourced Solutions, Inc. salary[;]
“3. Before February 1, 2018, Kim will provide to R Consulting an
accounting of the exact amounts that are required under paragraph two (2)
from each of Kim’s bi-weekly or monthly direct deposit amounts or paychecks
from IT Source Korea, Emajee, Inc., and Outsourced Solutions, Inc.;
“4. Commencing on February 1, 2018, and continuing each month
thereafter until Judgment is satisfied, Kim will provide to R Consulting
copies of his bi-weekly or monthly direct deposit slips or paystubs and
paychecks before the fifteenth calendar day of each month from IT
Source Korea, Emajee, Inc., and Outsourced Solutions, Inc.[;]
“5. If Andy Kim has paid tax arising out of monies earned from IT
Source Korea and transferred from South Korea to the United States, Andy
Kim can seek the Court to have a credit against the judgment for any such
taxes paid. Andy Kim can seek that relief ex parte and the Court will
determine if sufficient proof of taxes has been offered and what, if any credit,
should apply to the judgment; and
“6. The monies paid by Kim to R Consulting under this Stipulation and
Order will be credited against the Judgment, taking into account accrued
interest on the Judgment at the time each monthly payment is made.”
As noted, the turnover order was amended on April 17, 2019, to add the
following language: “7. Failure to comply with this order may subject the
judgment debtor, Andy Kim, to arrest and punishment for contempt of court.”
(Emphasis in original omitted.)
9
In September 2018, R Consulting sought to enforce the turnover order
and an order requiring Kim to appear for his continued debtor’s exam.
R Consulting contended Kim had “deliberately and repeatedly” failed to
comply with the turnover order including paying R Consulting 25 percent of
his disposable earnings; providing copies of pay records from the Companies;
and providing an accounting of the amounts that were to be withheld from
his bi-weekly or monthly direct deposits or paychecks from the Companies.
The minute order from the September 12, 2018 hearing shows the court
ordered Kim to provide pay and accounting records from the Companies by a
date certain; to comply with “all orders regarding all payments to
R Consulting”; and to appear at his continued judgment debtor exam on
October 12, 2018.
R Consulting’s Motion for Attorney Fees
Following this court decision in R Consulting I, in April 2019
R Consulting filed a postjudgment motion seeking $387,464.50 in attorney
fees, including under sections 685.0405 and 685.070.6 This motion sought
fees from May 1, 2017 forward, as the trial court already had awarded
R Consulting attorney fees it incurred through April 2017 in connection with
the judgment and prove-up hearing that were the subject of R Consulting I.
In support of its motion, R Consulting lodged about 65 pages of its
attorney invoices with an accompanying one-page spreadsheet. The invoices
5 This statute provides in part: “Attorney’s fees incurred in enforcing a
judgment are included as costs collectible under this title if the underlying
judgment includes an award of attorney’s fees to the judgment creditor. . . .”
6 Subdivision (a)(6) of this statute provides in part: “The judgment
creditor may claim under this section the following costs of enforcing a
judgment: [¶] . . . [¶] (6) Attorney’s fees, if allowed by Section 685.040.”
10
show R Consulting’s counsel Michael Mason charged $295 an hour and Paul
Metsch $395 an hour.7 The invoices included without explanation
substantial redactions to myriad billing entries. Each entry included the
date, the work allegedly done in “block” format, the attorney who performed
the work and his billing rate, and the total time spent by each attorney to
complete a day’s work (but not each task performed on that particular date).
Kim in his opposition argued R Consulting was not entitled to attorney
fees for its counsel’s work on R Consulting I because the appeal allegedly was
not part of the enforcement of judgment process. Kim also argued
R Consulting was not entitled to recover fees for billing entries that were
either completely or substantially redacted, claiming it was impossible to
determine in those circumstances what work was done by R Consulting’s
counsel, particularly when counsel had block billed their time instead of
billing for each task performed on a specific date. Kim also made various
other objections to the billing entries, including on the grounds the time
spent by counsel was excessive, unnecessary, and unrelated to the
enforcement of the judgment. Kim lodged his objections in the margin of the
billing invoices he disputed, and explained in detail in his opposition papers
the basis for his objections.
R Consulting in its reply provided in brackets a brief, one or two
sentence response to some, but not all, of Kim’s objections to the billing
entries. In many instances R Consulting responded the redactions were
necessary to protect “Privileged information,” without identifying the
7 The invoices show these two attorneys charged the same hourly rate
throughout the postjudgment litigation. We note in opposing the attorney
fees award Kim did not challenge the hourly rates charged by R Consulting’s
counsel.
11
privilege relied on or explaining why the redacted information allegedly was
privileged.
In its reply papers, R Consulting’s entire response to Kim’s objection to
the redacted billing entries was limited to the following: “R Consulting’s
redactions relate either to privileged information, to which Judgment
Debtor[s] are absolutely not entitled (such as the subject of legal research), or
to matters either unrelated to the enforcement of the Judgment or the appeal
[in R Consulting I]. In the latter case dealing with unrelated matters,
R Consulting did not include its attorneys’ fees incurred in its fee total.
