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Thomas Nash and Bo O’Connor sued Ninon Aprea for
breach of contract in connection with their rental of Aprea’s
home. Aprea failed to file an answer, and the trial court entered
a default judgment for $59,191. The judgment included $1,000 in
attorneys’ fees pursuant to a provision in the parties’ lease
agreement authorizing attorneys’ fees to the prevailing party not
to exceed $1,000. Aprea appealed, and we affirmed. (Nash v.
Aprea (Mar. 13, 2023, No. B319309) [nonpub. opn.].)
While the appeal was pending, the trial court granted in
part Nash and O’Connor’s motion under Code of Civil Procedure1
section 685.080, subdivision (a), for an order allowing their costs
of enforcing the judgment. The court awarded $27,721 in
attorneys’ fees under section 685.040, which allows as an award
of costs attorneys’ fees incurred in enforcing a judgment “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 Section 1033.5.”
Section 1033.5, subdivision (a)(10)(A), in turn, provides that
attorneys’ fees may be awarded as costs where authorized by
contract.
In this appeal, Aprea contends the trial court erred in
awarding over $1,000 in attorneys’ fees for enforcing the
judgment because the lease authorized attorneys’ fees “not to
exceed $1,000.” However, once the judgment was entered, the
terms of the lease, including the $1,000 limitation on fees, were
merged into and extinguished by the judgment. Because the
judgment included an award of attorneys’ fees authorized by