Garcia v. Politis, B224453.

• Court: California Court of Appeals
• Writing for the Court: WILLHITE
• Citation: 122 Cal.Rptr.3d 476,2011 Daily Journal D.A.R. 3,192 Cal.App.4th 1474,11 Cal. Daily Op. Serv. 2543
• Parties: Alfredo GARCIA, Plaintiff and Appellant, v. Sofia POLITIS, as Trustee, etc., Defendant and Respondent.
• Docket Number: No. B224453.,B224453.
• Decision Date: 25 February 2011

192 Cal.App.4th 1474
122 Cal.Rptr.3d 476
11 Cal. Daily Op. Serv. 2543
2011 Daily Journal D.A.R. 3048

Alfredo GARCIA, Plaintiff and Appellant,
v.
Sofia POLITIS, as Trustee, etc., Defendant and Respondent.

No. B224453.

Court of Appeal, Second District, Division 4, California.

Feb. 25, 2011.

**477 Morse Mehrban, for Plaintiff and Appellant.

No appearance for Defendant and Respondent.

WILLHITE, J.

*1476 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 *1477 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 3.1800.¹ 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 **478 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.

*1478 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...