Judge Cherol J. Nellon, Case Number: 21STCV30981, Date: 2023-12-06 Tentative Ruling

Judge: Cherol J. Nellon, Case: 21STCV30981, Date: 2023-12-06 Tentative Ruling

Case Number: 21STCV30981 Hearing Date: December 6, 2023 Dept: 14

Instant Motion

Plaintiff now moves this court for an order taxing the request for attorney’s fees included in the Memorandum of Costs.

Decision

The motion is GRANTED, without prejudice to a formal motion for attorney’s fees.

Governing Statute

Code of Civil Procedure § 1033.5 provides in relevant part as follows:

“(a) The following items are allowable as costs under Section 1032:

…

(10) Attorney's fees, when authorized by any of the following:

(A) Contract.

(B) Statute.

…

(5)(A) If a statute of this state refers to the award of “costs and attorney's fees,” attorney's fees are an item and component of the costs to be awarded and are allowable as costs pursuant to subparagraph (B) of paragraph (10) of subdivision (a). A claim not based upon the court's established schedule of attorney's fees for actions on a contract shall bear the burden of proof. Attorney's fees allowable as costs pursuant to subparagraph (B) of paragraph (10) of subdivision (a) may be fixed as follows: (i) upon a noticed motion, (ii) at the time a statement of decision is rendered, (iii) upon application supported by affidavit made concurrently with a claim for other costs, or (iv) upon entry of default judgment. Attorney's fees allowable as costs pursuant to subparagraph (A) or (C) of paragraph (10) of subdivision (a) shall be fixed either upon a noticed motion or upon entry of a default judgment, unless otherwise provided by stipulation of the parties.

Discussion

While attorney’s fees are technically an item of costs (see Code of Civil Procedure § 1033.5(a)(10), they are traditionally evaluated separately, using separate procedures. It is true that Code of Civil Procedure § 1033.5(c)(5)(A) appears on its face to allow a request for attorney’s fees to be made via a cost bill in one scenario – where the fees are awarded pursuant to statute. But that provision is narrower than it may appear.

The courts have interpreted the statute to mean that attorney’s fees can be included in the cost bill only where the statute not only creates an entitlement to fees, but also fixes their precise amount. See California Rules of Court Rule 3.1702(a)&(e). Where the statute merely awards fees in an amount to be determined later by the judge, due process requires a noticed motion. See Active Properties, LLC v. Cabrera (2016) 6 Cal.App.5^th Supp. 6, 14 (citing Khavarian Enterprises, Inc. v. Commline, Inc. (2013) 216 Cal.App.4^th 310, 327).

But even if the procedure adopted by Defendant had been proper, Section 1033.5(c)(5)(A) places the burden on Defendant to support their fee request. They failed to do so. The memorandum of costs does not provide any supporting declarations or documentation to establish the amount of their fees. And while the memorandum is itself a sworn statement, it is clearly insufficient for counsel to simply ask for a lump sum without explanation.

Conclusion

The request for attorney’s fees was not properly made via the memorandum of costs, and even if it had been, Defendant AECOM did not fulfil their obligation to supply supporting documentation with that request. Therefore, the motion is GRANTED, without prejudice to a formal motion for attorney’s fees.