[Citations.] There is simply no legal or factual basis for Judgment Debtors’
objections to the redactions.”
Mr. Mason also submitted a short declaration in support of
R Consulting’s reply. He stated that certain of the billing entries in the
invoices had been completely redacted because R Consulting had not sought
compensation for that work; that the fees sought by R Consulting were not
excessive in light of Kim’s repeated failure to comply with the turnover order;
and that as of August 2019, Kim had only paid about $1,300 in satisfaction of
the judgment, and had failed to provide monthly pay records as required
under that order. Mr. Mason, however, did not explain why certain
redactions had been made to the billing invoices, including based on
privilege.
Kim’s Motion to Modify the Turnover Order
In April 2019, Kim moved ex parte to modify the turnover order. Kim
argued that because he was spending more time in South Korea, he was
receiving less income from Emajee and Outsourced Solutions; that although
the turnover order recited his annual salaries from both companies was
between $30,000 to $40,000, this figure was inflated and did not accurately
12
represent the income he was then earning from either company; and that he
therefore was unable to comply with the turnover order.
Kim also argued ex parte relief was necessary because South Korean
law prevented him from complying with some of the terms of the turnover
order; and that he was “in the process of identifying and retaining an expert
on Korean/American tax and money repatriation law, so that [he could]
legally account for his income from IT Source-Korea.” The record shows the
court recognized Kim sought “emergency relief” but nonetheless continued
the hearing on Kim’s modification request to August 23, 2019, ordering Kim
to comply with the turnover order pending the outcome of that hearing.
R Consulting in its opposition to Kim’s modification request argued
that Kim was “misrepresenting/hiding his income” in violation of the
turnover order, and that he also was violating several other orders issued by
the court. R Consulting also argued that Kim presented no new facts to
support his modification request; and that to modify the turnover order would
reward Kim for his “evasiveness,” “lack of candor,” and “attempt[s] to mislead
th[e] Court.”
Regarding its allegation that Kim was misrepresenting/hiding his
income, R Consulting noted Kim in September 2018 had “gambled $10,000 of
his own money” in Las Vegas, which money was “deposited and withdrawn
from his personal bank account . . . on September 17, 2018 (not in the name
of one of his approximately 13 ‘companies’ . . .)”; that Kim “even applied for
additional credit, in his own name, at the . . . [c]asino during his gambling
trip”; and that in February 2019, he deposited $8,750 into this same bank
account. R Consulting in support of its opposition lodged as exhibits copies of
Kim’s personal bank account statements and records from the casino—
including the credit agreement.
13
R Consulting further argued that Kim’s claim of having Korean “tax
issues” with respect to IT Source Korea was nothing new, as this issue had
previously been raised by him; that his delay in addressing this issue was
purposeful and tactical; and that his claim he also was concerned about
complying with United States tax laws was belied by his sworn deposition
testimony that he allegedly had not filed “personal taxes in California or with
the IRS since 2008.” (Emphasis in original omitted.)
In his reply to the opposition to modify the turnover order, Kim argued
that “(1) Korean law precludes repatriation of money for foreign residents
until their yearly tax obligation has been settled, which makes monthly
payments from [his] IT Source Korea salary illegal under Korean Law, and
(2) the Turn Over Order specifies a yearly ‘minimum’ based on Mr. Kim’s
testimony from two years ago as to his salaries. However, Mr. Kim’s
financial circumstances have changed since then and he respectfully requests
that the Turn Over Order reflect that change.” Kim’s reply included a letter
from his accountant addressing why it was “illegal” for him to make monthly
payments from his IT Source Korea earnings to R Consulting.
In support of his reply, Kim also filed the declaration of counsel Paul
Tauger who, under penalty of perjury, declared he was a salaried employee
and in-house counsel of Emajee; was paid bi-weekly by Emajee from an
Emajee bank account; and was neither paid by Kim nor was he Kim’s
personal attorney. Mr. Tauger further stated that he had brought an action
for malicious prosecution against R Consulting and its counsel because of
their “completely frivolous criminal contempt proceeding” against Kim; and
that Kim had complied with the court’s other orders, including providing
counsel of R Consulting with translated copies of Kim’s employment
agreements with Emajee, Outsourced Solutions, and Info Tech.
14
Kim in reply also submitted a declaration under penalty of perjury.
With respect to the $10,000 he gambled in Las Vegas, he stated this money
was “repayment for a personal loan” he had made “years ago”; adding, “It
came as a complete surprise to me when it was repaid, and I treated it as an
unexpected windfall.” He stated that his income then was derived primarily
from IT Source Korea; that in 2019 he earned “nothing from either
Outsourced Solutions or Emajee” except $8,300, which, he claimed, “was
subject to a court order issued by a court in another state”; that the other
state’s law prevented him from disseminating this particular order to
R Consulting or its counsel; but that he was willing to produce this order for
the court to review in camera.
