Second District, Division 6 Applies Exception to the General Rule.
Generally, a judgment for damages under a contract replaces a defendant’s duty to perform the contract, which extinguishes any fee clause upon entry of judgment (except for postjudgment recovery of fees as specified under the CRC). (Jaffe v. Pacelli, 165 Cal.App.4th 927, 934.) However, in Sudman v. Young, Case No. B217157 (2d Dist., Div. 6 June 22, 2010) (unpublished), the appellate court reminded us of an important exception: the merger is not a bar where a subsequent claim for fees is based on a different cause of action or facts occurring after entry of a prior judgment. (Allied Fire Protection v. Diede Construction, Inc., 127 Cal.App.4th 150, 155 (2005).) The exception did apply in the facts before the panel, which led to affirmance of a $33,092.21 fee award in favor of the winning plaintiffs.