Nossaman v. Norgaard CA2/7 ( 2021 )

Filed 4/19/21 Nossaman v. Norgaard CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
NOSSAMAN LLP, B291410
Plaintiff and Respondent, (Los Angeles County
Super. Ct. Nos. BC534889,
v. BC635527)
CHRISTOPHER NORGAARD,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Gregory Keosian, Judge. Affirmed.
Christopher Norgaard, in pro. per., for Defendant and
Appellant.
Herzlich & Blum, Allan Herzlich and Jerome J. Blum for
Plaintiff and Respondent.
___________________________
INTRODUCTION
Christopher Norgaard appeals from a judgment following a
court trial awarding Nossaman LLP $155,524.55. Those funds
took a winding and circuitous path to the judgment. Nossaman
originally represented Adrian Herling Waworuntu in a fraud
action arising from Waworuntu’s investment in a real estate
project. Norgaard substituted in for Nossaman as counsel for
Waworuntu during the litigation. Nossaman sued Waworuntu
for unpaid legal fees, obtained a default judgment against him,
and filed a lien in a pending action against Waworuntu’s interest
in, and any eventual recovery from, the fraud action.
Several years later Waworuntu obtained a $12 million
judgment in the fraud action, but the defendants in that case
were judgment proof. Two of the defendants, however, received a
settlement payment as a result of a co-defendant’s bankruptcy
proceeding in which Waworuntu was an approved creditor.
Norgaard eventually received part of that settlement on
Waworuntu’s behalf and deposited the funds first into his client
trust account and then into to his general account. After
Nossaman learned of the settlement and payment, Nossaman
filed a notice of levy under writ of execution naming Norgaard as
a third person in possession of funds subject to Nossaman’s
judgment against Waworuntu. When Norgaard claimed he did
not possess any funds subject to the levy, Nossaman filed this
action against him. The $155,524.55 judgment Nossaman
obtained is the result of that (and a related) lawsuit.
Norgaard argues the trial court erred in ruling in favor of
Nossaman because the original lien in a pending action was not
effective, the execution lien against Norgaard did not relate back
2
to the lien in a pending action, Norgaard did not possess or ever
receive funds described by the notice of levy, and even if
Norgaard possessed funds described by the notice of levy, they
were paid to him pursuant to an order issued in the fraud action.
Because none of Norgaard’s arguments has merit, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Nossaman Files a Lien Against Waworuntu’s Interest
in a Fraud Action Against the Developers of a Queen
Mary Project
In 2003 Nossaman, Guthner, Knox & Elliott, LLP (now
Nossaman) represented Waworuntu in a fraud action against Lee
H. Durst, Queen’s Seaport Development, Inc. (QSDI), Bandero
LLC, Cheng Cheng USA, LLC, and others arising from
Waworuntu’s $12 million investment in a commercial project to
develop the Queen Mary ship and the surrounding area. (See
Waworuntu v. Durst (Super. Ct. L.A. County, 2005,
No. BC303692) (the Durst action).) Waworuntu alleged the
defendants fraudulently represented that his investment would
enable Bandero and Cheng Cheng to buy the development rights
to the property and that the City of Long Beach had already
approved the development.
In May 2005 Norgaard substituted in for Nossaman as
counsel for Waworuntu in the Durst action. Nossaman sued
Waworuntu for unpaid legal fees Waworuntu owed Nossaman for
representing him in the Durst action. (Nossaman v. Waworuntu
(Super. Ct. L.A. County, 2005, No. BC337925) (the Waworuntu
action).) On November 28, 2005 the court in the Waworuntu
3
action entered a $611,548 default judgment in favor of Nossaman
and against Waworuntu.
On March 29, 2006 Nossaman filed in the Durst action a
notice of lien in a pending action. (See Code Civ. Proc.,
§ 708.410.)1 Nossaman served the notice of lien on Waworuntu
(who was incarcerated at the time at the Cipinang Prison in
Indonesia), Norgaard (who was counsel of record for Waworuntu),
and all the parties to the Durst action. In April 2006 Waworuntu
moved to set aside the default judgment Nossaman had obtained
against him, arguing Nossaman failed to properly serve him. The
trial court denied Waworuntu’s motion, as well as a subsequent
request for reconsideration. Waworuntu did not appeal either
ruling.