Court’s Order
On August 23, 2019, the minute order noted the court heard oral
argument on R Consulting’s attorney fees motion and Kim’s request to modify
the turnover order. The minute order noted the court took the matter under
submission.
On August 28, the court issued its order that is the subject of this
appeal. In that order, the court without explanation denied Kim’s request to
modify the turnover order. In this same order, the court granted R
Consulting’s motion for attorney fees, awarding R Consulting all the fees it
had sought in its motion. The court order provided: “The Court finds the
underlying judgment includes an award of attorney’s fees to R Consulting,
entitling R Consulting to its post-Judgment attorneys’ fees under . . . sections
685.040 and 685.070(a)(6). The Court also finds that a remittitur issued on
15
4/25/19 [in R Consulting I] indicates that the respondent[8] is to pay the costs
of appeal. Based upon contract, those costs would include attorney fees. See
Starpoint Properties, LLC v. Namvar (2011) 201 Cal.App.4th 1101. The
Court orders additional attorney fees in the amount of $387,464.50.”
DISCUSSION
I
Notice of Appeal
As a threshold matter, R Consulting contends Kim’s appeal should be
dismissed because he allegedly failed in his timely September 30, 2019 notice
of appeal to identify with particularity the order or orders he was appealing.
R Consulting further contends Kim’s notice was insufficient because Kim
stated he was appealing from an order entered on August 30, 2019, when
there was no order entered on that date.
California Rules of Court, rule9 8.100(a)(2) provides in part: “The
notice of appeal must be liberally construed. The notice is sufficient if it
identifies the particular judgment or order being appealed.” “Rule
8.100(a)(2)’s liberal construction requirement reflects the long-standing ‘ “law
of this state that notices of appeal are to be liberally construed so as to
protect the right of appeal if it is reasonably clear what [the] appellant was
trying to appeal from, and where the respondent could not possibly have been
misled or prejudiced.” ’ (In re Joshua S. (2007) 41 Cal.4th 261, 272; see Luz
v. Lopes (1960) 55 Cal.2d 54, 59.) The rule is intended to ‘implement the
8 The court’s August 28 order misstates the disposition in R Consulting I,
as it provided: “The judgment is affirmed. Respondent is entitled to its costs
on appeal.” (R Consulting I, at p. 30.) Kim was the appellant and R
Consulting the respondent in R Consulting I.
9 All further references to rules are to the California Rules of Court.
16
strong public policy favoring the hearing of appeals on the merits.’ ” (K.J. v.
Los Angeles Unified School Dist. (2020) 8 Cal.5th 875, 882 (K.J.).)
Here, the record shows Kim checked the box on Judicial Council form
APP-002 stating he was appealing from “[a]n order after judgment under
Code of Civil Procedure, § 904.1(a)(2).”10 The record also shows Kim
attached to the notice of appeal the court’s August 28, 2019 order both
granting R Consulting’s motion for attorney fees and denying his
modification request.
Liberally construing Kim’s notice of appeal and incorporating by
reference the court’s August 28 minute order, we conclude his notice satisfies
rule 8.100(a)(2), as it identifies the particular order being appealed; there is
no “clear intention” he sought to appeal only one of the two separate orders in
the August 28 minute order (compare Baker v. Castaldi (2015) 235
Cal.App.4th 218, 225–226 [noting the “ ‘rule favoring appealability in cases of
ambiguity cannot apply where there is a clear intention to appeal from
only . . . one of two separate appealable judgments or orders’ ”]); and
R Consulting could “ ‘ “not possibly have been misled or prejudiced” ’ ” by
Kim’s notice. (See K.J., supra, 8 Cal.5th at p. 882.)
10 Section 904.1, subdivision (a) provides in relevant part: “An appeal,
other than in a limited civil case, is to the [C]ourt of [A]ppeal. An appeal,
other than in a limited civil case, may be taken from any of the following: [¶]
(1) From a judgment, except an interlocutory judgment, other than as
provided in paragraphs (8), (9), and (11), or a judgment of contempt that is
made final and conclusive by Section 1222. [¶] (2) From an order made after a
judgment made appealable by paragraph (1).”
