Vincent v. Sonkey

Filed 12/29/20
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
MARTHA VINCENT, 2d Civ. No. B293251
(Super. Ct. No. 56-2017-
Plaintiff and Appellant, 00494659-CU-OR-VTA)
(Ventura County)
v.
REPRUDENTIA SONKEY
et al.,
Defendants and
Respondents.
When a plaintiff requests entry of judgment by default, a
request for attorney fees must be made at the same time or the
fees are forfeited. (Garcia v. Politis (2011) 192 Cal.App.4th 1474,
1479.) But attorney fees are not forfeited absent such request
when defendant contests a default judgment.
Plaintiff Martha Vincent appeals an order denying her
motion for attorney fees in her lawsuit against defendants
Reprudentia Sonkey and Whitenicious, Inc. (collectively
“Sonkey”). We conclude, among other things, that Vincent was
not entitled to attorney fees incurred for the period before she
obtained the default judgment against the defendants because
she did not include a request for fees at the time the default
judgment was entered. But the trial court erred by denying
attorney fees for Vincent’s successful post-judgment efforts to
respond to and defeat Sonkey’s motions to vacate the default
judgment. We reverse and remand.
FACTS
Vincent filed and served a summons and complaint for her
breach of contract lawsuit against Sonkey. She alleged “Sonkey
and Whitenicious are alter egos of one another.” Sonkey
breached the contract (a written lease) by, among other things,
failing to pay rent. The lease contained an attorney fee provision
for the prevailing party.
Sonkey did not file an answer to the complaint. Vincent
obtained a default judgment in her favor for $123,463. Vincent
did not request attorney fees.
Sonkey filed a motion to set aside the default judgment.
The motion was based on facts Sonkey stated in an attached
declaration. She claimed, among other things, that there was a
“lack of actual notice in time to defend the action.” (Emphasis
deleted.) Vincent filed an opposition to the motion.
The trial court granted Sonkey’s motion. On May 3, 2018,
she filed an answer to the complaint.
Vincent filed a motion for reconsideration of the trial
court’s decision to set aside the default judgment. Sonkey filed
an opposition.
On July 7, 2018, the trial court granted Vincent’s motion
for reconsideration. The court found Vincent had presented new
evidence that called into question facts stated in Reprudentia
Sonkey’s declaration. It said, “Upon reconsideration, the court
strikes Ms. Sonkey’s declaration based on her lack of
2.
veracity . . . .” (Italics added.) The court reinstated the default
judgment and struck Sonkey’s answer.
On July 20, 2018, Sonkey filed a motion for reconsideration
of the trial court’s July 7th order. She claimed there were “new
or different facts and circumstances” that required the default
judgment to be vacated.
In August 2018, Vincent filed an opposition to Sonkey’s
motion.
The trial court denied Sonkey’s motion for reconsideration.
It said, “The Court lacks jurisdiction to grant the motion because
Defendants fail to present any new or different facts,
circumstances, or law, and a satisfactory explanation for the
failure . . . to produce that evidence at an earlier time, as
required in support of a motion for reconsideration.”
Vincent’s Attorney Fee Motion
On August 20, 2018, Vincent filed an attorney fee motion
seeking “legal fees of a least $40,000.” She noted that the lease
which formed the basis for this lawsuit had an attorney fee
provision for the prevailing party. It provided, in relevant part,
“In any action or proceeding arising out of this Agreement, the
prevailing party between Landlord and Tenant shall be entitled
to reasonable attorney fees . . . .” Vincent contended that because
she had prevailed, she was entitled to attorney fees under Civil
Code section 1717.1 She said her attorney fees were necessarily
“incurred largely to defend the relentless defense efforts to undue
a legitimate default judgment.”
Sonkey filed an opposition claiming that “attorney fees
under section 1717 must be reasonable” and that Vincent “has
1 All statutory references are to the Civil Code.
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not established the reasonableness of the fees requested.”
(Emphasis deleted.)
The trial court denied the motion for attorney fees. Relying
on Garcia v. Politis, supra, 192 Cal.App.4th at page 1479, it said,
“[A] party seeking entry of a default judgment must apply for all
of the relief sought–including attorney fees–when application is
made for entry of default.” The court noted that Vincent had not
sought attorney fees when she filed for a default judgment. It
ruled that omission barred her attempt to obtain compensation
for any post-default judgment attorney fees incurred in defending
the judgment in response to Sonkey’s motions.
DISCUSSION
The Right to Post-Default Judgment Attorney Fees
Vincent contends the trial court erred by denying her claim
for post-default judgment attorney fees. She contends that given
the facts of this case, “fees incurred to defend a default judgment
from multiple attacks in the trial court” are not barred simply
because “the default judgment did not include an award of fees.”
We agree.
In Garcia v. Politis, supra, 192 Cal.App.4th at page 1480,
the court said, “[A] plaintiff seeking an award of attorney fees
from a defaulting defendant must request those fees at the time
the plaintiff requests entry of default.” This rule is based on a
principle of fairness for the defaulting defendant. A post-default
motion for fees would be unfair “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.” (Id. at p. 1479, italics added.) This is
a proper rule for a default case.
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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.
Relying on Garcia v. Politis, the trial court ruled Vincent
forfeited the right to post-judgment attorney fees by not seeking
fees at the time of the default judgment. But Garcia v. Politis
involved forfeiture in the context of a default proceeding. It did
not involve a fully contested post-judgment case. There is no
statutory authority to impose a forfeiture here. “Forfeitures are
not favored in the law.” (Cuevas v. Superior Court (2013) 221
Cal.App.4th 1312, 1327.) The forfeiture here barred Vincent from
her statutory right under section 1717 to seek attorney fees for
ultimately prevailing post-default judgment on her contract cause
of action. (§ 1717; Frog Creek Partners, LLC v. Vance Brown, Inc.
(2012) 206 Cal.App.4th 515, 523; Jones v. Drain (1983) 149
Cal.App.3d 484, 486 [party who prevails on a breach of contract
action is entitled to attorney fees based on an attorney fee
provision in the contract].)
Vincent could have reasonably decided to forfeit attorney
fees for the small amount of time it took her attorney to file the
complaint and take a default. 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-
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judgment. 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.
DISPOSITION
The order is reversed and the case is remanded to the trial
court for further proceedings consistent with this opinion. Costs
on appeal are awarded to appellant.
CERTIFIED FOR PUBLICATION.
GILBERT, P. J.
We concur:
PERREN, J.
TANGEMAN, J.
6.
Kent M. Kellegrew, Judge
Superior Court County of Ventura
______________________________
Barry E. Cohen, A Professional Corporation, Barry E.
Cohen for Plaintiff and Appellant.
No appearance for Defendants and Respondents.
7.