B. Waworuntu Obtains a $12 Million Judgment in the
Durst Action and Receives Funds from Certain Durst
Defendants
On September 6, 2011 the trial court in the Durst action
entered judgment for Waworuntu in the amount of $12 million
and created a constructive trust in favor of Waworuntu. The
court’s statement of decision in Durst declared: “Insofar as the
court has found that Bandero, [Cheng Cheng], Durst, and
[another defendant] acquired Waworuntu’s $12 million by fraud,
Waworuntu is entitled to a constructive trust over that payment,
including any assets purchased with the proceeds of those funds.”
On February 11, 2013 our colleagues in Division Eight affirmed
the judgment in the Durst action. (Waworuntu v. Durst (Feb. 11,
2013, B236904) [nonpub. opn.].)
1 Statutory references are to the Code of Civil Procedure.
4
Meanwhile, QSDI filed for bankruptcy and its trustee
asserted various claims in federal (district and bankruptcy) court
against Bandero and Cheng Cheng, QSDI’s co-defendants in the
Durst action. Bandero filed a proof of claim against QSDI in the
bankruptcy proceeding, and Bandero and Cheng Cheng filed
counter- and cross-claims against QSDI in the federal court
actions. The directors and officers of QSDI sought insurance
coverage for those claims from National Union Fire Insurance
Company, which agreed to settle the insureds’ disputes with
Bandero and Cheng Cheng. As a result of that settlement,
National Union agreed to pay $550,000 to Bandero and Cheng
Cheng.
On August 26, 2008 Waworuntu filed in the Durst action an
application for a writ of attachment to the $550,000 payment
National Union had agreed to pay to Bandero and Cheng Cheng.
On November 12, 2008 the trial court in the Durst action entered
a joint stipulation for temporary protective order providing that
National Union would pay the settlement funds due Bandero and
Cheng Cheng into the Lee Durst Trust Account and that the
account would not disburse any funds “[without] further court
order [illegible] to the attorney liens.”2
Counsel for Bandero in the Durst action, Allen Matkins
Leck Gamble Mallory & Natsis LLP, and an expert consultant
2 Norgaard contends, and Nossaman does not dispute, that
the joint stipulation, which was handwritten but appears to be
signed by the judicial officer presiding in the Durst action, stated:
“[F]unds deposited in the Lee Durst Trust Account will not be
disbursed [without] further Court Order as regards to the
attorneys liens.” The reference to “attorneys liens” presumably
refers to prior liens established by three law firms that
represented Bandero and Cheng Cheng in various actions.
5
retained by Bandero, MBI Liquidation, Inc., also filed liens
against the funds paid to Bandero as a result of the settlement in
the QSDI bankruptcy. On February 20, 2009 the bankruptcy
court issued an order effectively resolving the dispute over the
$550,000.3 Under that order, National Union paid approximately
$154,000 of the settlement funds into an interest-bearing joint
account established by Bandero, Allen Matkins, MBI Liquidation,
and Waworuntu, pending resolution of the liens and disputes
regarding those funds.4 The order prohibited the release,
transfer, or withdrawal of funds from the joint account “except
pursuant to the joint written instructions . . . or pursuant to an
order of a court with jurisdiction over the disputes between the
Bandero Parties, on the one hand, and Allen Matkins, MBI and
Waworuntu, on the other hand.” National Union paid the
remainder of the settlement funds into a trust account
established by Durst pending the resolution of liens and
attachments asserted by Waworuntu and others. The order also
prohibited the release of those funds “except pursuant to the joint
written instructions of [certain parties, including Bandero and
Cheng Cheng] and Waworuntu or pursuant to an order of a court
with jurisdiction over the disputes between such parties.”
In May 2013 Waworuntu filed a complaint against MBI
Liquidation and Allen Matkins, alleging causes of action for
declaratory relief, conversion, and “enforcement of constructive
trust, judgment and judgment lien” (the MBI action).
3 This is where the $155,524.55 at issue in this appeal comes
from.
4 Waworuntu was an allowed claimant in QSDI’s bankruptcy
proceeding.
