Filed 5/23/22 Johnson v. Adir Restaurants Corp. CA2/3

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

ALEXANDER JOHNSON,

Plaintiff and Appellant,

v.

ADIR RESTAURANTS CORP.,

Defendant and Respondent.

B309661

Los Angeles County

Super. Ct. No. BC449606

APPEAL from a postjudgment order of the Superior Court 

of Los Angeles County, Rupert A. Byrdsong, Judge. Affirmed.

Morse Mehrban for Plaintiff and Appellant.

Schwartz Law Center and Matthew H. Schwartz for

Defendant and Respondent.

_________________________
2

Alexander Johnson appeals from the trial court’s 

November 16, 2020 order that: vacated a judgment entered 

on July 2, 2020 awarding Johnson $1,000 in statutory damages 

and $12,476.66 in attorney fees against Adir Restaurants Corp. 

(Adir) and retroactively assessing postjudgment interest, costs, 

and attorney fees from 2012—when the court first ordered 

Johnson was entitled to those damages and fees; denied 

Johnson’s memorandum of costs claiming postjudgment attorney 

fees; and ordered a new judgment to be entered in the amount 

of $13,476.66 alone, with no interest to accrue on that amount 

before the date of the new judgment’s entry. Finding Johnson 

has failed to demonstrate error, we affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND

In November 2010, Johnson, who is hearing impaired,

sued Adir for statutory damages and injunctive relief under

the Unruh Civil Rights Act (Civil Code section 51 et seq.).

Johnson alleged Adir refused to allow his service animal 

to accompany him into Adir’s restaurant in violation of the 

Americans with Disabilities Act of 1990. On February 29, 2012, 

the parties stipulated to the facts alleged in the complaint and

that Johnson was entitled to statutory damages—as there were 

no actual damages. The parties disputed the applicable measure 

of statutory damages, however, and asked the trial court for 

a hearing on that issue. The court continued the trial date 

to March 28, 2012, and set a hearing for that date to determine 

the proper amount of statutory damages to award Johnson:

$4,000 under the Unruh Civil Rights Act or $1,000 under the 

Disabled Persons Act (Civil Code section 54 et seq.). (Civ. Code, 

§ 52, subd. (a); § 54.3, subd. (a).)

On April 10, 2012, the court (Hon. Holly E. Kendig) filed 

a signed, written ruling concluding the Disabled Persons Act 

controlled. The court ordered: “Plaintiff shall recover $1,000 
3

in statutory minimum damages under Civil Code section 54.3.”

The court directed the clerk to give notice of its ruling on 

statutory damages to the parties, which it did.

Two months later, Johnson moved for attorney fees on the 

ground judgment had been entered in his favor against Adir and 

both the Unruh Civil Rights Act and the Disabled Persons Act

entitle a prevailing plaintiff to attorney fees. Adir opposed the 

motion on various grounds.

The matter was reassigned to another department in 

August 2012. On December 10, 2012, the court (Hon. Yvette M. 

Palazuelos) filed its written ruling and order granting Johnson’s 

earlier-submitted motion for attorney fees—as the prevailing 

party under the Disabled Persons Act—and ordered Adir to pay 

Johnson $12,476.66 in attorney fees. The clerk gave notice to 

Johnson who in turn filed and served Adir with a notice of entry 

of judgment or order. On January 3, 2013, the court advanced 

and vacated all future hearing dates in the matter based on 

the April 10, 2012 ruling on statutory damages.

On June 5, 2020, Johnson’s counsel attempted to file 

a renewal of judgment. The clerk rejected it, noting, “The 

4-10-12 order awarding statutory damages is not a judgment. 

The 12-7-12 entry for atty fees is not inserted into a judgment. 

Cannot be renewed.” (Internal capitalization and punctuation 

omitted.)

