CCP § 685.040 Was Dispositive.
County of Alameda v. Ottovich, Case No. A133891 (1st Dist., Div. 3 June 17, 2013) (unpublished) is a reminder that postjudgment enforcement fee recoveries have to meet the requirements of CCP § 685.040, with the simple recitations in a judgment not providing the necessary predicate for fee entitlement.
In this one, way back in 2005, County obtained an encroachment default judgment against appellant, with the judgment providing that County could seek fees and costs in obtaining compliance under the judgment. However, there was no contract or statutory basis for the award. Years later, County moved for a permanent injunction, won the injunction, and was awarded $59,052.90 in attorney’s fees for enforcing the judgment under CCP § 685.040.
Fee recovery reversed by the appellate court.
First of all, appellant’s failure to appeal the June 2005 judgment (which did not fix fees at the time) was not fatal because a later appeal from the fee “fixing” award suffices. (PR Burke Corp. v. Victor Valley Wastewater Reclamation Authority, 98 Cal.App.4th 1047, 1054-1055 (2002); City of Santa Paula v. Narula, 114 Cal.App.4th 485, 492 (2003).)
Section 685.040 requires a contractual or statutory basis for postjudgment enforcement fee recovery, separate and apart from a judgment recital that does not necessarily follow fee entitlement legal requirements. In this situation, the judgment itself did not meet section 685.040’s “fees authorized by law” requirement because there was no contract or statutory basis supporting fee recovery, with the Legislature eliminating equitable bases for prejudgment enforcement fee recoveries. (Tanner v. Tanner, 57 Cal.App.4th 419, 422-423 (1997) [4th Dist., Div. 3].)