Judge: John C. Gastelum, Case: 18-00983085, Date: 2023-05-24 Tentative Ruling

(1) Motion for Attorney Fees (2) Motion to Strike or Tax Costs (3) Motion for Judgment Notwithstanding the Verdict

Tentative Ruling:   (1) Motion for Attorney Fees filed by Plaintiff, Michelle McKinney (ROA 537) is DENIED, without prejudice.

A notice of motion claiming attorney fees for services up to and including rendition of the trial court judgment, including attorney fees on an interim appeal before rendition of the judgment, must be served and filed within the time for filing a notice of appeal under CRC, rules 8.104, 8.108 in an unlimited civil case or under CRC, rules 8.822 and 8.823 in a limited civil case.  (CRC, rule 3.1702(b)(1); see P R Burke Corp. v. Victor Valley Wastewater Reclamation Auth. (2002) 98 Cal.App.4th 1047, 1052 [motion “almost always” filed after entry of judgment because until then “there is technically no prevailing party” and “parties may still incur additional fees.”].) The normal time limit for filing a notice of appeal [and hence for an attorney fees motion] is 60 days after the clerk's or any party's service of notice of entry of judgment, or 180 days after the date of entry, whichever is the earliest.  (CRC, rule 8.104(a).) 

Plaintiff moves for statutory attorney fees under Labor Code section 1194. “Labor Code section 1194 is a ‘one-way’ fee-shifting statute, which gives employees the right to recover reasonable attorney fees in a successful suit for overtime compensation, without giving employers any corresponding right in the event of a successful defense of an employee suit.” (Bell v. Farmers Ins. Exchange (2001) 87 Cal.App.4th 805, 829.) “Though the term ‘to recover’ has a range of possible meanings, we think that in the context of a civil action it ordinarily denotes the securing of a judgment.” (Id. at p. 831.) Thus, “the phrase ‘to recover in a civil action the unpaid balance of the full amount of . . . overtime compensation’ [refers] to a recovery by judgment. [Citation.]” (Ibid.) “It follows, . . ., that the phrase ‘including interest thereon, reasonable attorney’s fees, and costs of suit’ has reference to the existence of such a judgment and refers to items included in that judgment. Indeed, the reference to interest and costs of suit can only refer to items awarded in a judgment.” (Ibid.)

The present Motion for Attorney Fees appears premature since no judgment has been entered, and the timing for a motion for attorney fees generally begins to run at some point after judgment is entered. The motion is denied, without prejudice.

Defendants to give notice.

(2) Motion to Strike or Tax Costs filed by Defendants Piecemakers, Douglas Follette, and Brenda Stanfield (ROA 541) is DENIED, without prejudice.

“A prevailing party who claims costs must serve and file a memorandum of costs within 15 days after the date of service of the notice of entry of judgment or dismissal by the clerk under Code of Civil Procedure section 664.5 or the date of service of written notice of entry of judgment or dismissal, or within 180 days after entry of judgment, whichever is first. The memorandum of costs must be verified by a statement of the party, attorney, or agent that to the best of his or her knowledge the items of cost are correct and were necessarily incurred in the case.” (California Rules of Court (“CRC”), rule 3.1700(a)(1).) The rule “contemplates the entry of dismissal or judgment as a predicate to a costs award.” [Citation.]” (Boonyarit v. Payless Shoesource, Inc. (2006) 145 Cal.App.4th 1188, 1192.) “… [B]ecause there must be a dismissal or judgment entered as a predicate to a costs award, ‘[a]pparently, the memorandum of costs must be filed together with a proposed judgment of dismissal’ (citation), and the judgment must be executed and entered by the court if costs are awarded.” (Ibid.)

Here, as no Statement of Decision has been issued or filed by the Court and no judgment has been entered, the present motion appears premature. The motion is denied, without prejudice.

Plaintiff to give notice.

(3)  No tentative ruling will be posted.   The parties are ordered to appear (via ZOOM) and argue at the hearing on the motion.