In response, Johnson’s counsel apparently submitted a 

proposed judgment to the court on June 9, 2020. The attached 

declaration of mailing, which requires the declarant to sign 

under penalty of perjury, states Johnson’s attorney served the 

proposed judgment by mailing it directly to Adir. Johnson’s 

attorney did not sign the declaration of mailing. On July 2, 2020, 

the court (Hon. Rupert A. Byrdsong) signed and filed the 

proposed judgment prepared by Johnson’s counsel. It provides: 
4

“On April 10, 2012, the Court ruled that

. . . Johnson . . . is entitled to recover $1,000.00

in damages from Adir . . . . On December 7, 

2012, the Court ruled that [Johnson] is entitled 

to recover $12,476.66 in attorney fees from 

[Adir]. Judgment reflecting said awards not 

having been entered, the Court now enters 

judgment for . . . Johnson and against . . . 

Adir . . . . [Adir] must pay [Johnson] on the 

complaint $13,476.66. Post-judgment interest, 

costs, and attorney fees are assessed from 

April 10, 2012 for the damage award and 

December 7, 2012 for the attorney fee award.”

That same day the clerk filed a notice of entry of judgment 

reflecting judgment had been entered in the matter on 

July 2, 2020. The clerk mailed the notice to counsel.

Johnson’s counsel then filed, on July 8, 2020, an application 

for and renewal of judgment totaling $24,765.18. That total 

included the $13,476.66 judgment, $950 in postjudgment costs—

consisting of attorney fees incurred between September 1, 2018,

and July 8, 2020; and $10,293.52 in postjudgment interest. 

Counsel simultaneously filed a memorandum of costs after 

judgment, claiming the $950 in attorney fees and declaring the

$10,293.52 in interest remained due. According to the proof of 

service, Johnson’s counsel mailed the memorandum of costs and 

declaration of accrued interest directly to Adir that same day.

On July 31, 2020, Adir, through its counsel, filed a motion 

to vacate the judgment entered on July 2, 2020, under Code of 

Civil Procedure1 section 663 and/or section 473, and to tax costs.

1 Subsequent statutory references are to the Code of Civil 

Procedure unless otherwise indicated.
5

Adir argued Johnson failed to give it notice of the proposed 

judgment depriving Adir of the opportunity to object to it; the 

judgment erroneously assessed almost eight years’ worth of 

purported postjudgment interest for a period that had elapsed 

before judgment was entered; and the judgment erroneously 

authorized Johnson to recover postjudgment attorney fees.

In response, Johnson argued Adir was not entitled to 

relief under either statute for procedural reasons. Substantively, 

Johnson contended the statutory damages award was a final 

judgment that the court clerk had failed to enter. Thus, the

trial court had inherent power to enter the “[f]ormal” judgment

to relate back to the April 10, 2012 ruling, entitling Johnson to 

postjudgment interest from the dates the court made its original 

damages and fee awards. Johnson also argued he was entitled 

to recover postjudgment attorney fees incurred after the court 

rendered its initial judgment in April 2012.

The court heard argument from counsel on November 16, 

2020. The reporter’s transcript of the hearing is not part of 

the appellate record. That same day, the court filed its written 

order granting Adir’s motion. The court vacated the July 2, 2020 

judgment and ordered a new judgment to be entered in the 

amount of $13,476.66 with no interest to be deemed to have 

accrued on that amount before the entry date of the new 

judgment. The court also denied Johnson’s memorandum 

of costs with prejudice. Johnson appealed.

DISCUSSION

Johnson challenges the entirety of the trial court’s

November 16, 2020 order granting Adir’s motion to vacate

judgment and to tax costs. As we noted, the appellate record 

does not include a reporter’s transcript of the hearing on Adir’s 

motion. We reiterate the well-known appellate principle that

a judgment or order challenged on appeal is presumed correct,
6

and the appellant bears the burden to demonstrate error 

affirmatively. (Denham v. Superior Court (1970) 2 Cal.3d 557, 

564.) In the absence of a reporter’s transcript “ ‘[w]e must 

therefore presume that what occurred at that hearing 

supports the judgment.’ ” (In re Marriage of Obrecht (2016) 

245 Cal.App.4th 1, 9 (Obrecht); see also State Farm Fire 

& Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 610 

[presuming order denying motion for relief under § 473 

“based on any rationale supported by the record” in the 

absence of a reporter’s transcript].)

