Judgment Enforcement: Trial Court’s Denial On Remand Of Code Of Civil Procedure section 685.040 Fees For Bringing An Unreasonable And Unnecessary Motion To Compel Affirmed On Appeal

Defendants Were Attempting To Comply With The Judgment, But Plaintiffs’ Were Intentionally Thwarting Their Attempts.

            In our November 26, 2020 post, we discussed the unpublished decision in Buechler v. Butker, Case No. G058054 (4^th Dist. Div. 3 November 23, 2020), wherein the trial court had denied the $37,052.50  in fees sought by plaintiff pursuant to Code Civ. Proc. § 685.040 for enforcement of judgment regarding a dispute over the use of a lateral sewer line – determining that defendant’s failure to comply was not willful and was in part due to plaintiff’s interference.  Ultimately, the 4/3 DCA reversed and remanded for a determination as to whether the fees incurred were “reasonable and necessary” as they are required to be in order to be recoverable.

            Back to the trial court they went – the parties in Buechler v. Butker, Case No. G060470 (4^th Dist., Div. 3 October 25, 2022) (unpublished).  This time, plaintiff sought over $60,000 after adding in $15,127 for fees incurred in the first appeal, $7,215 for the second fee motion, and another $1,000 in fees for preparing for and appearing at the hearing on the fee motion.  Again, the trial court denied plaintiff’s motion – concluding the requested fees were not reasonable and necessary because plaintiffs’ contempt motion was not the catalyst for defendants’ compliance because defendants were attempting to comply with the judgment prior to the contempt motion, but “Buechler’s actions were intended to impede Defendants’ efforts to comply with the Judgment and to make it as difficult and costly as possible for Defendants to construct a new sewage disposal system for their property.”  In what the 4/3 DCA described, in a 3-0 opinion authored by Acting Presiding Justice Bedsworth, as “an admirable ‘extra mile,’” the trial court took the time to explain what it would have awarded if it had concluded that the contempt motion was the catalyst for defendants’ compliance – $6,750 for the contempt motion itself, $7,100 for the appeal, and $5,200 for the attorney fee motions, for a total of $19,050.

            Affirming the trial court’s fee denial, the panel first explained that Code Civ. Proc., section 685.040 does not authorize an award of fees for an appeal from an order denying fees not incurred in connection with an enforcement proceeding, which left only the fees incurred in bringing the contempt motion at issue.  Although section 685.040 does not require a moving party for judgment enforcement to prevail, it does require that the proceeding be necessary in order to recover fees – something that did not exist here where plaintiffs “threw a monkey wrench into [defendants’] efforts to comply with the Judgment.”