Enforcement of Judgment: Attorney Fees as Costs, Privity Not Required

  Code of Civil Procedure section 685.040 authorizes the court to award a judgment creditor attorney fees incurred in enforcing a judgment if the underlying judgment included an award of fees as costs.

  Specifically, section 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 pursuant to subparagraph (A) of paragraph (10) of subdivision (a) of [Code of Civil Procedure] Section 1033.5.” That subparagraph of section 1033.5 provides that attorney’s fees may be recovered as costs when authorized by contract.

  Does section 685.040 support an award of fees as costs against a party who conspires to help a judgment debtor evade efforts to enforce a judgment that includes a contractual fee award? Stated another way: Are nonparties to an underlying judgment included within the reach of section 685.040 when an independent action on the judgment under the Uniform Fraudulent Transfer Act is required to enforce it?

  The court considered these questions in Cardinale v. Miller and determined an award of attorney’s fees as costs is appropriate under such circumstances since section 685.040 is not limited by its terms to parties to the underlying judgment. The statute is broad enough to encompass fees expended to enforce a judgment against third parties who conspired with the judgment debtor to evade its enforcement. It imposes just two requirements before a motion for an award of postjudgment attorney fees may be awarded as costs: (1) the fees must have been incurred to enforce a judgment; and (2) the underlying judgment had to include an award for attorney fees pursuant to Code of Civil Procedure section 1033.5, subdivision (a)(10)(A).

  Lack of privity is not a bar. The award of postjudgment attorney fees is not based on the survival of the contract, but is instead based on the award of attorney fees and costs in the trial judgment, i.e.,  postjudgment rights are governed by the rights in the judgment and not by any rights arising from the contract. Therefore, strangers to the contract in the underlying action are not immunized from liability for attorney’s fees as costs under section 685.040.


   Mr. Daymude consults with clients and accepts cases involving the enforcement of judgments, including those which may require an independent action against the debtor or third parties. For other types of cases accepted, please scroll the Home and My Practice pages. If you are seeking a legal consultation or representation, call Michael Daymude at 818-971-9409.

Jump to top