Sometimes It Pays to Interplead.

Wertheim, Inc. v. Omidvar, No. B262485 (D2d1 Sept. 29, 2016)

This is a complicated and long running fight between two entities that appear to be jockeying to swindle a widow of her dead husband’s ASCAP and BMI songwriting royalties. After Party 1 won an arbitration, which Party 2 appealed but declined to post a bond to stay collection. Party 1 tried to levy against ASCAP and BMI, which responded by interpleading the royalty streams, obtaining a court-approved $238k, paid of the res, for the costs incurred in interpleading. See Code Civ. Proc. § 386 (permitting a discretionary award of fees for costs incurred in interpleading and obtaining discharge). But then the arb judgment got reversed, resulting in a ruling that Party 2 was entitled to the interplead funds. Party 2 then moved to recoup from Party 1 the fees paid to ASCAP and BMI under Code of Civil Procedure § 386.6, which permits gives the court discretion to allocate the interpleader’s fees to the claimants “as may appear proper.” The trial court denied the motion and Party 2 appeals.

The Court of Appeal affirms. It appears that there’s no transcript of the hearing on the fee motion, so the court’s terse minute order denying allocation is presumed to be correct and to include any implicit findings necessary to support it. Moreover, the circumstances supported denial. The only reason ASCAP and BMI interplead was because Party #2 took no effort to stay collection pending appeal. Had it posted a supersedeas bond, ASCAP and BMI would never have gotten involved and Party #2 could have recovered its bond cost from Party #1 as a recoverable cost. So, although a range of allocations between Parties #1 and #2 would fall within the reasonable exercise of the court’s discretion, that discretion wasn’t abused in denying Party #2 to recover part of the fees from Party #1.

Affirmed.