Fourth District, Division 2 Finds No “Prevailing Party” Standard Applies in Post-Judgment Collection Efforts With Respect to Fee Recovery.
In this category, we have examined several decisions dealing with statutes that allow for fee recovery, if certain conditions are met (with a judgment having to provide for fee recovery), under Code of Civil Procedure sections 685.040 and 685.080. Section 685.040 simply provides “[t]he judgment creditor is entitled to the reasonable and necessary costs of enforcing a judgment” including attorney’s fees “if the underlying judgment includes an award of attorney’s fees to the judgment creditor” pursuant to contract, statute or law, having no “prevailing party” language. The next unpublished decision, coming out of the Fourth District, Division 2, dealt with post-judgment collection efforts arising out of a prior anti-SLAPP win.
Cochran v. City of Murrieta, Case No. E050649 (4th Dist., Div. 2 Nov. 30, 2010 unpublished) concerned a defendant who won anti-SLAPP fee recovery against certain plaintiffs, with defendant bringing a separate fraudulent conveyance action by which she obtained reconveyance of a piece of property from one losing plaintiff to plaintiff’s minor daughter (to provide a college fund, losing plaintiff said at a judgment debtor exam). Defendant then moved to recover additional attorney’s fees of $23,790, some in the pending case for post-judgment collection efforts and some incurred in the fraudulent conveyance action. The lower denied the requests for fees, basically expressly doubt that there was authority to award fees. An appeal followed.
The appellate court reversed. The issue of fee entitlement was to be reviewed de novo, with the law providing that post-judgment attorney’s fees for pursuing an anti-SLAPP fee judgment are indeed recoverable under section 685.040. (See Lucky United Properties Inv., Inc. v. Lee (2010) 185 Cal.App.4th 125, 140 [discussed in our May 29, 2010 post].) A number of other cases recognized that fees, even though incurred in a separate action, may be recovered as part of the postjudgment collection process. (E.g., Downen’s, Inc. v. City of Hawaiian Gardens, 86 Cal.App.4th 856, 859, 862, 864 (2001); Jaffe v. Pacelli, 165 Cal.App.4th 927, 934 (2008) [reviewed in our August 2, 2008 post]; Chinese Yellow Pages Co. v. Chinese Overseas Marketing Service Corp., 170 Cal.App.4th 868, 885 (2008) [reviewed in our January 1, 2009 post]; Globalist Internet Technologies, Inc. v. Reda, 167 Cal.App.4th 1267, 1273-1274 (2008) [reviewed in our October 28, 2008 post].) Beyond that, section 685.040 does not require a “prevailing party,” but defendant did achieve practical success anyway by obtaining reconveyance of the property to one of the plaintiff’s daughter.
The matter was remanded for the lower court to grant the fee motion and use its discretion to determine the amount of fees to be awarded.