17
II
Attorney Fees
A. Guiding Principles
“ ‘California follows what is commonly referred to as the American rule,
which provides that each party to a lawsuit must ordinarily pay his [or her]
own attorney fees.’ (Trope v. Katz (1995) 11 Cal.4th 274, 278; . . . § 1021
[‘[e]xcept as attorney’s fees are specifically provided by statute, the measure
and mode of compensation of attorneys . . . is left to the agreement, express or
implied, of the parties’].)” (Jones v. Goodman (2020) 57 Cal.App.5th 521, 532
(Jones).) As noted, section 685.040 provides for an award of attorney fees in
this case.11
“[T]he fee setting inquiry in California ordinarily begins with the
‘lodestar,’ i.e., the number of hours reasonably expended multiplied by the
reasonable hourly rate.” (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th
1084, 1095 (Drexler).) “The lodestar figure may then be adjusted, based on
11 As noted, the parties dispute whether R Consulting is also entitled to a
contractual award of attorney fees under Civil Code section 1717 in
connection with the R Consulting I appeal. Section 24 of the parties’ lease
agreement provides: “The parties acknowledge that this Lease and the
enforcement thereof will be governed by and construed and enforced in all
respects in accordance with the laws of the County of San Diego, State of
California, without reference to its conflicts of law rules. Loosing [sic] party
pays attorney’s fees.” (Italics added.) Civil Code section 1717 provides in
part: “(a) In any action on a contract, where the contract specifically provides
that attorney’s fees and costs, which are incurred to enforce that contract,
shall be awarded either to one of the parties or to the prevailing party, then
the party who is determined to be the party prevailing on the contract,
whether he or she is the party specified in the contract or not, shall be
entitled to reasonable attorney’s fees in addition to other costs.” In light of
our decision in this case, we deem it unnecessary to decide, and thus offer no
opinion on, this issue.
18
consideration of factors specific to the case, in order to fix the fee at the fair
market value for the legal services provided.” (Ibid.)
The party seeking fees and costs “ ‘ “bear[s] the burden of establishing
entitlement to an award and documenting the appropriate hours expended
and hourly rates.” ’ ” (Roth v. Plikaytis (2017) 15 Cal.App.5th 283, 290
(Roth).) “ ‘California courts do not require detailed time records, and trial
courts have discretion to award fees based on declarations of counsel
describing the work they have done and the court’s own view of the number of
hours reasonably spent. [Citations.]’ ” (Syers Properties III, Inc. v.
Rankin (2014) 226 Cal.App.4th 691, 698.) “In making its calculation, the
court may rely on its own knowledge and familiarity with the legal market,
as well as the experience, skill, and reputation of the attorney requesting
fees.” (569 East County Boulevard LLC v. Backcountry Against the Dump,
Inc. (2016) 6 Cal.App.5th 426, 437.)
Once the moving party meets its burden, the burden shifts to the
opposing party “to present specific objections, supported by rebuttal
evidence.” (Roos v. Honeywell Internat., Inc. (2015) 241 Cal.App.4th 1472,
1494, disapproved on another ground as stated in Hernandez v. Restoration
Hardware, Inc. (2018) 4 Cal.5th 260, 287; see Gorman v. Tassajara
Development Corp. (2009) 178 Cal.App.4th 44, 101 [noting the “party
opposing the fee award can be expected to identify the particular charges it
considers objectionable”].)
“ ‘Generally, a trial court’s . . . award of fees and costs . . . is reviewed
for abuse of discretion.’ (Goodman v. Lozano (2010) 47 Cal.4th 1327,
1332; see Castro v. Superior Court (2004) 116 Cal.App.4th 1010, 1017 [‘the
propriety or amount of an attorney fees award is reviewed using the abuse of
discretion standard’].) However, the standard may change depending on the
19
particular issue under review. ‘ “We independently review any legal issue
regarding the appropriate criteria for a fee award. But once those criteria are
identified, we defer to the trial court's discretion in determining how they are
to be exercised. [Citation.] In fashioning an equitable remedy, the trial court
is in the best position to determine whether the criteria for a fee award have
been met. We will not disturb its judgment on this issue unless we are
convinced the court abused its discretion. [Citation.] A trial court abuses its
discretion only where its action is clearly wrong and without reasonable
basis.” ’ (Powell v. Tagami (2018) 26 Cal.App.5th 219, 236–237 (Powell).) To
the extent a trial court’s ruling is based on factual determinations, we review
the record for substantial evidence. (Carpenter & Zuckerman, LLP v.
Cohen (2011) 195 Cal.App.4th 373, 378. . . .) ‘ “We look at the evidence in
support of the trial court’s finding, resolve all conflicts in favor of the
respondent and indulge in all legitimate and reasonable inferences to uphold
the finding.” ’ (Ibid.)” (Jones, supra, 57 Cal.App.5th at pp. 532–533.)
B. Analysis
As the party seeking an attorney fees award, R Consulting had the
burden of documenting the lodestar, that is the number of hours counsel
reasonably expended multiplied by counsel’s reasonable hourly rate.12 (See
Drexler, supra, 22 Cal.4th at p. 1095.) Although detailed time records are not
required, here the attorney invoices R Consulting lodged in support of its
motion were redacted to such an extent that we agree with Kim that it is
nearly impossible in several of the billing entries to determine what work
counsel performed. (See Roth, supra, 15 Cal.App.5th at p. 290 [the party
seeking attorney fees bears the burden to document the work done and fees
12 As noted ante, Kim has not challenged the hourly rates billed by
counsel of R Consulting.
20
charged].) In addition, R Consulting neither explained in any detail why so
many redactions were made to the billing entries, including on the basis of
privilege, nor did it submit unredacted invoices for the court’s in camera
review. (See ibid.)
