Timing and Fees on Default

Vincent v. Sonkey, No. B293251 (D2d6 Dec. 29, 2020) 

Plaintiff got a default judgment for $123k. Although the underlying contact had a fee provision, Plaintiff didn’t request fees as part of the default. Defendant moved for relief from default, which was granted, but then reversed on reconsideration after it was shown that Defendant’s declaration not entirely candid. 

Plaintiff then filed a motion for attorneys’ fees. Relying on the rule that attorneys’ fees need to be requested with, and awarded in, a default judgment, the trial court denied the motion.

The Court of Appeal agrees, halfway. The fees for work done prior to the default judgment needed to be addressed in the default judgment. But for period during which Defendant was relieved from the default, this was a real live contested case, for which the prevailing party was entitled to fees under the parties’ contract. And since there was no way for Plaintiff to seek those fees in her original motion for default judgment, it would be an unfair forfeiture to preclude her from recovering them after they were incurred.

Reversed in part.