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Alfredo Garcia v. Sofia Politis

February 25, 2011

ALFREDO GARCIA, PLAINTIFF AND APPELLANT,
v.
SOFIA POLITIS, AS TRUSTEE, ETC., DEFENDANT AND RESPONDENT.



(Los Angeles County Super. Ct. No. BC416519) APPEAL from an order of the Superior Court for Los Angeles County, Ruth Ann Kwan, Judge.

The opinion of the court was delivered by: Willhite, J.

CERTIFIED FOR PUBLICATION

Affirmed.

This case presents the question: Is a plaintiff who obtains a default judgment by written declaration entitled to seek statutory attorney fees by means of a postjudgment motion? We conclude the answer to this question is "No." 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. Accordingly, we affirm the trial court's denial of plaintiff Alfredo Garcia's postjudgment motion for attorney fees.

BACKGROUND

Garcia filed a two-page complaint against defendant Sofia Politis as Trustee of the Dimitrios and Sofia Politis Trust (defendant) alleging a violation of Civil Code sections 51, 54, and 54.1 based upon defendant's alleged failure to provide a designated van-accessible, handicap parking spot in a parking lot defendant owned. In the prayer for relief, Garcia sought "$4,000 in damages, permanent injunctive relief, attorney's fees and costs, and all other relief that the Court may deem proper." A default judgment was entered in favor of Garcia against defendant, awarding Garcia $4,000 in damages and $385 in costs, and ordering defendant to designate a van-accessible handicap parking spot in the parking lot.

The record on appeal does not include the request for entry of default or the request for default judgment. The form judgment, however, indicates that the court entered judgment under Code of Civil Procedure section 585, subdivision (d), based upon Garcia's written declaration. The form judgment (Judicial Council form JUD-100) also includes a box to be used to indicate the amounts to be awarded. The box provides space for five kinds of awards: (1) damages; (2) prejudgment interest; (3) attorney fees; (4) costs; and (5) other. Only the damages and costs spaces were marked.

Two months after the default judgment was entered, Garcia filed a noticed motion requesting $4,302.50 in attorney fees under Civil Code sections 52, subdivision (a), 54.3, subdivision (a), and 55. The trial court denied the motion, finding that Garcia failed to submit a request for attorney fees at the time he filed his request for default, as required under California Rules of Court, rule 3.1800.*fn1 Garcia timely filed a notice of appeal from the order denying his motion.

DISCUSSION

Garcia argues the trial court erred by denying his motion because he was entitled to seek statutory attorney fees by noticed motion under Code of Civil Procedure section 1033.5 (section 1033.5), and was not required to request attorney fees before entry of the default judgment. In making this argument, Garcia focuses solely on section 1033.5 (the statute governing items allowable as costs) and a portion of the Rules of Court governing attorney fee awards generally.

He notes that section 1033.5 provides that attorney fees are allowable as costs when authorized by statute (§ 1033.5, subd. (a)(10)(B)), and that those fees "may be fixed as follows: (A) upon a noticed motion, (B) at the time a statement of decision is rendered, (C) upon application supported by affidavit made concurrently with a claim for other costs, or (D) upon entry of default judgment" (§ 1033.5, subd. (c)(5)). He argues that the use of the word "may" in the statutory provision for fixing the amount of attorney fees gives the prevailing party the power to choose among the various options in any case in which attorney fees are sought. And he contends that, if the prevailing party chooses the first option -- a noticed motion -- rule 3.1702(b) of the California Rules of Court provides that the prevailing party may bring that noticed motion after judgment has been rendered, as long as it is served and filed within the time for filing a notice of appeal.*fn2

But in making this argument, Garcia ignores the statute and rule governing the procedure for entry of default judgments -- Code of Civil Procedure section 585 (section 585) and California Rules of Court, rule 3.1800 (rule 3.1800).

Subdivision (a) of section 585 sets forth the procedure for entry of a default judgment in an action "arising upon contract or judgment for the recovery of money or damages only." It provides that, upon written application by the plaintiff, the clerk must enter the default of the defendant and immediately "enter judgment for the principal amount demanded in the complaint, . . . together with interest allowed by law or in accordance with the terms of the contract, and the costs against the defendant." (Code Civ. Proc., § 585, subd. (a).) The clerk may include attorney fees in the judgment if a schedule of attorney fees has been adopted by rule of court and the contract provides for attorney fees or the action is one in which the plaintiff is entitled by statute to recover attorney fees. If the plaintiff is entitled to recover attorney fees but no schedule of attorney fees has been adopted by rule of court, the plaintiff is required to "file a written request at the time of application for entry of the default of the defendant or defendants, to have attorneys' fees fixed by the court," and the court will then hear the application and render judgment. (Ibid.)

Actions that do not arise upon contract or judgment for the recovery of money or damages only are governed by subdivision (b) of section 585. That subdivision provides that the clerk must enter the default of the defendant upon written application of the plaintiff, and that "[t]he plaintiff thereafter may apply to the court for the relief demanded in the complaint. The court shall hear the evidence offered by the plaintiff, and shall ...


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