Missed the Deadline to Seek Attorney Fees? Post-Judgment Fees Are Still Available

Timothy Kowal, Esq.
January 6, 2021

Failing to timely seek fees after judgment does not forfeit the right to seek postjudgment fees, holds the Second District, Division Six in Vincent v. Sonkey (D2d6 Dec. 29, 2020) No. B293251.

After obtaining a default judgment of $123,000 on a lease agreement, plaintiff failed to file a motion for attorney fees. Defendant then moved to set aside the default, claiming she did not have notice of the action. The trial court initially granted the motion and set aside the default, but on plaintiff's motion for reconsideration, the trial court thought better of it:

"Upon reconsideration," the trial court said, "the court strikes [defendant's] declaration based on her lack of veracity."

Defendant filed another reconsideration motion, this time unsuccessfully.

By now, plaintiff's fees for this postjudgment work plaintiff cut into her judgment substantially. So she moved for fees for her postjudgment fees. But the trial court denied her fees, relying on Garcia v. Politis (2011) 192 Cal.App.4th 1474, 1479, which held that "a party seeking entry of a default judgment must apply for all of the relief sought-including attorney fees-when application is made for entry of default."

The Second District reversed. Garcia's holding did not reach postjudgment fees, and "[t]here is no statutory authority to impose a forfeiture here. Forfeitures are not favored in the law." (Except, this cynic notes, when the court would prefer to affirm.)

In these circumstances, it would be foolish to conclude plaintiff's forfeiture of her right to prejudgment fees operated as a forfeiture of postjudgment fees as well. As the Court pragmatically observes, plaintiff "could have reasonably decided to forfeit attorney fees for the small amount of time it took her attorney to file the complaint and take a default. But at the time of the default judgment, she could not have predicted that the defaulting defendant would set aside the judgment and become a party post-judgment."

The Court reversed and remanded to consider plaintiff's fee motion on the merits.

Tim Kowal helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes a newsletter of appellate tips for trial attorneys at www.tvalaw.com/articles. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.

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