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« Trespass: 4/2 DCA Affirms Denial Of Code of Civil Procedure Section 1021.9 Attorney Fees To Cross-Complainant Achieving Partial Success On Trespass Claim | Main | Arbitration: After Having An Arbitration Award Previously Vacated And Having A New Petition To Compel Arbitration Denied, $181,375 Fee And $42,828.88 Cost Awards Affirmed On Appeal »

January 12, 2022

Comments

Dale

See Petition For Review S272954

Question of Law
Contrary to this Court’s ruling in McQueen, can a party claim appellate attorney fees under the Enforcement of Judgments Law by simply asserting that the fees were incurred “defending a judgment” on appeal?

Dale

For purposes of the time limit to file a motion for appellate attorney fees and costs, the fees are characterized by the fact they were incurred responding to an appeal and not whether or not the fees were authorized by a fee-shifting statute.

Thus, the following statement is not applicable to Appeal no. H047475.
“As set forth in Conservatorship of McQueen, 59 Cal.4th 602[, 614] (2014) when a fee-shifting statute authorizes the award of attorney fees, fees incurred in enforcement of the judgment – such as defending the judgment from attack – are recoverable under section 685.040.”

The statement above might be applicable if the fees were incurred in the trial court. But the facts in the record show the fees at issue were incurred responding to the appeal and NOT in the trial court.

“We agree with plaintiff and the amici curiae that where attorney fees are authorized by statute [(as they were here by Code of Civ. Proc., § 425.16, subd. (c)(1))], fees awarded for expenses incurred on appeal from the trial court judgment are not governed by the procedures of the Enforcement of Judgments Law. Rather, they are recovered under the procedures set forth in court rules promulgated pursuant to section 1034, subdivision (b).” (Conservatorship of McQueen (2014) 59 Cal.4th 602, 608.)

“Speaking more broadly, our procedural statutes and rules do not treat civil appeals as a part of the enforcement of judgment process. As stated above, the Enforcement of Judgments Law constitutes title 9 of part 2 of the Code of Civil Procedure, while civil appeals are governed by title 13 of that part (§§ 901-923) and by court rules prescribed pursuant to section 901. Under section 916, subdivision (a), the perfecting of an appeal generally stays, inter alia, "enforcement of the judgment or order" appealed from.” (Ibid.)

Dale

Disagree.
"Here, although the fees/costs were incurred on appeal, they were not incurred on direct appeal from the judgment" is a misstatement of fact.

Abandoned appeal no. H042743 was a direct appeal of the order denying Plaintiff's section 473 (d) motion in the trial court. All fees were incurred responding to appeal no. H042743 in the Court of Appeal and not defending the motion in the trial court. Thus, the fees are not claimed under the Enforcement of Judgments Law.

Appeal no. H047475 is from the order granting defendant's untimely motion (61 days) to claim appellate fees and costs incurred responding to appeal no. H042743.

“Nothing in our statutes or court rules suggests appellate fees come within the Enforcement of Judgments Law.” (Conservatorship of McQueen (2014) 59 Cal.4th 602, 608.)

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