6
Waworuntu alleged MBI Liquidation and Allen Matkins refused
to agree to disburse to him the $154,000 in settlement funds paid
into the joint account. Waworuntu alleged the judgment in the
Durst action made him “entitled to immediate and unconditional
receipt of all funds held in the Joint Account.” Waworuntu also
alleged that about $2.5 million of his $12 million investment in
the Queen Mary project was placed “directly into a trust account
for the direct benefit of, use by and transfer to Allen Matkins, for
fees and expenses to be incurred by Allen Matkins on behalf of
Bandero, [Cheng Cheng], Lee Durst and [another co-defendant]
in defense of [the Durst action]” and more generally that some of
his investment funds were diverted to pay Allen Matkins’ fees
and expenses “incurred on behalf of Bandero and [Cheng Cheng]
in the [QSDI] bankruptcy case.” Waworuntu alleged that, as a
result, the $154,000 in joint account funds were “‘assets
purchased with the proceeds of [Waworuntu’s] funds,’ in the
words of [the Durst court’s] Statement of Decision” and that he
was entitled to judgment against Allen Matkins and MBI
Liquidation for the full amount of the joint account.
On July 8, 2013 the parties to the MBI action entered into
a stipulation under which the full amount of the joint account
would be disbursed to Waworuntu (“or to his counsel’s trust
account”), and MBI Liquidation and Allen Matkins waived and
released any claims they had over those funds. The record in this
appeal does not reveal the details of how the parties resolved the
MBI action, but Norgaard ultimately received and deposited into
his client trust account on July 12, 2013 a payment of
$155,524.55. Norgaard transferred the funds into his general
account three days later.
7
C. Nossaman Files a Notice of Levy Against Norgaard,
Renews the Judgment in the Waworuntu Action, and
Files the Complaint in this Action
On October 7, 2013 Nossaman served a document titled
Notice of Levy under Writ of Execution (Money Judgment) on
Norgaard in connection with the Waworuntu action. The notice
identified Waworuntu as the judgment debtor and described the
property levied on as: “Any and all monies due [Waworuntu]
from [Norgaard], and any and all personal property (including,
but not limited to, funds received in connection with [the QSDI
bankruptcy] and/or [the MBI action]) of [Waworuntu] and/or held
on [Waworuntu’s] behalf (regardless of how such funds are held,
including but not limited to, in a client trust account) by
[Norgaard].” The notice identified Norgaard as a “Third Person
in Possession of Funds.” Nossaman personally served the Notice
of Levy under Writ of Execution on Norgaard on October 7, 2013
and served the notice on Waworuntu by mail.
On November 22, 2013 Nossaman obtained in the Durst
action a writ of execution to enforce its judgment against
Waworuntu. (See § 699.510, subd. (a).) The court in the Durst
action modified the original judgment effective December 5, 2013
to reflect the “execution lien in favor of Nossaman . . . against
[Waworuntu’s] interest in the instant Judgment.”
In 2014 Nossaman moved to renew its judgment against
Waworuntu in the Waworuntu action and served the motion on
Waworuntu in prison and on Norgaard as counsel for
Waworuntu. The trial court granted Nossaman’s motion and
denied Waworuntu’s motion to vacate the renewal of the
judgment, and our colleagues in Division Eight again affirmed
8
the judgment. (Nossaman, Guthner, Knox & Elliott v.
Waworuntu (Sept. 29, 2016, B265486) [nonpub. opn.].)
On January 30, 2014 Nossaman filed an action against
Norgaard for declaratory and injunctive relief. On September 27,
2016 Nossaman filed another action, which the trial court related
to the prior action, for failure to honor the notice of levy, alleging
Norgaard, “while representing Waworuntu, received certain
Settlement Funds (in a sum believed to be $153,890.84) in
connection with Waworuntu’s Judgment [in the Durst action].”
Nossaman further alleged Norgaard failed to honor the
October 7, 2013 levy and instead attempted to apply the funds
received by Norgaard on behalf of Waworuntu to Norgaard’s legal
fees. Nossaman sought $153,890.84 in damages, interest from
October 7, 2013, attorneys’ fees, and costs.
D. The Trial Court Enters Judgment for Nossaman, and
Norgaard Appeals
Following a court trial, the trial court entered judgment for
Nossaman. In its statement of decision the court found that the
notice of levy served on Norgaard on October 7, 2013 related back
to the lien Nossaman filed and served on Waworuntu on
March 29, 2006, that the settlement funds received by Norgaard
belonged to Waworuntu and were subject to Nossaman’s lien,
that Norgaard had no valid lien on the settlement funds, and that
therefore Nossaman was entitled to judgment. After the court
denied Norgaard’s motion to vacate the judgment and entered an
amended judgment, Norgaard timely appealed. On December 10,
2019 the trial court filed a settled statement in lieu of a reporter’s
transcript. (See Cal. Rules of Court, rule 8.137(a).)
