Case Number: BC527897 Hearing Date: March 01, 2018 Dept: 53

chantel king VS. frank canko, ET AL.; BC527897, March 1, 2018

[tentative] order re: PLAINTIFF’s MOTION TO TAX COSTS IN THE AMOUNT OF $56,200.00

Plaintiff CHANTEL KING’s Motion to Tax Costs in the Amount of $56,200.00 is GRANTED.

BACKGROUND

Plaintiff Chantel King (“Plaintiff”) initiated this action on November 18, 2013, by filing a shareholder derivative complaint against Defendants Frank Canko (“Canko”) and Jegerman Inc. (“Jegerman”) (jointly, “Defendants”). On February 26, 2015, Canko filed a Cross-Complaint against King. On March 25, 2015, King filed a special motion to strike Canko’s Cross-Complaint. The trial court granted King’s special motion to strike. Canko subsequently appealed, and the trial court’s ruling was reversed. The Court of Appeal noticed the Remittitur on November 1, 2017.

On December 7, 2017, Canko filed his Memorandum of Costs on Appeal, which included $56,200.00 in attorneys’ fees pursuant to Code of Civil Procedure section 425.16(c). Plaintiff now moves to tax the attorneys’ fees portion of Canko’s costs. The instant motion is unopposed.

Discussion

Plaintiff contends that Canko’s request for attorneys’ fees in his Memorandum of Costs on Appeal are improper and violate California Rules of Court, rule 3.1702, which provides that the noticed motion procedure under subdivision (c) applies “when the court determines entitlement to the fees, the amount of the fees, or both, whether the court makes that determination because the statute or contract refers to ‘reasonable’ fees.” (Cal. Rules of Court, rule, 3.1702.) The statute under which Canko seeks fees, Code of Civil Procedure section 425.16(c), utilizes the language “reasonable attorney’s fees,” implicating rule 3.1702. Therefore, Canko may only seek an award of attorney’s fees by noticed motion.

CONCLUSION

For the foregoing reasons, Plaintiff’s motion to tax costs is GRANTED.

Plaintiff is ordered to give notice of this ruling.

DATED: March 1, 2018

_____________________________

Howard L. Halm

Judge of the Superior Court