Kowal Law Group Logo
Law News CA

Attorney Fees Recoverable Even for Unsuccessful Judgment Enforcement Efforts

Tim Kowal     December 2, 2020

So holds the Fourth District, Third Division Court of Appeal in Buechler v. Butker, Case No. G058054 (4th Dist. Div. 3 November 23, 2020) (unpublished), where plaintiff sought contempt against defendant for failing to comply with an agreement to remove defendant's sewer system from a sewer line. The agreement was reduced to judgment that also awarded contractual attorney fees. Plaintiff's effort to hold defendant in contempt was unsuccessful, in part because plaintiff kept shifting its position on how the sewer line was to be removed. So the trial court denied plaintiff's request for enforcement fees, noting the judgment did not provide for enforcement fees, and because plaintiff's enforcement effort was unsuccessful.

Reversing, the Fourth District, in an opinion by Justice Ikola, held nothing in CCP § 685.040 requires a plaintiff's judgment-enforcement efforts to be successful. Instead, they need only be “reasonable and necessary." As the trial court did not consider this factor, the case was sent back. (As covered here, failing to exercise discretion in an abuse of discretion.) Also, under section 685.040, a judgment need not expressly provide for further attorney fees; it need only contain an award of contractual attorney fees.

I admit I find the outcome a bit surprising. The trial court's finding that plaintiff's efforts were not successful sounds close enough, to me anyway, to a finding that those efforts were not "reasonable and necessary." Even the Fourth District seems to agree with the trial court's outcome, stating plaintiff's efforts "were counterproductive" and "actually inhibited the enforcement of the judgment.”

So given the Court does not seem to disagree with the trial court's ruling, and given the court did not find its opinion worth publishing, I find the outcome somewhat unusual. Nonetheless, it is a helpful reminder that plaintiffs enforcing a judgment have the wind at their backs, and tend to enjoy every presumption in their favor.

Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at CALpodcast.com, and publishes summaries of cases and appellate tips for trial attorneys. Contact Tim at [email protected] or (949) 676-9989.
Get “Not To Be Published,” a weekly digest of these articles, delivered directly to your inbox!

"It may be that the court is thought to be excessively legalistic. I should be sorry to think that it is anything else."

— Hon. Sir Owen Dixon, Chief Justice of Australia

"So far as the beginnings of law had theories, the first theory of liability was in terms of a duty to buy off the vengeance of him to whom an injury had been done whether by oneself or by something in one's power. The idea is put strikingly in the Anglo-Saxon legal proverb, 'Buy spear from side or bear it,' that is, buy off the feud or fight it out."

— Roscoe Pound, An Introduction to the Philosophy of Law

"Upon putting laws into writing, they became even harder to change than before, and a hundred legal fictions rose to reconcile them with reality."

— Will Durant

"At common law, barratry was 'the offense of frequently exciting and stirring up suits and quarrels' (4 Blackstone, Commentaries 134) and was punished as a misdemeanor."

Rubin v. Green (1993) 4 Cal.4th 1187

"Good people do not need laws to tell them to act responsibly, while bad people will find a way around the laws."

— Plato (427-347 B.C.)

"God made the angels to show Him splendor, … Man He made to serve Him wittily, in the tangle of his mind."

— Sir Thomas More in Robert Bolt's A Man for All Seasons

"Counsel on the firing line in an actual trial must be prepared for surprises, including requests for amendments of pleading. They cannot ask that a judgment afterwards obtained be set aside merely because their equilibrium was slightly disturbed by an unexpected motion."

Posz v. Burchell (1962) 209 Cal.App.2d 324, 334

Show neither partiality to the weak nor deference to the mighty, but judge your fellow men justly.


“It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is today, can guess what it will be tomorrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?”

— James Madison, Federalist 62

"Moot points have to be settled somehow, once they get thrust upon us. If an assertion cannot be proved, then it must be settled some other way, and nearly all of these ways are unfair to somebody."

—T.H. White, The Once and Future King

"A judge is a law student who grades his own papers."

— H.L. Mencken

Copyright © 2024 Kowal Law Group
linkedin facebook pinterest youtube rss twitter instagram facebook-blank rss-blank linkedin-blank pinterest youtube twitter instagram