9
DISCUSSION
Norgaard contends the trial court erred in entering
judgment for Nossaman because the March 29, 2006 lien was not
effective for a variety of reasons, the execution lien created by the
October 7, 2013 notice did not relate back to the March 29, 2006
lien, Norgaard did not possess or ever receive any funds described
by the October 7, 2013 notice of levy, and even if Norgaard
possessed funds described by the October 7, 2013 notice of levy,
he received those funds pursuant to the terms of Nossaman’s lien
and an order issued in the Durst action.
A. Standard of Review
In reviewing a judgment based on a statement of decision
following a court trial, we review questions of law de novo,
including the application of a statute to a set of undisputed facts.
(Ribakoff v. City of Long Beach (2018) 27 Cal.App.5th 150, 162;
Grayson Services, Inc. v. Wells Fargo Bank (2011)
199 Cal.App.4th 563, 570.) “We apply a substantial evidence
standard of review to the trial court’s findings of fact. [Citation.]
Under this deferential standard of review, findings of fact are
liberally construed to support the judgment and we consider the
evidence in the light most favorable to the prevailing party,
drawing all reasonable inferences in support of the findings.
(Ribakoff, at p. 162; accord Keading v. Keading (2021)
60 Cal.App.5th 1115, 1125; Schmidt v. Superior Court (2020)
44 Cal.App.5th 570, 581-582.) “‘“[U]nder the doctrine of implied
findings, the reviewing court must infer, following a bench trial,
that the trial court impliedly made every factual finding
necessary to support its decision.”’” (Ribakoff, at p. 162; see
10
Schmidt, at p. 582; Thompson v. Asimos (2016) 6 Cal.App.5th
970, 981.)
B. The Enforcement of Judgments Law
The Enforcement of Judgments Law (§ 680.010 et seq.) “is a
comprehensive statutory scheme for the enforcement of civil
judgments in California.” (Grayson Services, Inc. v. Wells Fargo
Bank, supra, 199 Cal.App.4th at p. 569; see SBAM Partners, LLC
v. Wang (2008) 164 Cal.App.4th 903, 909.) 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.’” (Gilman v. Dalby (2021) 61 Cal.App.5th 923, 926;
see Oldham v. California Capital Fund, Inc. (2003)
109 Cal.App.4th 421, 430 [section 708.410 authorizes a judgment
creditor to obtain a lien on a pending action “to establish and
preserve the judgment creditor’s priority to the money and
property the judgment debtor may receive from the pending
action”].) “The judgment creditor may assert this lien when the
judgment debtor sues for money or property, or where the action
or proceeding establishes that the judgment debtor has an
interest in money or property . . . .” (Ahart, Cal. Practice Guide:
Enforcing Judgments and Debts (The Rutter Group 2020 supp.)
¶ 6:1476.)5
5 Section 708.410, subdivision (a), provides: “A judgment
creditor who has a money judgment against a judgment debtor
who is a party to a pending action or special proceeding may
11
A judgment creditor creates a lien under section 708.410 by
filing “a notice of lien and an abstract or certified copy of the
judgment creditor’s money judgment in the pending action or
special proceeding.” (§ 708.410, subd. (b).) The judgment creditor
must also serve on all parties in the action or special proceeding a
copy of the notice of lien and a statement of the date when the
notice of lien was filed in the action or special proceeding,
although “[f]ailure to serve all parties as required . . . does not
affect the lien created by the filing under subdivision (b), but the
rights of a party are not affected by the lien until the party has
notice of the lien.” (§ 708.410, subd. (c).)
If a third person has possession or control of the judgment
debtor’s property that is subject to a lien, the judgment creditor
can create a lien enforceable against the third person by serving
a copy of the writ of execution and a notice of levy on the third
person. (§ 701.010, subd. (a); see Grayson Services, Inc. v. Wells
Fargo Bank, supra, 199 Cal.App.4th at pp. 565-566 [judgment
creditor can create a lien against the judgment debtor’s deposits
at a third party bank under section 701.010].) If the third person
is required to make payments to the levying officer and fails or
refuses without good cause to do so, the third person is liable to
the judgment creditor. (§ 701.020, subd. (a).)
obtain a lien under this article, to the extent required to satisfy
the judgment creditor’s money judgment, on both of the following:
[¶] (1) Any cause of action of such judgment debtor for money or
property that is the subject of the action or proceeding. [¶]
(2) The rights of such judgment debtor to money or property
under any judgment subsequently procured in the action or
proceeding.”