1. The court did not err when it vacated the July 2, 2020 

judgment

Adir moved to vacate the July 2, 2020 judgment under 

section 663 and/or section 473.2 Johnson contends the trial court 

had no jurisdiction to grant Adir’s motion under section 663 

because it did not file and serve a notice of intent to vacate 

the judgment within the statutorily-required 15 days from 

the service of notice of entry of judgment (§ 663a, subd. (a)), 

and the trial court did not rule on the motion within 75 days 

from the mailing of the notice of entry of judgment (§ 683a, 

subd. (b)). Johnson also contends Adir could not use section 473 

2 Under section 663, upon a party’s motion, a court may 

set aside and vacate a judgment if an incorrect or erroneous 

basis for the decision exists. Under section 473, subdivision 

(a)(1), a trial court has discretion to “allow a party to amend 

any pleading or proceeding . . . by correcting . . . a mistake[;] 

. . . [and] allow . . . an amendment to any pleading or proceeding 

in other particulars.” A court may “relieve a party . . . from 

a judgment . . . taken against him or her through his or her 

mistake, inadvertence, surprise, or excusable neglect,” under 

section 473, subdivision (b). And, a court may set aside a 

void judgment under section 473, subdivision (d).
7

to extend those jurisdictional deadlines, citing Advanced Building 

Maintenance v. State Comp. Ins. Fund (1996) 49 Cal.App.4th

1388, 1394 (holding § 473 does not apply to extend the time limits 

under § 663a for filing a motion to vacate judgment under § 663).

True, Adir did not file its motion to vacate judgment 

within 15 days of the July 2, 2020 notice of entry of judgment, 

and the trial court did not rule on the motion until November

2020. Nevertheless, as it did in the trial court, Adir argues

the court had inherent authority to grant it equitable relief 

from the judgment—regardless of any statutory deadline—

upon its showing that the judgment was obtained through 

extrinsic fraud.3 In the absence of a reporter’s transcript, we 

presume the trial court granted Adir’s motion on this ground.4 

“A ruling on a motion to vacate a judgment rests in the sound 

discretion of the trial court. [Citation.] We will not reverse 

the exercise of such discretion except when there is clear abuse.”

(State of Arizona ex rel. Arizona Dept. of Revenue v. Yuen (2009) 

179 Cal.App.4th 169, 178.)

“A motion to vacate a judgment for extrinsic fraud is not

governed by any statutory time limit, but rather is addressed 

3 Adir made this argument in its reply brief supporting its 

motion to vacate. Johnson does not appear to argue the court 

erred in granting Adir’s motion on this ground, other than to 

assert he properly served Adir. He thus has forfeited any claimed 

error on this point. (See Badie v. Bank of America (1998) 67 

Cal.App.4th 779, 784–785 [“When an appellant fails to raise a 

point, or asserts it but fails to support it with reasoned argument 

and citations to authority, we treat the point as [forfeited].”].)

4 The court, in its minute order, stated it considered all the 

documents filed and argument of counsel. It granted the motion 

on the grounds set forth in the moving papers, which we presume 

included Adir’s reply brief.
8

to the court's ‘ “ ‘inherent equity power’ ” ’ to grant relief from 

a judgment procured by extrinsic fraud.” (Department of 

Industrial Relations v. Davis Moreno Construction, Inc. (2011) 

193 Cal.App.4th 560, 570.) “ ‘Extrinsic fraud occurs when 

a party is deprived of the opportunity to present his claim or 

defense to the court; where he was kept ignorant or, other than 

from his own negligence, fraudulently prevented from fully 

participating in the proceeding.’ ” (Ibid.) A party’s failure to 

give notice to the other party is an example of extrinsic fraud. 

