Fee Request Must Be Addressed In Default Judgment Packet Submissions.
The next case is one that any litigator should read when seeking a default judgment against a party. It sets forth the proper procedure for claiming attorney’s fees, and the incorrect way is to move for fees postjudgment.
The plaintiff in Garcia v. Sofia Politis, Case No. B224453 (2d Dist., Div. 4 Feb. 25, 2011) (certified for publication) learned this lesson the hard way. After obtaining a default judgment against defendant for $4,000 in damages, $385 in costs, and an order requiring designation of a parking lot spot for the handicapped, plaintiff then moved postjudgment for an award of fees in the amount of $4,302.50 under the disability discrimination fee-shifting statutes (Civ. Code, §§ 52(a), 54.3(a), 55). The trial court denied the motion as untimely because it should have been filed with his default judgment papers, but also indicated that only $330 would have been deemed to be reasonable fees.
The Second District, Division 4, in a 3-0 decision penned by Justice Willhite, affirmed.
Plaintiff argued that CCP § 1033.5(c)(5) allowed a party (“may” language) to opt to choose between making a noticed motion, making a request at the time a statement of decision is rendered, upon application supported by affidavit concurrently with a costs request, or upon entry of default judgment. The appellate court found this argument ignored the statute and court rules applicable to default judgments (Code Civ. Proc., § 585; Cal.Rules of Court, rule 3.1800), which require that plaintiff must request the fees in default judgment submission papers. The “may” language had to be read in tandem with the procedures applicable to default judgments.
The appellate court also found that it would make no sense to construe the procedural schemes any differently. Because a case ends when a default judgment is entered, it would be absurd to read section 1033.5 as allowing a party to seek fees in a postjudgment motion when the defaulted defendant would have no right to participate in the motion with no adversarial quality remaining in the case. “Therefore, a plaintiff seeking an award of attorney feees from a defaulting defendant must request those fees at the time the plaintiff requests entry of default.” (Slip Opn., p. 6.)
BLOG POINTER–Make sure you pray for fees in the complaint because section 585(b) allows a default judgment to be entered based on the prayer. Also, when claiming fees, follow any local court schedules for fees (usually for contract cases, see, e.g., Orange County Superior Court Local Rule 366) or, if the matter has no schedule or it is extraordinary in nature, provide competent proof on the requested lodestar.