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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 Div. 3 November 23, 2020) (unpublished), where plaintiff sought contempt against defendant for failing to comply with an agreement to remove defendant's sewer system from a sewer line.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.
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