(Ibid.) In essence, extrinsic fraud exists where one party 

prevents the other party “ ‘from having his day in court.’ ” (Ibid.)

We presume the trial court found credible Adir’s attorney’s 

declaration that neither he nor his client was served with the 

proposed judgment, and found Johnson’s attorney’s unsigned 

declaration of mailing inadequate to prove he served Adir with

the proposed judgment. That evidence was sufficient for the 

trial court to find the July 2, 2020 judgment was obtained 

through extrinsic fraud: by failing to serve Adir and/or its 

counsel with the proposed judgment,5 Johnson deprived Adir

of the opportunity to object to the proposed judgment before 

the court entered it as the judgment on July 2, 2020. 

5 Johnson contends he was not required to serve the 

proposed judgment on Adir’s counsel because it related to 

the enforcement of his judgment. (See § 684.020, subd. (a) 

[service of documents required under enforcement of judgment 

laws to be served on judgment debtor instead of counsel].) Adir 

contends there was no judgment to enforce at that time; thus, 

Johnson was required to serve Adir’s counsel. (See, e.g., Cal. 

Rules of Court, rule 1.21 [when a document is required to be 

served on a party, service must be made on represented party’s 

attorney].) We need not resolve this issue as the trial court 

reasonably could have found Johnson served neither Adir

nor its counsel with the proposed judgment.
9

Accordingly, we conclude the court had authority to vacate

the July 2, 2020 judgment and did not abuse its discretion in 

doing so. In any event, Johnson “had an affirmative obligation 

to provide an adequate record so that we could assess whether 

the court abused its discretion.” (Wagner v. Wagner (2008) 162 

Cal.App.4th 249, 259.) Because the appellate record does not 

include a reporter’s transcript of the hearing on Adir’s motion 

to vacate, Johnson has forfeited his argument that the trial 

court abused its discretion in granting the motion. (Ibid.

[“The absence of a record concerning what actually occurred 

at the hearing precludes a determination that the court abused 

its discretion.”].)

Having concluded the trial court did not err in vacating 

the July 2, 2020 judgment, we consider whether Johnson was 

entitled to the accrual of postjudgment interest from April 2012

and to his claimed postjudgment attorney fees.

2. The court did not err when it did not make the 

accrual of interest retroactive to 2012

Johnson contends that, because the April 2012 order 

awarding him statutory damages was in effect a final judgment, 

he was entitled to recover postjudgment interest from that date.6

The date from which interest should run on a judgment is a

question of law that we review de novo. (Chodos v. Borman

(2015) 239 Cal.App.4th 707, 712.)

We agree the April 10, 2012 order can be described as a

“final determination of the rights of the parties” in this action. 

6 Johnson also contends he was entitled to interest on his 

attorney fee award because that award is deemed incorporated

into the judgment. Our conclusion that Johnson was not entitled 

as a matter of law to retroactive postjudgment interest applies 

to both his damages and attorney fees awards.
10

(§ 577.) The order adjudicated the only issue left for the court 

to decide on Johnson’s complaint—the amount of statutory 

damages Adir owed. Although the issue of attorney fees 

remained, an award of costs and attorney fees to a prevailing 

party does not affect the legal basis of the earlier-rendered

judgment. (See, e.g., See Torres v. City of San Diego (2007) 

154 Cal.App.4th 214, 222–223 (Torres) [disputed legal basis 

for attorney fee award had nothing to do with propriety of 

underlying judgment].) Indeed, “ ‘[w]hen a party wishes 

to challenge both a final judgment and a postjudgment costs/

attorney fee order, the normal procedure is to file two separate 

appeals: one from the final judgment, and a second from the 

postjudgment order.’ ” (Id. at p. 222, italics omitted.)