12
C. Nossaman Established and Provided Notice of the
March 29, 2006 Lien
Norgaard presents a variety of reasons why the March 29,
2006 lien on Waworuntu’s interest in the Durst action was
ineffective. The trial court correctly rejected them all. First,
Norgaard argues Nossaman did not serve the March 29, 2006
notice of lien in accordance with the May 10, 2005 order granting
Nossaman’s motion to be relieved as counsel for Waworuntu.
That order stated: “If the client’s current address is known,
service on the client must hereafter be made at that address
unless otherwise ordered in item 13,” which in turn stated that
service on Waworuntu “shall also be made on [his] agent, Helen
Wong . . . .” The order also identified Waworuntu’s current
address as a building in Jakarta, Indonesia. Nossaman served
the March 29, 2006 notice of lien on Waworuntu at the address
where Waworuntu was incarcerated and on Norgaard, who was
then counsel of record for Waworuntu in the Durst action.
Nossaman did not serve the notice on Waworuntu at his Jakarta
address or on his agent.
The trial court properly ruled service of the notice of lien on
Waworuntu was valid because Norgaard was counsel of record for
Waworuntu at the time the notice was served. Section 708.410,
subdivision (c), requires only that judgment creditor serve the
notice of lien on all parties to the action in which the judgment
creditor files the lien in a pending action. And California Rules of
Court, rule 1.21(a) provides that, if a party is represented, service
is effected by serving the party’s attorney. The order granting
Nossaman’s motion to be relieved as counsel for Waworuntu left
Waworuntu temporarily unrepresented; for this reason, the order
specified a location to serve Waworuntu, at least until he
13
obtained new counsel. That order did not make service of any
future filings on counsel for Waworuntu ineffective. Indeed, once
Waworuntu retained Norgaard as his new attorney of record,
Nossaman could no longer serve or communicate directly with
Waworuntu and properly served Norgaard. (See Cal. Rules of
Prof. Conduct, rule 4.2 (former rule 2-100).)
Moreover, as stated, section 708.410, subdivision (c),
provides that “[f]ailure to serve all parties as required . . . does
not affect the lien . . ., but the rights of a party are not affected by
the lien until the party has notice of the lien.” It is undisputed
that Waworuntu had notice of the lien by March 29, 2006 (or
within five days of March 29, 2006), when Norgaard was served
with the notice by mail. (See Gilman v. Dalby, supra,
61 Cal.App.5th at p. 938 [“[p]arties . . . may generally satisfy
notice requirements by serving notice on the opposing party’s
counsel”]; Roche v. Hyde (2020) 51 Cal.App.5th 757, 797-798 [an
attorney’s knowledge is imputed to the client under agency
principles].)
Second, Norgaard argues Nossaman did not take steps to
“establish, execute on or enforce” the March 29, 2006 lien until
Nossaman obtained an execution lien on December 5, 2013 and
commenced this action on January 30, 2014. But despite ticking
through a long list of things Nossaman could have done to enforce
its lien, Norgaard does not identify anything the Enforcement of
Judgments Law required Nossaman to do that it did not do. For
example, Norgaard contends Nossaman’s lien must be “enforced
in an action to establish its priority over other liens,” but cites no
statute requiring any such action.6 Norgaard identifies a number
6 Norgaard cites section 708.460, subdivision (a), but that
provision states: “If a lien is created pursuant to this article, the
14
of other provisions of the Enforcement of Judgments Law, all of
which describe various ways Nossaman might have chosen to
enforce its lien, but none of which required Nossaman to proceed
in that manner. (See Ahart, Cal. Practice Guide: Enforcing
Judgments and Debts, supra, ¶ 6:147 [“[t]he proper method of
enforcing a judgment depends upon a number of factors—e.g.,
type of asset involved; judgment amount vs. enforcement cost;
and likelihood the debtor may file for bankruptcy,” and “there are
pros and cons to using any enforcement procedure”].)
Finally, Norgaard argues that, because there was no valid
writ of execution for the October 29, 2006 lien, the lien did not
exist. But as Norgaard observes, a lien in a pending action is not
subject to execution. (See § 699.720, subd. (a).) Instead, the
judgment creditor creates a lien in a pending action by filing a
notice of lien and an abstract or certified copy of the judgment
creditor’s money judgment in the pending action. (See § 708.410,
subd. (b); In re Marriage of Kerr (1986) 185 Cal.App.3d 130, 133.)
