2017-00221989-CU-OR

Vadim Ormanzhi vs. Elena Ormanzhi

Nature of Proceeding: Motion to Tax Costs

Filed By: Batchman, Bret N.

Plaintiff Vadim Ormanzhi’s Motion to Tax Costs is granted.

This ruling is without prejudice to defendant filing a separate motion for attorneys fees pursuant to CCP 405.38.

Plaintiff’s Request for Judicial Notice is granted.

Defendant Elena Kovalevskaya fka Elena Ormanshi was the prevailing party on the motion to expunge lis pendens, hear on February 28, 2018. CCP 405.38 provides that “the court shall direct that the party prevailing on any motion under this chapter be awarded the reasonable attorney’s fees and costs of making or opposing the motion unless the court finds that the other party acted with substantial justification or that other circumstances make the imposition of attorney’s fees and costs unjust.”

The order on the motion to expunge the lis pendens did not include an award of attorneys fees pursuant to CCP 405.38. The prevailing party on the motion to expunge never requested oral argument on the tentative ruling on the issue of the attorneys fees, and the formal order was similarly silent on the issue of attorneys fees. Plaintiff contends that because the court order did not award defendant attorneys fees, they were improperly included in the cost bill under section 10. That section allows attorneys fees to be included in the cost bill only for attorneys fees that are fixed by contract or statute without the necessity of a court determination. However, in the case of a motion to expunge a lis pendens, attorneys fees are awarded only by noticed motion. CCP 405.38

The motion to tax is granted as to the inclusion of the fees in Section 10 of the cost bill. The Court strikes this item in the cost bill without prejudice to the defendant making a motion for attorneys fees pursuant to CCP 405.38.