But, postjudgment interest does not accrue upon the 

rendition of a judgment. The statute is clear. “[I]nterest 

commences to accrue on a money judgment on the date of entry

of the judgment.” (§ 685.020, subd. (a), italics added.) As the

Court of Appeal explained long ago, “[t]he code recognizes that 

the ‘rendition’ of a judgment and its ‘entry’ are different stages 

which operate as initial points from which other acts may 

be begun or other rights acquired. [Citation.] Thus the right 

to issue execution attaches from the time of the entry of the 

judgment [citation]; but an appeal is effective if taken at any time 

after the rendition of the judgment but not later than sixty days 

after its entry.” (Brown v. Superior Court (1925) 70 Cal.App. 732, 

734–735.) Accordingly, although the court may effectively have

rendered its judgment on Johnson’s complaint through its April 

2012 order, no interest could begin to accrue on the monetary 

award in that order until judgment was in fact entered.

Here, the judgment was not entered until July 2, 2020, but

provided for interest to be assessed from the dates of the original 

orders in 2012. As Johnson asserts—and Adir does not dispute—
11

a court has inherent authority to enter judgment nunc pro tunc—

to relate it “back to the time when it should have been entered.” 

(Norton v. City of Pomona (1935) 5 Cal.2d 54, 62 (Norton).) A 

court should grant or refuse to enter a nunc pro tunc judgment 

“as justice may require in view of the circumstances of a 

particular case.” (Ibid.) The court apparently exercised that 

authority when it entered the July 2, 2020 judgment prepared 

by Johnson but—after hearing Adir’s motion to vacate—

determined entry of judgment nunc pro tunc was not appropriate

under the circumstances. We find no abuse of discretion. 

The case law is clear that a court may enter judgment 

retroactively to the date when it should have been entered, 

“provid[ed] the delay is not occasioned by the party applying” 

for entry nunc pro tunc. (Norton, supra, 5 Cal.2d at p. 62, 

italics added; see also 7 Witkin, Cal. Procedure (6th ed. 2021) 

Judgment § 63 [“Where a judgment or order is rendered, but, 

through negligence or inadvertence of the clerk, is not entered 

at the proper time, the court may order its entry nunc pro tunc.”

(Italics added.)].) In other words, the court’s retroactive entry 

of a judgment “ ‘is an exercise of inherent power of the court, 

the object being to do justice to a litigant whose rights are 

threatened by a delay that is not the litigant’s fault. [Citations.]’ ” 

(In re Marriage of Padgett (2009) 172 Cal.App.4th 830, 851, 

italics added.)

In his opposition to Adir’s motion, Johnson argued that,

because the court clerk failed to enter judgment immediately 

following the court’s April 2012 damage award, as required 

under section 664, the court appropriately entered judgment 

to relate it back to the original award for purposes of the accrual 

of postjudgment interest, costs, and attorney fees. As Adir noted, 

section 664’s requirement that the clerk immediately enter 
12

judgment “in conformity to” the verdict or court’s decision, 

applies when there has been a jury or court trial. (§ 664.)

Here, the parties presented no evidence, and the trial court 

decided no factual issues, as usually would occur during a court 

trial. (§§ 631.7, 607 [order of proceedings]; § 632 [after trial of 

question of fact by court, if requested, court shall issue statement 

of decision explaining factual and legal basis for its decision].)

Rather, the court decided the proper statutory damages to 

award Johnson as a matter of law, based on the parties’ briefs 

and counsel’s argument. The court’s March 28, 2012 minute 

order bears the heading, “Jury Trial – Statutory Damages Only,” 

but then states the matter was “called for hearing.” On April 10,

2012, the court entered its written ruling finding the Disabled 

Persons Act controlled the amount of statutory damages 

available to Johnson and ordered, “Plaintiff shall recover $1,000 

in statutory minimum damages under Civil Code section 54.3.” 

The court’s minute order, bearing the heading, “Trial – Re: 

Statutory Damages Only,” reflects the court directed the clerk 

to give notice of the ruling to all parties.