Only after final judgment in the Durst action could Nossaman file
a writ of execution to execute on Waworuntu’s interest in the
judgment. Nossaman did that on October 7, 2013 and served
Norgaard with that writ of execution.
court clerk shall endorse upon the judgment recovered in the
action or special proceeding a statement of the existence of the
lien and the time it was created.” Not only does that provision
not prescribe any action on the part of the judgment creditor, but
the clerk of the court in the Durst action appears to have
complied with section 708.460 by endorsing on the judgment in
that case the execution lien created on December 5, 2013. And
the lien on the money judgment created on December 5, 2013
related back to the March 29, 2006 lien. (See § 697.020.)
15
D. The Execution Lien Created on October 7, 2013
Related Back to the March 29, 2006 Lien in a Pending
Action
Norgaard argues the trial court erred in ruling the
execution lien created by the October 7, 2013 notice to Norgaard
related back to the March 29, 2006 lien. Section 697.020,
subdivision (b), provides: “If a lien is created on property
pursuant to this division and a later lien of the same or a
different type is created pursuant to this division on the same
property under the same judgment while the earlier lien is in
effect, the priority of the later lien relates back to the date the
earlier lien was created.” In concluding that the October 7, 2013
execution lien related back to the March 29, 2006 lien in a
pending action, the trial court necessarily found that the
October 7, 2013 execution lien and the March 29, 2006 lien were
created “on the same property under the same judgment” (see
Ribakoff v. City of Long Beach, supra, 27 Cal.App.5th at p. 162),
and Norgaard does not argue the March 29, 2006 lien was not “in
effect” on October 7, 2013.7
Substantial evidence supported the trial court’s finding.
Norgaard argues that the March 29, 2006 lien covered
“Waworuntu’s causes of action in [the Durst action] and his rights
to money or property under any judgment subsequently procured
in that action” and that the October 7, 2013 lien covered “funds
previously received and disbursed by Norgaard from the MBI
action and the [QSDI bankruptcy].” These are the same
property. The only reason Waworuntu had any claim to the
7 Norgaard argues the March 29, 2006 lien never existed, but
assuming its existence, Norgaard does not contend the lien was
not in effect on October 7, 2013.
16
funds received by Norgaard in connection with the MBI action
and QSDI bankruptcy was because of the Durst action.
Indeed, as counsel for Waworuntu, Norgaard represented
to three courts that Waworuntu was entitled to the MBI action/
QSDI bankruptcy settlement funds precisely because Waworuntu
prevailed against Bandero and Cheng Cheng in the Durst action.
First, on August 26, 2008 Waworuntu filed in the Durst action an
application for a right to attach order and writ of attachment
seeking to attach the settlement payment to Bandero and Cheng
Cheng from National Union. Waworuntu argued he was entitled
to the $550,000 payment because Waworuntu was “certain to
prevail on his claims” in that action and “the $550,000
Settlement Payment will vanish, just like the $12,000,000 before
it,” if the court in the Durst action did not grant his application.
Second, on December 24, 2008 Waworuntu filed in the
QSDI bankruptcy proceeding a motion contesting the bankruptcy
court’s jurisdiction over the settlement payment, which
Waworuntu argued was not an asset of the QSDI estate.
Waworuntu argued to the bankruptcy court that the court in the
Durst action had jurisdiction over the settlement payment as a
result of the temporary protective order entered in the Durst
action.
Finally, in his May 2013 complaint in the MBI action,
Waworuntu alleged the judgment in the Durst action made him
“entitled to immediate and unconditional receipt of all
[settlement] funds held in the Joint Account.” Waworuntu
asserted he was therefore entitled to the funds ultimately
disbursed to Norgaard’s client trust because those funds were
“money or property” procured under the judgment in the Durst
action. The trial court did not err in ruling that the execution
17
lien of October 7, 2013 related back to the lien on a pending
action of March 29, 2006.
E. Norgaard Received Funds Subject to the October 7,
2013 Notice of Levy
Norgaard challenges the trial court’s finding that the
“settlement funds received by [Norgaard] belonged to Waworuntu
and were subject to [Nossaman’s] lien.” Norgaard argues he “did
not ever receive or hold any funds due to Waworuntu by him, or
property of Waworuntu or held on his behalf.” Substantial
evidence supports the trial court’s finding to the contrary.
