Daily Blast August 21, 2014

The California Court of Appeal, Second Appellate District, Division Four (Los Angeles) issued an opinion in Kaufman v. Diskeeper Corporation (Aug. 21, 2014, B248151) ___ Cal.App.4th ___, analyzing whether a party seeking contractual attorney fees subject to Civil Code section 1717 must file a memorandum of costs regarding the fees. (Slip opn., p. 2.) The Court of Appeal held that “a party seeking attorney fees pursuant to Civil Code section 1717 need not, in addition to filing a noticed motion, file a memorandum of costs.” (Ibid.)

The case arose out of breach of a settlement agreement that was resolved at arbitration in favor of the appellant. Appellant then moved to confirm the arbitration award, which was granted. Appellant also moved for attorney fees and costs as the prevailing party in the arbitration confirmation proceeding pursuant to Civil Code section 1717 and Code of Civil Procedure section 1033.5. (Slip opn., pp. 3-4.) The trial court denied the motion because appellant failed to file a memorandum of costs on appeal required under California Rules of Court, rule 3.1700. Appellant appealed the order denying its motion for attorney fees. (Id. at p. 4.)

The Court of Appeal stated that this was “an issue of first impression, as our research has disclosed no published decision examining whether a party seeking contractual attorney fees subject to Civil Code section 1717 must file a memorandum of costs regarding the fees.” (Slip opn., p. 4.) The court examined the statutory scheme of Civil Code section 1717 and Code of Civil Procedure section 1033.5 governing recovery for attorney fees under contract. (Id. at pp. 5-6.) According to the court, neither statute expressly mandates that a party also file a memorandum of costs to secure fees. (Id. at p. 7.) The court held that California Rules of Court, rule 3.1700 regarding prejudgment costs is inapplicable to a request for attorney fees under Civil Code section 1717. Thus, the court concluded that “a party seeking fees incurred before judgment under Civil Code section 1717 need not file a memorandum of costs regarding the fees, in addition to filing a fee motion in compliance with rule 3.1702. Accordingly, the trial court erred in denying [appellant’s] fee request for want of a memorandum of costs.” (Id. at p. 12.)

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