Because there is no transcript of that hearing or the

hearing on Adir’s motion to vacate, we can presume the trial 

court agreed with Adir that its April 10, 2012 ruling was not a 

decision after a court trial, making section 664—and its direction 

that the clerk enter judgment—inapplicable. Rather, as Adir 

argued, the court’s ruling finding the Disabled Persons Act 

controlled the amount of statutory damages available was more 

akin to an order granting summary adjudication or judgment 

on a purely legal question. Yet, even if section 664 applied,

and the clerk should have entered judgment around April 2012, 

we cannot conclude the court was required to order interest on 

the judgment to accrue retroactively from that date as a matter 

of law. 
13

We must infer the trial court agreed with Adir (Obrecht, 

supra, 245 Cal.App.4th at pp. 8–9) and found the eight-year delay 

in entering judgment in this matter was owing at least partially, 

if not totally, to Johnson’s laches or negligence, making its 

retroactive entry inappropriate under the circumstances. (See, 

e.g., Young v. Gardner-Denver Co. (1966) 244 Cal.App.2d 915, 

918–920 [finding court did not abuse its discretion in refusing 

to correct clerical error nunc pro tunc where plaintiff’s attorney 

was aware of error but failed to seek a timely correction or 

indicate intent to apply for entry of judgment nunc pro tunc,

and retroactive entry would void court’s order granting defendant 

new trial].)

Until the judgment was entered, it could not be enforced.

(§ 664 [“In no case is a judgment effectual for any purpose 

until entered.”]; § 683.010 [“Except as otherwise provided by 

statute or in the judgment, a judgment is enforceable under 

[the Enforcement of Judgments Law] upon entry.”].) Allowing 

interest to accrue retroactively from 2012 when Johnson did 

not so much as inquire into the status of the judgment, much less

submit a proposed judgment or ask the court to direct the clerk 

to enter judgment, would result in a windfall to Johnson and 

prejudice Adir. Had Johnson acted diligently, however, judgment 

would have been entered long ago. Once entered, the judgment 

would have been enforceable, and the court reasonably could 

infer Adir would have satisfied it at that time. (See, e.g., Phillips 

v. Patterson (1939) 34 Cal.App.2d 481, 484 [a “party in whose 

favor a judgment has been rendered, is entitled to an execution 

immediately upon the entry of the judgment” (italics added)].)

Instead, Johnson allowed the matter to languish for eight years 

and then sought to tack over $10,000 in retroactive, accrued 

interest onto a $13,476.66 judgment.
14

Under these circumstances, we cannot say justice 

compelled the trial court to order the retroactive accrual 

of postjudgment interest on the money judgment from 2012.7 

(See Wells v. Coca Cola Bottling Company of Fresno (1956) 140 

Cal.App.2d 218, 222 [“ ‘a nunc pro tunc order should be granted 

or refused as justice may require, in view of the circumstances 

of the particular case’ ”]; Hess v. Gross (1943) 56 Cal.App.2d 529, 

532 [“ ‘where an order has actually been made and its entry 

omitted, . . . it may be subsequently entered, and if justice 

requires, may be made to take effect nunc pro tunc, as of the 

date when it was actually made’ ”]; see also Williamson v. Plant 

Insulation Co. (1994) 23 Cal.App.4th 1406, 1415 [where delay 

in rendering or entering judgment “ ‘ “arises from the act of the 

court—that is, where the delay has been caused either for its 

convenience, or by the multiplicity or press of business, through 

the intricacy of the questions involved, or of any other cause 

not attributable to the laches of the parties—the judgment or 

the decree may be entered retrospectively as of a time when 

it should or might have been entered” ’ ” (italics added)].)