As noted ante, the attorney invoices are for counsel’s work between
May 1, 2017 and January 31, 2019. By way of example only (with the ellipsis
representing the redacted information), the billing entry for May 10, 2017,
provides: “Research regarding . . . review . . . ; phone calls from and to . . .
regarding . . . research regarding . . . prepare subpoena . . . several emails
from and to . . .” For this entry, Mr. Mason billed 5:30 hours (at $295 an
hour, as noted) for a total fee of $1,622.50. The record shows Kim objected to
this entry on the basis of “Block Billing” and “Redaction,” arguing it was not
possible to determine the work done by counsel and whether that work was
necessary to enforce the judgment as required for an award under section
685.040.
In its reply, R Consulting responded the redactions to the May 10 entry
involved “Privileged information.” As noted, R Consulting did not explain
either in its moving or reply papers what privilege it was invoking or why
this information allegedly was privileged.
As a further example, on May 11, 2017, Mr. Mason billed 5.24 hours for
a total fee of $1,593. The billing entry for this date describes his work as
follows: “Numerous emails from client regarding . . . revisions to
subpoena . . . finalize subpoena to . . . numerous emails from and to . . .
regarding . . .; research regarding . . .; begin preparation of subpoena to . . .;
several telephone calls from and to . . . .” Kim again objected to this entry on
the grounds of “Block Billing” and “Redaction.” R Consulting in its reply
21
merely repeated the same response it gave for the May 10 entry: “Privileged
information.”
The billing entries for May 12 and 15, 2017, are not unlike the heavily
redacted May 10 and 11 entries. Kim’s similarly objected to these entries and
R Consulting’s “response” was the same.13
Compounding the problem of whether R Consulting was entitled to fees
based on the heavily redacted billing entries was counsel’s practice of block
billing. Block billing is not per se invalid. (See Jaramillo v. County of
Orange (2011) 200 Cal.App.4th 811, 830.) However, a trial court retains wide
discretion to penalize block billing when it prevents the court from discerning
which tasks are compensable and which are not. (Ibid.) Here, because of the
substantial redactions made in entries that were block billed by date, it is not
possible in many of the entries to discern what work was done by counsel; to
separate out the work that was satisfactorily described from the work that,
because of the redactions, was not; and to compensate R Consulting under
section 685.040 accordingly.
Moreover, we are unable to discern from the record why the redacted
information was allegedly privileged. It would appear many of the redactions
cannot be explained under the attorney-client privilege, as this privilege only
protects disclosure of communications between an attorney and his or her
13 By way of further example, R Consulting also made substantial
redactions to the following May 2017 entries: 17, 18, 19, 22, 23, 25, 30, and
31. The following entries for dates in June 2017 were also heavily redacted
by R Consulting: 1, 2, 5, 6, 7, 8, 9, 12, 13, 14, 15, 16, 19, 20, 26, 27, 28, and
29. A prime example of the redactions from June 2017 is found in the
following entry for June 8: “Lengthy phone conversation with . . .;
research . . .; research . . . phone conversations . . . .” On this date, Mr. Mason
billed 5.54 hours generating $1,740.50 in fees. We note billing entries for
many months other than May and June 2017 were similarly redacted,
including based on R Consulting’s claim of privilege.
22
client, not the disclosure of the “underlying facts upon which the
communications are based.” (Benge v. Superior Court (1982) 131 Cal.App.3d
336, 349.) In addition, this privilege “does not extend to independent
witnesses” or their discovery. (Triple A Machine Shop, Inc. v. State of
California (1989) 213 Cal.App.3d 131, 143 (Triple A Machine).)
To the extent the redactions were based on the attorney work-product
doctrine, R Consulting was required to make a “preliminary or foundational
showing” that the unredacted billing entries would reveal its attorney’s
“tactics, impressions, or evaluation of the case, or would result in opposing
counsel taking undue advantage of the attorney’s industry or efforts.” (See
Coito v. Superior Court (2012) 54 Cal.4th 480, 502 (Coito).) “Upon such a
showing, the trial court should then determine, by making an in camera
inspection if necessary, whether absolute or qualified work product protection
applies to the material in dispute.” (Ibid.)
Here, R Consulting did not make a “preliminary or foundational
showing” that, absent the substantial redactions, the billing entries would
reveal counsel’s “tactics, impressions, or evaluation of the case” (see Coito,
supra, 54 Cal.4th at p. 502), or would result in Kim’s counsel “free riding” on
the work of its counsel. (See ibid.) Nor does the record show that
R Consulting made available unredacted invoices for the trial court to review
in camera to determine what work was actually done and whether the
redacted information was in fact confidential. (See ibid.)
In addition, from our review of the invoices it appears certain
redactions on the basis of privilege were unfounded. By way of example only,
the June 5, 2017 billing entry provided: “Correspondence from and to
opposing counsel regarding . . .; phone calls and correspondence with . . .;
continue with preparation of . . . . (Italics added.) For this entry, Mr. Mason
23
billed 3:48 hours, generating a fee of $1,121. However, “correspondence from
and to opposing counsel” on a particular subject matter does not appear to
involve confidential information requiring redaction.14 (See Coito, supra, 54
Cal.4th at p. 502.)
