Existing law allows parties to an agreement to mutually agree to cap the amount of attorneys’ fees that can be awarded to the other in the event of litigation. However, there is now clearly a way to recover attorneys’ fees in excess of the amount stipulated in the parties’ contract.

The California Court of Appeals for the Second District, in Nash v. Aprea, published October 3, 2023, considered whether an award of post-judgment enforcement fees under California Code of Civil Procedure section 685.040 in excess of the contractual cap could be awarded to the plaintiff.

In Nash v. Aprea, the plaintiff obtained a default judgment against the defendant in the amount of $59,191.00 with $1,000.00 of the award for contractual attorneys’ fees because the contract capped recoverable attorneys’ fees at $1,000.00. Thereafter, the lower court awarded plaintiff an additional $27,721 in post-judgment enforcement fees under Section 685.040. The defendant appealed the additional award.

The Court of Appeal upheld the award. It reasoned post-judgment enforcement attorneys’ fees under Section 685.040 are a matter of right so long as the underlying judgment had a fee award.

Even if your contract has a cap on reasonable attorneys’ fees, it is prudent to contact an attorney to help you resolve the matter before any post-judgment enforcement takes place. Otherwise, recoverable attorneys’ fees can quickly exceed the cap set forth in the contract.

The information presented is not intended to be, and does not constitute, “legal advice.” Because each situation varies, and only brief summary information is provided here, you should not use this information as a basis for action unless you have independently verified with your own counsel that it applies to your particular situation.