Cappa v. F & K Rock & Sand, Inc.

Opinion

STONE (W. A.), J.

On November 9, 1983, the County of Fresno (County) recovered judgment in the superior court in an unrelated action against Steven Andrew Cape (aka Cappa) for child support arrearages in the amount of $10,398. The County was acting on behalf of the State of Washington to recover monies disbursed by Washington for the support of Cap-pa’s child.

Cappa entered into a contingency fee agreement on April 9, 1985, with Paul Mosesian, an attorney, whereby Mosesian agreed to represent Cappa in the instant action for personal injuries. Out of his gross recovery Cappa agreed to pay 33 VS percent for attorney’s fees and to reimburse Mosesian for costs advanced to prosecute the action. The agreement provided that Mosesian would be granted a lien on the gross recovery for fees and costs.

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[174]

On July 25, 1986, the County filed a notice of lien pursuant to Code of Civil Procedure section 708.410

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seeking to place a lien in the amount of $8,123 on any award of damages that Cappa might receive for his injuries. On August 1, 1986, the jury returned a verdict in favor of Cappa for $5,000, and a week later Mosesian filed a memorandum of costs and disbursements seeking to tax costs in the amount of $4,229.26. On November 12, 1986, the County refiled its notice of lien.

On November 19, 1986, defendants F & K Rock & Sand, Inc., and Rodney James Burns, filed a motion pursuant to Code of Civil Procedure section 708.470 for an order directing satisfaction of the lien filed by the County out of the damages awarded to Cappa. Mosesian opposed the motion on the basis that, pursuant to Civil Code section 2897, his lien for attorney’s fees and costs had priority over the judgment creditor’s lien for child support arrearages since his contractual lien was created prior to the judgment creditor’s lien. The trial court concluded the lien for attorney’s fees and costs had priority and ordered that Mosesian’s lien was to be satisfied before the subsequent lien for child support arrearages. The County, as intervener, appeals that order.