First District, Division Five Implicitly Agrees With Second District’s Globalist Decision.
In our post of October 28, 2008, we reviewed the Fourth District, Division Three’s decision in Globalist Internet Technologies, Inc. v. Reda, 167 Cal.App.4th 1267 (2008), where the appellate court ruled that fees incurred in the defense of a related settlement enforcement proceedings were recoverable under Code of Civil Procedure section 685.040—a statute allowing a judgment creditor to recover “[a]ttorney’s fees incurred in enforcing a judgment” but only if “the underlying judgment includes an award of attorney’s fees to the judgment creditor ….” In Globalist, the underlying judgment did include an award of fees, so that one of the necessary prerequisites of section 685.040 was met for purposes of awarding substantial fees incurred in the related proceedings.
However, a different situation was presented in a recent unpublished First District, Division Five decision. Lien v. Lucky United Properties Investments, Inc., Case Nos. A118698 & A120068 (1st Dist., Div. 5 Nov. 26, 2008) (unpublished) involved a trial court order awarding fees to obtain a prior judgment, an order which was reversed on appeal by the First District. Thus, at the time of review of the orders at issue in the recent unpublished decision, there was no fee award in the underlying judgment such that the lower court did not err in declining to award fees. (Cf. Imperial Bank v. Pim Electric, Inc., 33 Cal.App.4th 540, 558 (1995).)
BLOG UNDERVIEW—For another recent case involving section 685.040, see Jaffe v. Pacelli, 165 Cal.App.4th 927 (2008), discussed in Globalist and in our August 2, 2008 post.