The March 29, 2006 lien attached to Waworuntu’s “rights
to money or property under any judgment” procured in the Durst
action. Waworuntu obtained the $155,524.55 payment as a
result of that action, which Norgaard received on behalf of
Waworuntu into Norgaard’s client trust account. Even without
notice of the October 7, 2013 lien against Norgaard, the funds
Norgaard received were subject to the March 29, 2006 lien. That
Norgaard quickly transferred the funds to a general account did
not transform the funds into Norgaard’s money or otherwise
affect Nossaman’s ability to enforce the March 29, 2006 lien. (See
§ 708.470, subd. (c) [a third party having notice of a lien on a
pending action is liable to the judgment creditor for the value of
the lien where the third party transfers property subject to the
lien or paid an amount to the judgment debtor that was subject to
the lien]; In re Marriage of Katz (1991) 234 Cal.App.3d 1711,
1720 [section 708.470, subdivision (c), “allows a judgment creditor
. . . to obtain a judgment against a person . . . who has
transferred assets subject to a lien created pursuant to section
708.410 to a judgment debtor”]; see, e.g., Pangborn Plumbing
18
Corp. v. Carruthers & Skiffington (2002) 97 Cal.App.4th 1039,
1056-1057 [an accounting firm that received settlement funds on
behalf of its client, the judgment debtor, was liable to the
judgment creditor, where the firm knew the funds were subject to
a lien on a pending action].)
Norgaard does not dispute that the $155,524.55 he received
on July 12, 2013 originated from the National Union settlement
payment in the QSDI bankruptcy proceeding. He contends,
however, that “all parties . . . agreed that such funds were to be
paid to Norgaard and in fact were paid to Norgaard.” Norgaard
cites a stipulation for the release of funds filed in the MBI action,
but that stipulation provided that the payment “shall be
distributed to Waworuntu, or to his counsel’s trust account, as
may be designated by Waworuntu . . . .” Norgaard also cites a
variety of trial exhibits, none of which indicates anyone other
than Norgaard agreed that the funds received from the
settlement payment somehow belonged to Norgaard.8 And
counsel for Nossaman, who testified at the trial, “emphatically
denied” Nossaman ever agreed or consented to the payment of
the settlement funds to Norgaard. (See Ribakoff v. City of Long
Beach, supra, 27 Cal.App.5th at p. 162 [“‘A single witness’s
testimony may constitute substantial evidence to support a
finding.’”]; see also Schmidt v. Superior Court, supra,
44 Cal.App.5th at p. 582.)
Norgaard also argues the funds he received as a result of
the MBI action were “obtained” from defendants who were not
8 Certain exhibits Norgaard cites are his handwritten notes,
which the trial court admitted into evidence only for the “limited
purpose of evidence that [Norgaard] made notes, but not for the
truth thereof.”
19
parties to the Durst action (i.e, counsel for Bandero and Cheng
Cheng, who had outstanding attorneys’ liens). But the funds still
originated from the National Union settlement payment to
Bandero and Cheng Cheng. That other attorneys may have had
and then relinquished claims to the settlement funds did not
affect Waworuntu’s entitlement to or ownership of the funds.
F. Norgaard’s Receipt of Funds Pursuant to Various
Orders and Stipulations Did Not Invalidate
Nossaman’s Lien
Norgaard contends the March 29, 2006 lien in a pending
action was “inapplicable” to the funds he received on behalf of
Waworuntu through the MBI action because those funds were
disbursed pursuant to various court orders and stipulations in
the Durst action, the QSDI bankruptcy, and the MBI action.
Neither the law nor the facts support Norgaard’s arguments.
