Chinese Yellow Pages Co. v. Chinese Overseas Marketing Service Corp.

I. INTRODUCTION

Code of Civil Procedure 1 section 685.040 allows a judgment creditor to recover reasonable and necessary attorney fees incurred in “enforcing” a judgment under specified circumstances. Plaintiff and judgment creditor, Chinese Yellow Pages Company (the creditor), appeals from an order denying a request pursuant to section 685.040 for postjudgment fees and costs incurred in a bankruptcy proceeding brought by defendant and judgment debtor, Chinese Overseas Marketing Service Corporation (the debtor). We conclude section 685.040 can extend to reasonable and necessary attorney fees and costs incurred in postjudgment bankruptcy proceedings under the circumstances of this case. Because the trial court ruled it had no jurisdiction to award reasonable and necessary attorney fees and costs, we reverse the order under review. Upon remittitur issuance, the trial court is to exercise its discretion and determine the amount of reasonable and necessary attorney fees and costs payable to the judgment creditor.

*871 H. BACKGROUND

The present case has a complexity to it not normally found in civil appeals. At issue is a motion for attorney fees and costs filed in the…

I respectfully dissent.

I would affirm the order denying the motion for attorney fees and granting the motion to tax costs because the underlying judgment does not contain *889 contractual attorney fees as required by Code of Civil Procedure section 685.040 (section 685.040). I explain.

On page 881, ante, the majority wrote: “Based on the foregoing, we conclude section 685.040 can permit the recovery of reasonable and necessary attorney fees and costs incurred in enforcing a judgment. The express language of section 685.040 extends to legal expenses incurred in the enforcement of a judgment.” If that were all there were to section 685.040, then I would agree with the majority that the order denying the motion for attorney fees and costs and granting the motion to tax costs should be reversed, for it is undisputed that Chinese Yellow Pages Company has incurred legal expenses in trying to enforce the underlying judgment.

But there is more to section 685.040. The third sentence of section 685.040 in full is: “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…

Code of Civil Procedure [1] section 685.040 allows a judgment creditor to recover reasonable and necessary attorney fees incurred in "enforcing" a judgment under specified circumstances. Plaintiff and judgment creditor, Chinese Yellow Pages Company (the creditor), appeals from an order denying a request pursuant to section 685.040 for postjudgment fees and costs incurred in a bankruptcy proceeding brought by defendant and judgment debtor, Chinese Overseas Marketing Service Corporation (the debtor). We conclude section 685.040 can extend to reasonable and necessary attorney fees and costs incurred in postjudgment bankruptcy proceedings under the circumstances of this case. Because the trial court ruled it had no jurisdiction to award reasonable and necessary attorney fees and costs, we reverse the order under review. Upon remittitur issuance, the trial court is to exercise its discretion and determine the amount of reasonable and necessary attorney fees and costs payable to the judgment creditor.

The present case has a complexity to it not normally found in civil appeals. At issue is a motion for attorney fees and costs filed in the trial court. The attorney fees…