Judge Layne H. Melzer, Case 2019-01047427 2023-08-31 Tentative Ruling

Judge: Layne H. Melzer, Case: 2019-01047427, Date: 2023-08-31 Tentative Ruling

Defendants Vision One Mortgage, Inc., Stacie Johnson and Lloyd Rucker

Motion for Attorney Fees

The court grants Defendant Defendants Vision One Mortgage, Inc.’s Motion for attorney’s fees and costs on appeal against Plaintiff Mayra Gonzalez.

Costs on Appeal

The right to recover costs on appeal is governed solely by CRC 8.278. [Musaelian v. Adams (2011) 197 CA4th 1251, 1259; Lavine v. Jessup (1959) 175 CA2d 136, 138; and see CCP § 1034—costs on appeal must be claimed and contested pursuant to Judicial Council rules].

As a general rule, the party “prevailing” on appeal is entitled to recover costs on appeal. [CRC 8.278(a)(1)]. Here, the Court of Appeal held that Defendant was the prevailing party: “Respondent is to recover its costs on appeal.” (ROA 446). The actual assessment and recovery of costs occurs in the trial court, in accordance with the procedure prescribed by CRC 8.278(c). [See CCP § 1034; Alan S. v. Sup.Ct. (Mary T.) (2009) 172 CA4th 238, 259-260—recovery of appellate costs is governed by CRC 8.278, not CCP § 1033.5].

The items recoverable as costs on appeal are prescribed exclusively by CRC 8.278(d)(1). No other costs are recoverable. (Stratton v. Beck (2018) 30 CA5th 901, 910.)

Recoverable costs items include the following, if reasonable, filing fees and record preparation. (See CRC 8.278(d)(1)(A) and (B).)

Here, Defendant seeks filing fees in the amount of $780 and for the preparation of the report’s transcript in the amount of $427. (ROA 458). There was no motion to strike or tax costs and these amounts are not challenged. The court finds them reasonable and allowable.

The only argument that Plaintiff makes in opposition is that the Memorandum of Costs was not timely filed and served. The court disagrees.

The party claiming costs awarded by the appellate court must file and serve a verified costs memorandum. [CRC 8.278(c)(1)]. The costs memorandum must be filed and served within 40 days after issuance of the remittitur. [CRC 8.278(c)(1); see Marriage of Freeman (2005) 132 CA4th 1, 7-9, 33 CR3d 237, 240-241—rule applies to all civil cases, including family law cases].

Here, the Remittitur issued on 2/14/23. (ROA 446) The Memorandum of Costs was filed on 2/24/23, just a few days later. (ROA 458). It was served the same date. (ROA 448). Plaintiff did not timely move to strike or tax those costs.

Thus, the court grants the costs requested.

Attorney’s Fees

If the appellate court's opinion is silent on the subject of appellate attorney fees—i.e., “[u]nless the court orders otherwise”—the appellate judgment neither includes attorney fees on appeal nor precludes a party from seeking them, and the issue of entitlement to fees on appeal will be determined on remand by motion made in the trial court pursuant to CRC 3.1702. [CRC 8.278(d)(2); see Gale v. Sup.Ct. (Gale) (2004) 122 CA4th 1388, 1399, fn. 7; Butler-Rupp v. Lourdeaux (2007) 154 CA4th 918, 925-928.]

Statutory authorization for the recovery of attorney fees incurred in trial court proceedings necessarily includes attorney fees incurred on appeal … unless the statute specifically provides otherwise. The statute need not expressly authorize attorney fees on appeal. [Morcos v. Board of Retirement of County of Los Angeles Employees' Retirement Ass'n (1990) 51 C3d 924, 927—“fees, if recoverable at all—pursuant either to statute or parties' agreement—are available for services at trial and on appeal” (first emphasis added; second emphasis in original; internal quotes omitted); Garcia v. Governing Bd. of Bellflower Unified School Dist. (2013) 220 CA4th 1058, 1067; Imperial Bank v. Pim Electric, Inc. (1995) 33 CA4th 540, 557; see Carter v. Cohen (2010) 188 CA4th 1038, 1053 (same where fee award authority is based on municipal ordinance).]

