Metropolitan News-Enterprise


Thursday, December 31, 2020


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Court of Appeal:

Attorney Fees Are Awardable to Plaintiff in Fighting Effort to Vacate Default Judgment

Gilbert Says Rule That a Plaintiff, Entitled to Fees Under Contract’s Fee-Shifting Clause, Forfeits Them If Not Sought Along With Default Judgment, Doesn’t Apply to Contested Post-Judgment Proceedings


By a MetNews Staff Writer


The rule that a plaintiff has forfeited a contractual right to attorney fees by failing to seek them at the time of moving for a default judgment does not bar an award of such fees after successfully fighting off the defendant’s attempt to be relieved of the judgment, the Court of Appeal for this district has decided.

Presiding Justice Arthur Gilbert of Div. Six wrote the opinion, filed Tuesday. It reverses an order by Ventura Superior Court Judge Kent M. Kellegrew denying postjudgment attorney fees to plaintiff Martha Vincent against defendants Reprudentia Sonkey and Whitenicious, Inc.

Vincent had sued upon a lease containing a provision that such fees would be payable to the party prevailing in litigation. She did not request the fees when she gained a $123,463 judgment, but did ask for “legal fees of at least $40,000” after the defendant fought to have the default judgment set aside, initially succeeding, but, after additional proceedings, losing.

Kellegrew relied upon the 2011 Court of Appeal opinion in Garcia v. Politis, authored by Justice Thomas L. Willhite Jr. of this district’s Div. Four. Willhite said that “[a] plaintiff electing to proceed by way of a default judgment may recover statutory attorney fees only if a request for those fees is included in the request for default judgment,” explaining:

“Entry of a defendant’s default terminates that defendant’s rights to participate in the litigation…and the case ends when default judgment is entered….Thus, it would be absurd to….[allow] a party to seek attorney fees by noticed motion after default judgment has been entered, because a case in which a defendant’s default has been taken necessarily has no adversarial quality and the defaulted defendant would have no right to participate in the motion.”

Gilbert had no quarrel with the decision in that case. He said it sets forth “a proper rule for a default case.”

The jurist continued (referring to the defendants collectively as “Sonkey”):

“But the case here is different. When the trial court granted Sonkey’s motion to vacate the default, this case became a contested adversarial proceeding. Sonkey filed an answer, became a party, and initiated litigation to which Vincent had to respond. Vincent incurred attorney fees to protect her judgment.

“To preclude Vincent from obtaining post-default judgment attorney fees would punish her for prevailing in a contested case. It would unfairly reward a defendant who made an unmeritorious attack on a valid judgment and force Vincent to incur all the expense to defend that judgment.”

Gilbert said that Vincent might not have bothered to seek attorney fees in connection with the entry of a default and the award of a judgment because the amount of time the lawyer expended on the matters was insubstantial.

“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,” he wrote. “Under such circumstances, Vincent did not forfeit fees.

“The trial court correctly ruled that Vincent could not seek attorney fees for the period leading up to the entry of the default judgment. But it erred by trying to extend the Garcia v. Politis rule to bar fees incurred to defend the judgment after the default judgment was entered.”

 The case is Vincent v. Sonkey, 2020 S.O.S. 6225.


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