Miller v. Givens

Opinion

GILBERT, J.

At the time the instant judgment was entered Code of Civil Procedure section

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685.040 did not allow attorney fees incurred in enforcing a judgment to be included as costs. The section was later amended to allow such fees where the underlying judgment includes an award of attorney fees arising from contract.

Here we hold that an award of attorney fees incurred after the date of the amendment does not constitute a retroactive application of the amended statute to the previously existing judgment. We reverse the order granting the judgment debtor’s motion to tax costs.

Facts

Scott G. Miller sued Arlene and Louis Buchignani and Ronald Levy on an agreement containing an attorney fees clause. The Buchignanis and Levy prevailed at trial, and judgment was entered in their favor for costs and attorney fees totaling $31,405.85 in July of 1989.

The Buchignanis assigned all of their right, title and interest in the judgment to Charles J. Givens in November of 1992.

On September 1, 1993, Givens filed a memorandum of costs seeking, among other items, postjudgment attorney fees in the amount of $20,000. Miller responded with a motion to tax costs. (§ 685.070, subd. (c).) The motion challenged Givens’s claim to postjudgment attorney fees on the grounds that the amount was excessive and that at the time the judgment was entered section 685.040 did not allow for such fees. Givens countered that section 685.040 was amended to allow for postjudgment attorney fees and that all of the claimed fees were earned after the amendment.

The trial court determined that an award of postjudgment attorney fees would require an impermissible retroactive application of the amendment to section 685.040. The trial court granted Miller’s motion.

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Discussion

In 1989, at the time the judgment was entered, section 685.040 provided: “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.”