The same rule applies for attorney fees recoverable pursuant to contract: The contractual authorization for recovery of attorney fees incurred in trial court proceedings includes attorney fees incurred on appeal. [Douglas E. Barnhart, Inc. v. CMC Fabricators, Inc. (2012) 211 CA4th 230, 250, 149 CR3d 440, 456].

Plaintiff opposes this request, first on the ground that it is untimely and second on the grounds that this was an employment case and thus Defendant must show that the claim(s) were frivolous.

First, the court finds the Motion timely.

A notice of motion to claim contractual (or statutory) attorney fees on appeal must be served and filed within the time for serving and filing the memorandum of costs under CRC 8.278(c)(1) in an unlimited civil case—i.e., within 40 days after issuance of the remittitur. [CRC 3.1702(c)(1); see Marriage of Freeman (2005) 132 CA4th 1, 7-9, 240-241—rule applies in all civil cases, including family law cases].

Here, the Motion was initially filed and served on 2/24/23. (ROA 448, 456, 458.) Defendant filed a corrected notice on 3/13/23 with the correct department, time, and date of the hearing, but later realized that the reservation was not properly made or the Motion failed to appear on calendar. (ROA 464). Counsel re-filed the same Motion to ensure that the department, time, and date were correct. This does not render the initial filing untimely.

Second, Plaintiff argues that this was really an employment case and the Labor Code requires a standard of frivolity before a prevailing employer can be awarded attorney’s fees.

This argument was denied by the Trial Judge, who awarded attorney’s fees pursuant to Section 1717 after Defendant prevailed at trial. (ROA 416). The Trial Judge also held that even if frivolity was the standard, that standard was met and he provided sound reasoning. (ROA 416).

Moreover, Plaintiff failed to appeal this determination by the Trial Judge of the standard to award attorney’s fees in this case that contained employment issues and/or the finding that the case was frivolous. The only challenge to attorney’s fees on appeal was that the attorney fee award must be reversed because the judgment is reversed. The Court of Appeal upheld the Judgment and the award of attorney’s fees.

Thus, Defendant is the prevailing party on appeal under Section 1717 and entitled to its reasonable attorney’s fees.

Furthermore, where the employee claims a contract allows fees and loses, the employer may be entitled to recover fees from the employee if the employer proves the contract actually provides such a remedy. Here, the Plaintiff claimed fees on the contract in the First Amended Complaint and did not hone in on its penalty claims (and the record reflects was intentionally cagey) until mid-trial, apparently hedging her bets on the court’s ruling on pre-trial motions.

Amount of Fees

There was only one attorney who performed work on the appeal – Philip A. Levy. The court finds his rate of $425 per hour to be reasonable and in line with the community. (Levy Decl., ¶22.)

The court has reviewed the detailed billing and Declaration of Mr. Levy and finds the time spent to be reasonable. Mr. Levy represented Plaintiff at trial and was the only attorney who billed for defending the unsuccessful appeal. Moreover, Plaintiff makes no challenge to the amount of fees billed.

Interest

Finally, Defendant asks for an amended judgment with all of the attorney’s fees and costs, and to include 10% interest on the August 31, 2020 cost-award of $13,005.47 and 10% interest on the October 28, 2020 award of attorney’ fees totaling $201,805. This is proper and Plaintiff does not challenge this Request in opposition. (See CCP § 685.010(a)(1) (amended Stats. 2022, Ch. 883; eff. 1/1/23); Hyundai Securities Co. Ltd. v. Lee (2015) 232 CA4th 1379, 1390.)

Defendant is ordered to submit a proposed second amended judgment for the court’s consideration.

Defendant is ordered to serve notice of this Order.