229 Cal. App. 4th 1
Cal. Ct. App.2014Background
- Diskeeper (appellant) obtained a favorable arbitration award against Godelman and Kaufman, including $297,000 in attorney fees; the arbitrator assessed damages, fees, costs solely against Kaufman.
- The trial court confirmed the arbitration award and entered judgment; respondents appealed (prior unpublished opinion affirmed confirmation).
- Diskeeper moved in superior court under Civil Code § 1717 and CCP § 1033.5 for contractual attorney fees incurred in the confirmation proceeding, filing a noticed fee motion timely under Cal. Rules of Court, rule 3.1702.
- Respondents opposed, arguing Diskeeper failed to file a memorandum of costs as required by rule 3.1700.
- The trial court denied fees on that ground (no memorandum of costs); Diskeeper appealed that denial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a party seeking contractual attorney fees under Civ. Code § 1717 must file a memorandum of costs in addition to a noticed fee motion | (Respondents) Fees are "an item of costs" and rule 3.1700 requires a memorandum of costs to claim costs, so Diskeeper forfeited fees by not filing one | (Diskeeper) CCP § 1033.5 and rule 3.1702 govern contractual fee claims; a noticed motion under rule 3.1702 suffices and no separate memorandum of costs is required | Reversed: A party seeking fees under § 1717 need only file a noticed fee motion under rule 3.1702; no memorandum of costs is required for such fee requests (but a memorandum is required for other costs) |
Key Cases Cited
- Pineda v. Williams-Sonoma Stores, Inc., 51 Cal.4th 524 (interpretation of statutes reviewed de novo)
- Crespin v. Shewry, 125 Cal.App.4th 259 (rules of court construed like statutes; practical interpretation)
- Chinn v. KMR Property Management, 166 Cal.App.4th 175 (statutory history confirming § 1033.5 requires noticed motion for contractual fees)
- Bankes v. Lucas, 9 Cal.App.4th 365 (discussing requirements and timeliness for fee motions under § 1717)
- PLCM Group, Inc. v. Drexler, 22 Cal.4th 1084 (amount of fees under § 1717 left to trial court discretion)
- Warne v. Harkness, 60 Cal.2d 579 (canon: specific provision controls over general)