We recognize the tension between protecting privileged information
and preventing the dissemination of such information. However, that tension
does not override a court’s duty to review—including in camera—attorney
billing records to ensure there is a reasonable basis for a fee award. (See
Powell, supra, 26 Cal.App.5th at pp. 236–237.)
We note there also were myriad invoices objected to by Kim on the
basis of block billing and excessive redactions to which R Consulting provided
no explanation whatsoever. By way of example only, for May 2017 these
included billing invoices for the following dates: 1, 2, 3, 4, 5, 8, 16, and 18.
Again, because of block billing, it is not possible on review to determine how
much time was spent on certain tasks that were unredacted, and may have
been compensable, from tasks that were redacted, and may not have been
compensable.
14 By way of further example, R Consulting in several billing entries
redacted the names of third-party witnesses it was subpoenaing. It is not
clear why the names of such individuals would be confidential, particularly if
the subpoena issued. (See Triple A Machine, supra, 213 Cal.App.3d at p. 143
[attorney-client privilege does not extend to third-party witnesses]; Coito,
supra, 54 Cal.4th at p. 502 [work-product doctrine only applies to information
that reveals an attorney’s “tactics, impressions, or evaluation of the case”].)
24
Finally, we note there were some billing entries that were completely
redacted but the amount billed on a particular day ostensibly was included in
the fee award.15 These included invoices from October 5, 2017 (1.30 hours
billed by Mr. Mason for a total fee of $442.50); April 25, 2018 (.30 hours billed
by Mr. Mason for a total of $88.50); and December 11, 2018 (3.30 hours billed
by Mr. Mason for a total of $1,032.50). In each of these three invoices,
R Consulting failed to explain the reason or reasons for its complete redaction
of the billing entries, but was nonetheless compensated for this time in the
fee award.
Based on the foregoing, we conclude R Consulting failed to satisfy its
burden to show it was entitled to fees for the block billed entries that were so
heavily or completely redacted it was not possible to determine the work done
by counsel and thus, whether such work was compensable under section
685.040.
In light of our decision, we deem it unnecessary to address, and offer no
opinion on, Kim’s other objections to the fee award, including, as we have
noted, to R Consulting’s entitlement to fees from the appeal in R Consulting
I.16 In sum, the attorney fees award in favor of R Consulting is reversed and
the matter remanded for the trial court to reconsider that award in light of
this opinion.
15 We note there were several entries that were also completely redacted
in which R Consulting claimed it did not seek reimbursement for its counsel’s
work. Our discussion does not include these particular entries, which were
identified by the total fee for a particular date also being redacted.
16 See footnote 11, ante.
25
III
Turnover Order
As noted, Kim contends for the first time on appeal that the turnover
order is invalid because it allegedly circumvented the exclusive statutory
mechanism for garnishment of an employee’s wages under state law. We
deem this issue forfeited.
A. Forfeiture17
It is axiomatic that a court of review ordinarily will not consider claims
made for the first time on appeal that could have been made in the trial
court, deeming such claims forfeited. (See Nellie Gail Ranch Owners Assn. v.
McMullin (2016) 4 Cal.App.5th 982, 997 (Nellie Gail) [noting as a “ ‘general
rule, theories not raised in the trial court cannot be asserted for the first time
on appeal’ ”]; JRS Products, Inc. v. Matsushita Elec. Corp. of America (2004)
115 Cal.App.4th 168, 178 (JRS Products) [recognizing that courts of review
“are loath to reverse a judgment [or order] on grounds that the opposing
party did not have an opportunity to argue and the trial court did not have an
opportunity to consider”].) Although there are exceptions to this general rule,
it prevails when the new claim involves a mixed question of law and fact
(Panopulos v. Maderis (1956) 47 Cal.2d 337, 341 (Panopulos)), such as when a
claim involves both statutory interpretation and applying the facts to the
statute as construed.
Kim contends the wage garnishment law is the exclusive means by
which a judgment creditor may levy a judgment debtor’s wages, and this law
17 On this court’s own February 11, 2021 motion, we sought, received and
have considered supplemental briefing from the parties regarding whether
Kim forfeited his claim that the turnover order contravened the wage
garnishment law, based on his (1) failure to raise that claim in the trial court;
(2) his consent to the terms of the turnover order; and/or (3) his conduct in
attempting to abide by it.
26
was not followed by the court when it issued the turnover order, in
deprivation of his due process rights. To support this contention, Kim on
appeal relies on various sections of this law. Importantly, Kim’s contention
requires us to accept that he was in an employer/employee relationship with
Emajee, Outsourced Solutions, and/or IT Source Korea. (See § 706.011, subd.
