Case Number: 09CS1534 Hearing Date: May 08, 2018 Dept: 94

Plaintiff’s motion for attorney’s fees is granted.

Background

On February 1, 2018, the Appellate Division affirmed the award of sanctions against Smith, and provided for the recovery of costs. On February 13, 2018 and February 26, 2018, Plaintiff filed a Memorandum of Costs on Appeal and motion for attorney fees.

Legal Standard

(a) “A trial court may order … the party’s attorney… to pay the reasonable expenses, including attorney’s fees, incurred by another party as a result of actions or tactics, made in bad faith, that are frivolous or solely intended to cause unnecessary delay.” (Code Civ. Proc., § 128.5, subd. (a).)

The reasonableness of attorney fees lies within the discretion of the trial court. (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1096.) The court makes it determination based on the consideration of a number of factors, including, “the nature of the litigation, its difficulty, the amount involved, the skill required in its handling, the skill employed, the attention given, the success or failure, and other circumstances in the case.” (Ibid.) The court should apply an objective standard of reasonableness. (Id. at p. 1098.)

Discussion

“A notice of motion to claim attorney’s fees on appeal…must be served and filed within the time for serving and filing the memorandum of costs under…rule 8.891(c)(1) in a limited civil case.” (Cal. Rules of Court, 3.1702(d).) (1) “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 under rule 3.1700(a)(1).” (Cal. Rules of Court, 8.891(c)(1).) “Unless the court orders otherwise, an award of costs neither includes attorney’s fees on appeal nor precludes a party from seeking them under rule 3.1702.” (Cal. Rules of Court, 8.891(d)(2).)

On February 1, 2018, the Appellate Division affirmed the award of sanctions against Smith, and provided for the recovery of costs. On February 26, 2018, Plaintiff filed its motion for attorney fees. The motion was therefore timely filed.

Plaintiff seeks recovery of attorney fees pursuant to Code of Civil Procedure section 685.040, which states:

“The judgment creditor is entitled to the reasonable and necessary costs of enforcing a judgment. Attorney’s fees incurred in enforcing a judgment are not included in costs collectible under this title unless otherwise provide by law. Attorney’s fees incurred in enforcing a judgment are included as costs collectible under this title if the underlying judgment includes an award of attorney’s fees to the judgment creditor pursuant to subparagraph (A) of paragraph (10) of subdivision (a) of Section 1033.5.”

The sanctions award is enforceable as a judgment, and therefore enforceable through the execution of judgment laws. (Newland v. Superior Court (1995) 40 Cal. App. 4th 608, 615. Orders imposing monetary sanctions “have the force and effect of a money judgment.” (Ibid.) Plaintiff therefore presents a valid basis for recovery of attorney fees associated with the collection on the judgment in responding to the appeal.

The $19,266.88 in requested costs associated with the appeal are reasonable. [Lewis-Heard Decl., Ex. 3.] (PLCM Group v. Drexler, supra, 22 Cal.4th at p. 1098.) The additional requests for fees incurred in drafting a reply to this unopposed motion are unsupported.

The motion for attorney fees should be GRANTED.

Moving party to give notice.