Following a three-day trial in this matter, this Court awarded Vivian Perez, Defendant/Respondent the sum of $25,000 in attorneys fees and costs pursuant to Civil Code, §§ 1717 and 798.85. The Appellate Division affirmed this Court in all respects.

Defendant/Respondent now seeks an additional $22,110 and attorneys’ fees for the appeal and costs in the amount of $32.68. Defendant/Respondent asserts that this bill is a 49.7% reduction in the fees she incurred.
In their original papers, Plaintiff/Appellant raised the following arguments in opposition to this motion. First, the appeal was based on the issue of the purported failure of this court to adopt its own Statement of Decision as opposed to adopting the one prepared by Defendant/Respondent. Second, the Appellate Division awarded only costs, not attorney’s fees. Third, the lease agreement did not provide for attorneys’ fees on appeal. Fourth, the fees being claimed are excessive.

On 16 December 2013, this Court ordered that the matter be set for further hearing on 28 March 2014 and that both parties be allowed to further brief the matter by filing supplemental papers.

In her supplemental papers, Defendant/Respondent cites Harbour Landing-Dolfann v. Anderson (1996) 48 Cal.App.4th 260 in response to Plaintiff’s/Appellant’s contention that the Appellate Division only awarded costs, and not attorneys’ fees. Under Harbour Landing, the Court of Appeals found that Code of Civil Procedure § 1033.5 specifically provides “that ‘costs’ include attorney fees authorized by ‘contract,’ ‘statute,’ or ‘law.’ (Id. at 264.) As a result, Defendant/Respondent is correct in her assertion that costs may include attorneys’ fees.

However, as Plaintiff/Appellant contends within her supplemental opposition papers, Defendant’s/Respondent’s motion for attorneys’ fees on appeal was filed prematurely, when the Appellate Division still possessed jurisdiction over the matter. California Rules of Court, rule 8.891(c)(1) states that “within 30 days after the clerk sends notice of issuance of the remittitur, a party claiming costs awarded by the appellate division must serve and file in the trial court a verified memorandum of costs…” Defendant/Respondent filed her original motion on 21 October 2013. The remittitur was not issued by the Appellate Division until 18 December 2013.

As the Court of Appeals in Snukal v. Flightways Manufacturing, Inc. stated, “The appellate court clerk’s issuance of the remittitur affects the transfer of jurisdiction to the lower court.” (See Snukal v. Flightways Manufacturing, Inc. (2000) 23 Cal.4th 754, 774, fn. 5.)

Defendant/Respondent’s motion for attorney’s fees was filed prematurely, as the Appellate Division still retained jurisdiction over the matter. Defendant/Respondent needed to file the motion for attorney’s fees after the issuance of the remittitur, which effected transfer of jurisdiction from the Appellate Division to this Court.

The Court of Appeals also reaffirms this principle in its holding in Harbour Landing. As the Court of Appeals stated, “…[B]ecause contractually authorized attorney fees are now listed as costs under Code of Civil Procedure § 1033.5, we hold they may either be requested of the appellate court while the appeal is pending, or of the trial court upon issuance of the remittitur.” (See Harbour Landing-Dolfann v. Anderson (1996) 48 Cal.App.4th 260, 264-265.)
As such, Defendant’s/Respondent’s Motion for Attorneys’ Fees on Appeal is DENIED.