(b) [providing the wage garnishment law applies to “earnings,” meaning
“compensation payable by an employer to an employee for personal services
performed by such employee, whether denominated as wages, salary,
commission, or otherwise” (italics added)].)
But as summarized ante, R Consulting proffered evidence showing the
Companies were a sham, raising a predominately factual question regarding
the nature of the relationship, or lack thereof, between the Companies and
Kim, including whether he controlled the Companies and/or was an
“employee” of any of the Companies as defined under the wage garnishment
law. (See § 706.011, subd. (e) [defining an “employee” to mean “a public
officer and any individual who performs services subject to the right of the
employer to control both what shall be done and how it shall be done”].)
Indeed, the court specifically found when it issued the turnover order that the
“typical garnishment procedure compelling ‘employers’ to deliver to the
levying officer the required amounts under a garnishment order is not
workable in this case given the evidence presented regarding the companies.”
We conclude Kim’s contention the turnover order allegedly violates the
wage garnishment law involves a mixed question of law and fact, with the
factual issues predominating. (See Panopulos, supra, 47 Cal.2d at p. 341.)
As such, we further conclude Kim has forfeited this claim of error on appeal,
as this claim should have been raised in the trial court, and not for the first
time on appeal. (See Nellie Gail, supra, 4 Cal.App.5th at p. 997 [“ ‘theories
27
not raised in the trial court cannot be asserted for the first time on appeal’ ”];
JRS Products, supra, 115 Cal.App.4th at p. 178 [courts of review are
reluctant to reverse an order or judgment on grounds not briefed by the
parties in, or considered by, the trial court].)
B. Consent/Estoppel/Waiver
As is clear from the record, Kim did not oppose R Consulting’s motion
for the turnover of copies of his pay checks and pay stubs on an ongoing basis
and for the assignment of 25 percent of his “disposable wages” from the
Companies. To the contrary, as summarized ante Kim filed a notice of non-
opposition to that motion and the parties, as stated in the turnover order
itself, represented to the court at the October 20, 2017 hearing that they had
reached an agreement to its terms.
Kim also was clear in opposing R Consulting’s January 11, 2018 ex
parte request for a turnover order, after there was some disagreement
between the parties over the terms of the stipulation, that he “volunteered to
provide those amounts of his income which R Consulting would otherwise
have had to obtain through the garnishment process.” He added, “though
garnishment would not have reached his salary paid in Korea by a Korean
company [i.e., IT Source Korea], he voluntarily agreed to provide the
equivalent amount of garnishment.”
Moreover, although the parties disagree on whether Kim has fully
complied with the terms of the turnover order, the record clearly shows that
after its issuance he acted as if he was bound by that order. Indeed, it is
undisputed that he paid some money toward the judgment and provided
some pay records, and, when he believed he could no longer comply with the
turnover order, including paying R Consulting 25 percent of his “disposable
earnings,” he sought “emergency relief” from that order more than a year
28
after it had issued. The record thus shows that Kim voluntarily agreed to the
terms of the turnover order and, up until this appeal, at all times acted as if
it was valid and binding on him.
Therefore, we separately conclude under the unique circumstances of
this case that Kim is barred or estopped from disputing, or has “waived” the
right to dispute,18 the validity of the turnover order both by (1) his initial
consent to be bound to its terms and (2) his conduct once the order issued.
(See Metalclad Corp. v. Ventana Environmental Organizational
Partnership (2003) 109 Cal.App.4th 1705, 1713 (Metalclad) [recognizing the
rule that an “ ‘estoppel precludes a party from asserting rights “he otherwise
would have had against another” when his own conduct renders assertion of
those rights contrary to equity’ ”].)
For these same reasons, we reject Kim’s contentions that the court
allegedly violated his due process rights when it issued the turnover order
(see D.H. Overmyer Co. v. Frick Co. (1972) 405 U.S. 174, 185–186
[recognizing that constitutional rights may generally be waived, provided the
waiver is knowing, voluntary, and intelligent]); that R Consulting was
required to either “domesticate the American judgment in Korea or serve the
actual Korean entity [i.e., IT Source Korea] to allow the Korean tax process to
occur pre-garnishment”; and that the court in the instant case allegedly had
“allowed a California judgment creditor to ensnare Korean-earned money
before Korea can even get its proper, lawful share of its tax on the Korean
wages.” As noted ante, Kim voluntarily agreed to be bound by the turnover
18 R Consulting in its respondent’s brief argued Kim “waived” his right to
contest the validity of the turnover by stipulating to its terms, citing Waller v.
Truck Ins. Exchange, Inc. (1995) 11 Cal.4th 1, 31 [noting a “waiver may be
either express, based on the words of the waiving party, or implied, based on
conduct indicating an intent to relinquish the right”].
