Case Number: BS170675 Hearing Date: March 08, 2018 Dept: 46

Case Number: BS170675
ROBERT CHRISTOPHER CHATHAM VS MARY CAROLE MCDONNELL ET AL

Filing Date: 08/21/2017
Case Type: Petn to Comp/Conf Arbitration Status: Arbitration Award Entered as Judg. 09/20/2017

Future Hearings

3/08/2018
MOTION – TAX COSTS

TENTATIVE RULING

Mary Carole McDonnell’s Motion to Tax Costs is GRANTED pursuant to CCP §1033.5 and CRC 3.1702. $73,275.64, representing attorney’s fees and costs, is taxed from the cost bill without prejudice to a proper motion for attorney’s fees, leaving the sum of $588.36. See discussion.

DISCUSSION

Respondent now moves the court, per CCP § 1033.5 and CRC Rule 3.1702 for an order striking and/or taxing costs incurred by Petitioner in this matter on the grounds that Petitioner has included attorney’s fees, which must be fixed by noticed motion.

CCP § 1032 states, in relevant part, the following:

(a) As used in this section, unless the context clearly requires otherwise:

(1) “Complaint” includes a cross-complaint.

(2) “Defendant” includes a cross-defendant or a person against whom a complaint is filed.

(3) “Plaintiff” includes a cross-complainant or a party who files a complaint in intervention.

(4) “Prevailing party” includes the party with a net monetary recovery, a defendant in whose favor a dismissal is entered, a defendant where neither plaintiff nor defendant obtains any relief, and a defendant as against those plaintiffs who do not recover any relief against that defendant. When any party recovers other than monetary relief and in situations other than as specified, the “prevailing party” shall be as determined by the court, and under those circumstances, the court, in its discretion, may allow costs or not and, if allowed may apportion costs between the parties on the same or adverse sides pursuant to rules adopted under Section 1034.

(b) Except as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.

CCP § 1033.5 states that:

“(a) The following items are allowable as costs under Section 1032:

(1) Filing, motion, and jury fees…

…

(4) Service of process by a public officer, registered process server, or other means, as follows:

(A) When service is by a public officer, the recoverable cost is the fee authorized by law at the time of service.

(B) If service is by a process server registered pursuant to Chapter 16 (commencing with Section 22350) of Division 8 of the Business and Professions Code, the recoverable cost is the amount actually incurred in effecting service, including, but not limited to, a stakeout or other means employed in locating the person to be served, unless those charges are successfully challenged by a party to the action.

(C) When service is by publication, the recoverable cost is the sum actually incurred in effecting service.

(D) When service is by a means other than that set forth in subparagraph (A), (B), or (C), the recoverable cost is the lesser of the sum actually incurred, or the amount allowed to a public officer in this state for that service, except that the court may allow the sum actually incurred in effecting service upon application pursuant to paragraph (4) of subdivision (c).

…

(10) Attorney’s fees, when authorized by any of the following:

(A) Contract.

(B) Statute.

(C) Law.

…

(c) An award of costs shall be subject to the following:

(1) Costs are allowable if incurred, whether or not paid.

(2) Allowable costs shall be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.

(3) Allowable costs shall be reasonable in amount.

(4) Items not mentioned in this section and items assessed upon application may be allowed or denied in the court’s discretion.

(5)… Attorney’s fees allowable as costs pursuant to subparagraph (A) or (C) of paragraph (10) of subdivision (a) shall be fixed either upon a noticed motion or upon entry of a default judgment, unless otherwise provided by stipulation of the parties.”

CRC Rule 3.1702 provides in relevant part:

“(a) Application

Except as otherwise provided by statute, this rule applies in civil cases to claims for statutory attorney’s fees and claims for attorney’s fees provided for in a contract. Subdivisions (b) and (c) apply 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, because it requires a determination of the prevailing party, or for other reasons.

…

(e) Attorney’s fees fixed by formula

If a party is entitled to statutory or contractual attorney’s fees that are fixed without the necessity of a court determination, the fees must be claimed in the memorandum of costs.”

Local Rule 3.214 provides in pertinent part:

“(a) Contract Provision or Note. When a promissory note, contract, or statute provides for the recovery of reasonable attorneys’ fees, the following schedule will apply to the amount of the new judgment unless otherwise determined by the court…

Contested case (unless otherwise determined by the court):

$0.01 to $1,000, 15% with a minimum of $100

…

Over $100,000, $5,270 plus 2% of the excess over $100,000.”

The parties are agreed that fees are recoverable pursuant to the underlying contract, the relevant portion of which reads as follows:

“If any Party to this Agreement brings an action to enforce the terms hereof; or to declare rights hereunder; or to enforce judgment hereunder; or collection of payment hereunder, the prevailing party in such action shall be entitled to recover as recoverable costs in any such action its actual attorneys’ fees and costs, all expert fees and costs, all mediation and arbitration expenses, and any other costs reasonably and properly incurred, including any fees and costs incurred in bringing and prosecuting such action and enforcing any order, judgment, ruling, or award granted as part of such action. As used in this Section, prevailing party shall include, without limitation, a party which obtains substantially the relief sought by it.” (Decaration of Juthamas J. Suwatanapongched Exhibit 3).

Under CCP § 1033.5(c)(5), attorney’s fees are to be fixed by noticed motion, unless there is a default. Under CRC Rule 3.1702(e), attorney’s fees must be included in the memorandum of costs only if the amount of fees is fixed without the necessity of a court determination of entitlement to fees or the amount of fees. Rule 3.1702(e) applies where the contract under which plaintiff sues itself sets forth a schedule of fees, such that calculation of the fees is a mere matter of mathematics. There has been no default here, and the contract does not set forth a schedule of fees. Instead, it requires that the prevailing party recover “actual attorney’s fees.”

Petitioner suggests that Local Rule 3.214 provides a formula for determining attorney’s fees in a contract case. But the contract itself does not adopt that formula. And Local Rule 3.214 does not mandate the application of its schedule in a non-default case; in fact, the Rule repeatedly states that the court is empowered to make a different determination. Therefore, attorney’s fees in this action are not fixed without the necessity of a court determination, and Rule 3.1702(e) does not apply.

A traditional noticed motion, supported by declaration(s), is required to recover attorney’s fees in this case. Inclusion of a definite amount of attorneys’ fees in the memorandum of costs was improper. Respondent’s motion is therefore GRANTED.

The memorandum of costs is TAXED in the amount of $73,275.64. Respondent remains obliged to pay the $555.00 in filing and motion fees, as well as the $33.36 for service of process, totaling $588.36.

IT IS SO ORDERED:

Frederick C. Shaller, Judge