Reversal Based On Trial Court’s Errors In Determining Two Elements Required For § 685.040 Fees, But 4/3 DCA Instructs Trial Court To Reconsider The Fees Motion On Remand Based On A Third Required Element – Whether The Incurred Fees Were Reasonable And Necessary.
A dispute over the use of a lateral sewer line was at issue in Buechler v. Butker, Case No. G058054 (4th Dist. Div. 3 November 23, 2020) (unpublished). The parties reached a settlement agreement whereby defendants agreed to detach their sewer system from the line. After several months passed without detachment, plaintiff and a cross-defendant successfully moved to have the settlement entered as judgment pursuant to Code Civ. Proc., § 664.6. Pursuant to a fees provision in the settlement agreement authorizing fees to the prevailing party on a § 664.6 motion, the trial court also awarded plaintiff and cross-defendant $5,140.00 in attorney’s fees and costs for bringing the motion.
Plaintiff and cross-defendant later filed an unsuccessful motion to hold defendants in contempt of court for their alleged failure to comply with the judgment – with the trial court determining that defendants’ failure to comply was not willful and was in part due to plaintiff’s interference. Afterward, plaintiff and cross-defendant moved for attorney fees in the amount of $37,052.50 as costs of enforcing the judgment pursuant to Code Civ. Proc. § 685.040, and the trial court denied – finding two elements for determining whether postjudgment attorney fees may be awarded pursuant to § 685.040 were not satisfied. First, the fees incurred were not for enforcement of the judgment and the contempt proceeding was unsuccessful. Second, the trial court concluded that the parties’ stipulated settlement agreement, which was reduced to judgment, contained no provision for attorney fees.
Plaintiff and cross-defendant appealed the fees denial, and the 4/3 DCA reversed.
On the first element, the panel concluded the trial court erred as the contempt proceedings were enforcement proceedings as the gist of the judgment required performance of a physical act – with the primary means by which performance may be compelled is to hold the nonperforming party in contempt. Although plaintiff and cross-defendants’ contempt proceedings were unsuccessful, nothing in § 685.040 requires the moving party to prevail in order to recover enforcement costs.
On the second element, § 685.040 does not require that the judgment contain a provision for further attorney fees – only that the judgment contain an award of contractual attorney fees, which the judgment in this case did.
However, as the 4/3 DCA pointed out in a 3-0 opinion authored by Justice Ikola, neither the parties nor the trial court addressed the third element required by § 685.040 – an element vested in the sound discretion of the trial court – whether the fees incurred in the contempt motion were “reasonable and necessary” as they are required to be in order to be recoverable.
On remand, the appellate panel instructed the trial court to reconsider the fees motion in light of this third element. Nevertheless, as the panel put it, “[T]he evidence supports a conclusion that [plaintiff’s] shifting position on how defendants were to replace their sewer connection, and the fees incurred in connection with that, were counterproductive and, rather than enforcing the judgment, actually inhibited the enforcement of the judgment.”
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