29
order and to include within its terms the amount equivalent to earnings from
IT Source Korea if a garnishment order had issued. (See Metalclad, supra,
109 Cal.App.4th at p. 1713.)
C. Denial of Request to Modify the Turnover Order
Finally, we conclude the trial court did not abuse its discretion in
denying Kim’s request to modify the turnover order. In reviewing the August
28 order, we presume it is correct, indulge all intendments and presumptions
to support it on matters as to which the record is silent, and require Kim to
affirmatively show error. (Jameson v. Desta (2018) 5 Cal.5th 594, 608–609
(Jameson); Denham v. Superior Court (1970) 2 Cal.3d 557, 564.)
Kim contends the court abused its discretion in denying his request to
modify the turnover order because there allegedly was undisputed evidence
his earnings from Emajee and Outsourced Solutions had dramatically
decreased since its issuance. We note, however, that the court was not
required to accept as true Kim’s statements in his declaration that his
earnings from these two companies were negligible. (See Lohman v. Lohman
(1946) 29 Cal.2d 144, 149 (Lohman) [noting the court “is not required to
accept as true the sworn testimony of a witness, even in the absence of
evidence directly contradicting it, and this rule applies to an affidavit”], cited
with approval in R Consulting I, at p. 11.)
Here, the trial judge who issued the turnover order in January 2018
was also the judge who denied Kim’s request to modify that order about 18
months later. In connection with the turnover order, the judge was aware
that Info Tech and Kim were subject to a substantial judgment; that the
judgment had resulted from a terminating sanction based on the court’s
finding that Info Tech and Kim had intentionally destroyed potential
evidence in contravention of R Consulting’s right to discovery and the trial
30
court’s previous orders; that Kim had been accused of “deliberately and
repeatedly” failing to comply with the turnover order, including paying
R Consulting 25 percent of his disposable earnings and providing copies of
pay records from the Companies; that the court at the September 12, 2018
hearing ordered Kim to comply with the turnover order and appear at his
continued debtor’s exam; that R Consulting proffered evidence showing Kim
in September 2018 withdrew $10,000 from his personal bank account, which
account R Consulting claimed he did not disclose during his debtor’s exam,
and spent that money gambling in Las Vegas; that Kim claimed the $10,000
was repayment of a personal debt and he treated the receipt of the money as
a “windfall”; that Kim during this same trip to Las Vegas applied for and
received additional credit from a casino; and that Kim in February 2019
deposited more than $8,000 into the same bank account he did not identify at
the debtor’s exam, but claimed that money was subject to an order in another
state, which order he could not provide to R Consulting or its counsel.
But that’s not all. As summarized ante, Kim claimed he was the vice-
president of Emajee, but did not know the name of the company president.
Kim also claimed he did not know who paid the $14,000 monthly rental
where he sometimes resided with his mother, even though R Consulting
produced records showing Kim had signed a check in that amount; and that
Kim also claimed he did not know the name of the other officer of IT Source
Korea, whom Kim occasionally visited when in South Korea.
The record also shows R Consulting expended substantial effort to
enforce the judgment. This included attempting to locate Kim’s assets,
including assets that may have been held by third parties.
Although the trial judge did not explain the reason(s) for his denial of
Kim’s request to modify, given the presumption of correctness—including as
31
a result of the unreported August 23 hearing on that request (see Jameson,
supra, 5 Cal.5th at pp. 608–609)—and the circumstances and evidence in this
case, it is clear the court weighed the credibility of the parties and found Kim
less than credible. (See Lohman, supra, 29 Cal.2d at p. 149.)
As we explained in R Consulting I, “ ‘As an appellate court, we do not
review the evidence for its “believability,” [and q]uestions of credibility are for
the trial court.’ [Citation.] ‘When two or more inferences can reasonably be
deduced from the facts, we do not substitute our deductions for those of the
finder of fact. [Citation.] We must affirm if substantial evidence supports
the trier of fact’s determination, even if other substantial evidence would
have supported a different result.’ [Citation.] This rule applies if the trial
court makes a credibility determination based on declarations as well as oral
testimony. (See United Health Centers of San Joaquin Valley, Inc. v.
Superior Court (2014) 229 Cal.App.4th 63, 74; Fininen v. Barlow (2006) 142
Cal.App.4th 185, 189–190.)” (R Consulting I, at p. 11, italics added.)
We reach the same conclusion for the same reasons with respect to
Kim’s claim the court erred by refusing to modify the turnover order because
South Korean law allegedly prevented his compliance with that order.
Indeed, as R Consulting noted in opposing Kim’s modification request, Kim
initially raised the South Korea “tax” issue at or near the time when the
turnover order first issued, and thus, it was neither new nor ostensibly
viewed by the trial court as being credible.
32
DISPOSITION
The portion of the August 28, 2019 order granting R Consulting
attorney fees of $387,464.50 is reversed and the matter remanded for the
trial court to reconsider that award in light of this opinion. The remaining
portion of the August 28 order denying Kim’s request to modify the turnover
order is affirmed. In the interests of justice, the parties are to bear their own
costs on appeal. (Rule 8.278(a)(5).)
BENKE, J.
WE CONCUR:
McCONNELL, P. J.
GUERRERO, J.
33