Norgaard cites the language of the court’s statement of
decision in the Durst action, which created the constructive trust
over the $12 million judgment and “any assets purchased with
the proceeds of those funds.” Norgaard argues the funds he
received were “‘assets purchased’ . . . because any rights of
Bandero and [Cheng Cheng] in the Queen Mary project were
purchased with the funds of which Waworuntu had been
defrauded, and because the funds invested by Waworuntu
financed the Bandero and [Cheng Cheng] litigation against third
parties that resulted in the QSDI case settlement.” Even if the
(nonexistent) development rights in the Queen Mary and legal
fees incurred by Bandero and Cheng Cheng constituted “assets
purchased with the proceeds” of Waworuntu’s $12 million
investment (which is doubtful), the creation of the constructive
20
trust did not affect the scope or enforceability of Nossaman’s lien
on Waworuntu’s “rights to money or property under any
judgment procured in [the Durst] action.” Moreover, Norgaard’s
argument implies that, contrary to the argument he has made in
this action, the funds Norgaard received indeed belonged to
Waworuntu.9
Norgaard bases his next argument on the language of the
March 29, 2006 notice of lien. As required by section 708.420, the
notice stated: “No compromise, dismissal, settlement, or
satisfaction of this action or proceeding or any of the rights of the
[judgment debtor] to money or property under any judgment
procured in this action or proceeding may be entered into by or on
behalf of [the judgment debtor], and that person may not enforce
any rights to money or property under any judgment procured in
this action or proceeding by a writ or otherwise, unless one of the
following requirements is satisfied: [¶] a. the prior approval by
order of the court in this action or proceeding has been obtained;
[¶] b. the written consent of the [judgment creditor] has been
obtained or that person has released the lien; or [¶] c. the money
judgment of the [judgment creditor] has been satisfied.” (Italics
added.) According to Norgaard, an order of the court in the Durst
action and orders and stipulations in the QSDI bankruptcy
9 Norgaard also contends Nossaman could not enforce the
2006 lien in a pending action against funds received into the
constructive trust created in the Durst action because the
execution lien on the money judgment in the Durst action was not
created for another four years. But Nossaman timely obtained a
lien on the money judgment in the Durst action after that
judgment became final in 2013, and as stated, that lien related
back to the March 29, 2006 lien. (See § 697.020.)
21
proceeding and the MBI action provided “prior approval” as
required in the notice of lien to release the funds to Norgaard.
The language in the notice required by section 708.420,
however, concerns the compromise, dismissal, settlement, or
satisfaction of the action in which the lien on a pending action
was filed, and the Durst action was not compromised or settled.
Section 708.420 reflects the addition of section 708.440 to the
Enforcement of Judgments Law, which provides that “no
compromise, dismissal, settlement, or satisfaction of the pending
action or special proceeding or the judgment procured therein
may be entered into by or on behalf of the judgment debtor,
without the written consent of the judgment creditor or
authorization by order of the court . . . .” (§ 708.440, subd. (a).)
The Legislature added this provision “to prevent, for example, the
judgment creditor from forcing the judgment debtor to proceed
with the action when the court concludes that it is in the best
interests of the parties to settle.” (16 Cal. Law Revision Com.
com. (1982) p. 1521.) Neither section 708.440 nor the language
required by section 708.420 applies to settlements of other actions
involving the judgment debtor or the judgment debtor’s rights to
money or property in those actions.
And even if the language in the notice of lien were
somehow relevant to the circumstances in this case, the various
orders Norgaard cobbles together do not do what he claims they
do. Norgaard begins with the November 2008 joint stipulation
entered in the Durst action, which prevented the disbursement of
settlement funds paid into the Lee Durst Trust Account without
“further court order.” He then points to the February 2009 order
in the QSDI bankruptcy proceeding, which required National
Union to deposit $154,000 of the settlement funds into a joint
22
account established by Bandero, Allen Matkins, MBI Liquidation,
and Waworuntu and the remainder into the Lee Durst Trust
Account. Finally, Norgaard cites the July 2013 stipulation in the
MBI action, which required the funds in the joint account, not the
funds in the Lee Durst Trust Account, to be paid to Waworuntu.
Together Norgaard argues this trifecta of orders and stipulations
created the “prior approval” of the court in the Durst action to
disburse funds to Norgaard. But the funds Norgaard eventually
received on behalf of Waworuntu did not pass through the Lee
Durst Trust Account referenced in the November 2008 joint
stipulation in the Durst action. And even if the court in the Durst
action approved the payment of funds to Waworuntu, through a
trust or otherwise, that approval would not have affected
Nossaman’s lien on Waworuntu’s rights to money or property
received under the judgment in that action.10
10 Because we rely only on evidence admitted at trial as
described in the settled statement, the parties’ various objections
to each other’s appendices are moot.
23
DISPOSITION
The judgment is affirmed. Nossaman is to recover its costs
on appeal.
SEGAL, J.
We concur:
PERLUSS, P. J.
FEUER, J.
24