3. The court did not err in denying Johnson attorney 

fees claimed as postjudgment costs

We independently determine the legal basis for an award 

of attorney fees (Torres, supra, 154 Cal.App.4th at p. 224), but

review a trial court’s determination of the reasonableness of 

attorney fees for abuse of discretion (PLCM Group, Inc. v. Drexler

(2000) 22 Cal.4th 1084, 1096). A party moving for statutory 

attorney fees bears the burden of proof. (Corbett v. Hayward 

Dodge, Inc. (2004) 119 Cal.App.4th 915, 926.)

7 For the same reasons, the court’s disallowance of 

retroactive postjudgment costs from 2012 was not in error.
15

Section 685.040 permits a judgment creditor to recover 

“the reasonable and necessary costs of enforcing a judgment.” 

Attorney fees are not included as postjudgment costs, “unless 

otherwise provided by law.”8 (Ibid.) Where a statute authorizes 

attorney fees—as is the case here—they have been “ ‘otherwise 

provided by law’ ” under section 685.040 and “may be recovered 

as costs if expended to enforce a judgment.” (Rosen v. 

LegacyQuest (2014) 225 Cal.App.4th 375, 382; Highland

Springs Conference & Training Center v. City of Banning (2019) 

42 Cal.App.5th 416, 424 (Highland); see also Civ. Code, § 54.3, 

subd. (a) [providing plaintiffs who prevail on claim for violating 

Disabled Persons Act are entitled to attorney fees].)9 A judgment 

creditor may claim postjudgment enforcement costs, including 

attorney fees, either by a memorandum of costs under section 

685.070, or by a noticed motion under section 685.080. 

(Highland, at p. 424.)

Johnson sought a total of $950 in attorney fees incurred 

from September 1, 2018 through July 8, 2020 by a memorandum 

of postjudgment costs under section 685.070. In opposition to 

Adir’s motion, Johnson’s attorney generally declared he spent 

8 Postjudgment enforcement attorney fees also are 

recoverable where the judgment includes an award of attorney 

fees under a contract. (§ 685.040; § 1033.5, subd. (a)(10)(A).)

9 In its motion, Adir erroneously argued section 685.040 

allowed for the recovery of postjudgment attorney fees only if 

the judgment included an award of attorney fees authorized by 

contract. We presume the court followed the law and did not 

grant Adir’s motion on this basis. (Collins v. City of Los Angeles

(2012) 205 Cal.App.4th 140, 153 [reviewing court presumes trial 

court “ ‘properly applied the law and acted within its discretion 

unless the appellant affirmatively shows otherwise’ ”].)
16

more than three hours “on post-judgment enforcement activities” 

during this 22-month time frame, including:

“communications with the Court; legal 

research; research into Defendant’s assets 

and income for collection purposes; preparation 

of legal documents related to renewal of the 

Damage Award and Fee Award, the PostJudgment Cost Memo, the Formal Judgment, 

and Plaintiff’s notice of change of address.”

To the extent Johnson’s cost memorandum sought fees 

incurred in obtaining entry of Johnson’s proposed judgment, 

it essentially sought fees expended to obtain the judgment, 

not to enforce it. (See, e.g., Highland, supra, 42 Cal.App.5th

at pp. 425–426 [attorney fees incurred to amend judgment to 

add an additional judgment debtor as the alter ego of the original 

judgment debtor were recoverable as prejudgment fees incurred 

to obtain judgment, not postjudgment enforcement fees under 

§ 685.040].) Those fees, therefore, were not recoverable under 

sections 685.040 and 685.070.10

Moreover, as we have discussed, because a judgment is 

not enforceable until entered, Johnson could not have incurred 

costs or attorney fees to enforce the judgment in this matter until 

July 2, 2020—the first date an enforceable judgment existed. 

