10
by paragraph 36 of the Lease.” Accordingly, the trial court’s
award of $1,000 in attorneys’ fees in the default judgment was an
award of attorneys’ fees pursuant to section 1033.5,
subdivision (a)(10)(A).
Aprea contends that because section 1033.5,
subdivision (a)(10)(A), only allows attorneys’ fees when
authorized by contract, and the lease only authorized fees not to
exceed $1,000, this limited authorization was necessarily
incorporated into an award allowed in enforcement proceedings
pursuant to section 685.040. Apria’s argument has superficial
appeal: If Nash and O’Connor were authorized as prevailing
parties in the underlying action to recover only $1,000 in
attorneys’ fees pursuant to section 1033.5, subdivision (a)(10)(A),
why can they now recover almost 30 times as much as judgment
creditors in enforcing the judgment based on section 685.040,
which expressly references section 1033.5?
The answer lies in the statutory language—as discussed,
section 685.040 provides that attorneys’ fees are allowed “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.” Thus, there need only
be an award of contractually authorized fees to open the door to
recovery of postjudgment fees as enforcement costs. We decline
Aprea’s invitation to read into section 685.040 an additional
requirement that there not only be an award of attorneys’ fees in
the judgment “pursuant to” section 1033.5, subdivision (a)(10)(A)
(that is, the judgment awarded fees based on an attorneys’ fees
provision in a contract), but that any enforcement fees also be
expressly authorized by the underlying contract. (See McHugh v.
Protective Life Ins. Co. (2021) 12 Cal.5th 213, 227 [When