Wednesday, April 8, 2015

Anti-SLAPP Victor Can Collect Fees for Collecting

York v. Strong, No. G049778 (D4d3 Mar. 10, 2014)

Plaintiff who prevailed on an anti-SLAPP motion in a prior case won an attorneys' fee award. She then incurred more fees in collecting on it.  Under Code of Civil Procedure § 685.040, fees incurred in collection are awardable if the underlying judgment includes an award of fees when they are included as costs.  

The statute specifically references that that is the case when fees are awarded under § 1033.5(a)(10)(A), which permits an award of fees as costs when permitted by contract. But fees awarded in an anti-SLAPP victory are awarded as costs under § 1033.5(a)(10)(B) or (C)—as authorized by statute or law.  But the reference to § 1033.5(a)(10)(A) was not intended to limit an award of fees as costs on collection. It was specifically added to legislatively reverse an earlier case holding that a judgment that included an award of fees based on a contract—awardable under § 1033.5(a)(10)(A)—did not merit an award of fees incurred in collection. In any event, the Supreme Court essentially already decided this issue in Ketchum v. Moses, 24 Cal. 4th 1122, 1141 n.6 (2001) so there was no reason to go the other way.

Reversed.

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