(§ 683.010.) Johnson contends that, because section 680.230 

defines “judgment” as “a judgment, order, or decree entered 

10 As Adir asserts, to recover attorney fees incurred 

pre-judgment, Johnson had to file a noticed motion under 

California Rules of Court, rule 3.1702(b). (See Highland, supra, 

42 Cal.App.5th at pp. 422–423 [plaintiffs’ fee requests incurred 

in amending judgment to add alter-ego as judgment debtor

were governed by rule 3.1702(b)].)
17

in a court of this state,” the 2012 damages order constitutes 

an enforceable money judgment under the Enforcement 

of Judgments Law (EJL). He argues he thus was entitled 

to attorney fees incurred in enforcing the damages award.

But, “litigants do not have license to substitute the word 

‘order’ everywhere the word ‘judgment’ appears in the EJL, 

regardless of the circumstances or statutory intent. The 

ostensible purpose of the broad definition of ‘judgment’ in 

section 680.230 is to permit an order awarding fees to be 

enforced under the EJL where there is no judgment.” (Lucky 

United Properties Investment, Inc. v. Lee (2010) 185 Cal.App.4th 

125, 143–144.) As Johnson notes, and the court in Lucky gave 

by way of example, prejudgment orders for monetary sanctions 

are immediately enforceable under the EJL. (Ibid.) That makes 

sense. Because prejudgment monetary sanctions redress parties’ 

or their attorneys’ litigation conduct during the litigation, their 

payment is unrelated to the outcome of the case and usually 

intended to be paid at or near the time they are ordered. A party, 

therefore, need not wait for a judgment to be entered on the 

underlying action to enforce payment of ordered sanctions. 

(Newland v. Superior Court (1995) 40 Cal.App.4th 608, 615 

[explaining terminating sanctions unnecessary to enforce 

payment of monetary sanctions as they “have the force and 

effect of a money judgment, and are immediately enforceable 

through execution”].)

Here, in contrast, the court’s order awarding statutory

damages on the complaint was capable of being entered as a 

judgment had Johnson submitted a proposed judgment or asked 

the court to direct the clerk to enter judgment. Nor did the ruling 

order the damages immediately payable. If the court’s ruling on 

statutory damages were immediately enforceable under the EJL, 

as Johnson essentially contends, then under that same logic
18

no court would need to enter a judgment after issuing a written 

ruling following a court trial. That clearly is not the case. 

(See, e.g., Phillips v. Phillips (1953) 41 Cal.2d 869, 873–874 

[trial court’s signed memorandum, containing findings of fact 

and conclusions of law, filed with the clerk and entered in 

the minutes, met “requirements for rendition of a judgment,” 

but was not “the judgment” (italics added)]; In re Marriage of 

Micalizio (1988) 199 Cal.App.3d 662, 666, 672 [“Ruling After 

Court Trial” that was filed, but not entered into the judgment 

book, “was not a judgment” and “not effectual for any purpose, 

and at any time” before entered].)

Moreover, we can infer the trial court found Johnson failed 

to meet his burden to show the attorney fees he incurred were 

necessary to enforce the judgment and/or reasonable. Johnson’s 

counsel’s declaration does not state when exactly during the 

22-month period he performed the various tasks he describes 

as enforcement activities, or how much time he spent on 

each activity. The trial court, therefore, was left to guess at 

how much time counsel spent on true enforcement activities 

(and what those activities were exactly) from July 2, 2020,

to July 8, 2020, when determining whether the fees incurred 

were necessary and reasonable.11 

Johnson, therefore, has not demonstrated the court erred 

in denying the entirety of his memorandum of costs.

11 For the same reasons, even if the attorney fees Johnson 

incurred before July 2, 2020 could be construed as enforcement 

costs, the trial court reasonably could have found Johnson failed 

to meet his burden of proof. We can infer the trial court found 

Johnson’s claimed fees unreasonable and/or unnecessary—and 

therefore unrecoverable—given the futility in seeking to renew 

a judgment that had not been entered, as well as unnecessarily 

incurred due to Johnson’s delay.
19

DISPOSITION

The November 16, 2020 order is affirmed. The parties shall 

bear their own costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

EGERTON, J.

We concur:

EDMON, P.J.

LAVIN, J.