Metropolitan News-Enterprise


Wednesday, October 4, 2023


Page 1


Court of Appeal:

Lease’s Cap on Attorney Fees Lacks Post-Judgment Effect

$1,000 Limit Held Not to Preclude Higher Award in Connection With Enforcement Efforts


By a MetNews Staff Writer


Div. Seven of the Court of Appeal for this district held yesterday that a provision in a lease providing for an award of attorney fees to the prevailing party in a dispute, but capping an award at $1,000, did not preclude a judge from awarding fees in the amount of $27,721.41 based on the cost of legal services in enforcing the judgment.

Los Angeles Superior Court Judge Armen Tamzarian made the postjudgment award to Thomas Nash and Bo O’Connor who had prevailed in their breach of-contract action against Ninon Aprea, from whom they had rented a house. They obtained, on Nov. 10, 2021, a $59,191 default judgment for the amount of the rent plus interest, costs, and $1,000 in attorney fees, a judgment that was affirmed on appeal last March 13.

Tamzarian made the additional award on June 16, 2022.

Tamzarian’s Ruling

He said in his order:

“Judgment debtor argues the contract’s fee provision bars judgment creditors from recovering more than $1,000 in attorney fees. The parties’ lease provides. ‘In any action or proceeding arising out of this Agreement, the prevailing party between Landlord and Tenant shall be entitled to reasonable attorney fees and costs, collectively not to exceed $1,000.’…”

“The judgment. however, supersedes the contract’s $1,000 limit on attorney fees….

“Under this rule, the contract’s $1,000 limit does not apply to judgment creditors’ fees incurred enforcing the judgment. The judgment includes some amount of contractual attorney fees, therefore judgment creditors may recover attorney fees as costs under CCP § 685.040.”

Code of Civil Procedure §685.040 provides:

“The judgment creditor is entitled to the reasonable and necessary costs of enforcing a judgment. Attorney’s fees incurred in enforcing a judgment are not included in costs collectible under this title unless otherwise provided by law. Attorney’s fees incurred in enforcing a judgment are included as costs collectible under this title if the underlying judgment includes an award of attorney’s fees to the judgment creditor….”

Appellant’s Contention

Aprea argued on appeal:

“By entering into a contract, a contracting party takes the sour of limitations along with the sweets of benefits that are agreed upon, Civil Code §3521. The common law doctrine of merger cannot overcome the statutory rule.”

That section, contained in the “Maxims of Jurisprudence,” provides:

“He who takes the benefit must bear the burden.”

The appellant maintained:

“[C]ommon law merger consists of substitution for a new right for earlier rights held by a plaintiff….By merger doctrine, it is only Plaintiffs’ prior rights that are relinquished in exchange for the judgment, Plaintiffs cannot bring a new proceeding on the right relinquished. Neither common law merger nor CCP §685.040 says anything about the Defendant’s held right to the stipulated limitation.”

 Justice Gail Ruderman Feuer said in her opinion affirming Tamzarian’s decision: “In this appeal, Aprea contends the trial court erred in awarding over $1,000 in attorneys’ fees for enforcing the judgment because the lease authorized attorneys’ fees ‘not to exceed $1,000.’ However, once the judgment was entered, the terms of the lease, including the $1,000 limitation on fees, were merged into and extinguished by the judgment.

“Because the judgment included an award of attorneys’ fees authorized by contract, section 685.040 allowed an award of reasonable attorneys’ fees incurred in enforcing the judgment.”

She went on to say:

“[T]he Legislature in drafting the current version of section 685.040 did not intend to abrogate the merger doctrine, but rather, to ensure that a judgment creditor could obtain attorneys] fees incurred in enforcing a judgment notwithstanding termination of their contractual rights by merger into the judgment….The Legislature could easily have specified that contractual limitations on attorneys’ fees apply in enforcement proceedings. It did not.”

The notice of appeal was filed on Aug. 12, 2022. On Nov. 17, 2022, Tamzarian awarded an additional $50,220 pursuant to §685.040.

The case is Nash v. Apera, 2023 S.O.S. 364.

Attorneys on appeal were Paul Sigelman, for Apera, and Kenneth A. Linzer, for Nash and O’Connor.


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