Costs on Appeal

A. Remittitur

1. Purpose and Form of Remittitur: After an appeal is finally decided, whether by the supreme court or the court of appeal without supreme court review, the case is transferred back to the trial court. The transfer is accomplished by the appellate court's issuance of a document called a 'remittitur.'
The remittitur notifies the trial court that the appellate court judgment is final and specifies any entitlement to recovery of costs on appeal. It is accompanied by a file-stamped copy of the appellate court's opinion or order. [CCP § § 43, 912; CRC 26(b) (1)(B) & (2)(B), 29.6(b)(2); also see Schwartz v. Schwartz (1969) 268 CA2d 685, 690, 74 CR 192, 196; Noel v. Smith (1905) 2 CA 158, 161-162, 83 P 167, 169]
A remittitur cannot issue until the appellate court's decision becomes final as to that court . The delay between filing of the appellate court's decision and issuance of the remittitur is intended to permit petitions for rehearing (Ch. 12) and supreme court review (Ch. 13). [Rare Coin Galleries, Inc. v. A-Mark Coin Co., Inc. (1988) 202 CA3d 330, 336, 248 CR 341, 344]

a. Effects transfer of jurisdiction: Issuance of a remittitur terminates the appellate court's jurisdiction over the case and revests jurisdiction in the trial court. [Snukal v. Flightways Mfg., Inc. (2000) 23 C4th 754, 774, 98 CR2d 1, 19, fn. 5; Riley v. Super.Ct. (1957) 49 C2d 305, 310, 316 P2d 956, 958-959; Bryan v. Bank of America (2001) 86 CA4th 185, 190, 103 CR2d 148, 151]
Absent a motion to recall the remittitur, all further proceedings in the case take place in the trial court. However, the terms of the remittitur define, and thus can limit, the trial court's jurisdiction to act on remand. The appellate court's order, as stated in the remittitur, 'is decisive of the character of the judgment to which the appellant is entitled.' [Snukal v. Flightways Mfg., Inc., supra, 23 C4th at 774, 98 CR2d at 19, fn. 5 (internal quotes and citations omitted); Griset v. Fair Political Practices Comm'n (2001) 25 C4th 688, 701, 107 CR2d 149, 158]

b. Appellate court 'judgment' distinguished: A remittitur is not the reviewing court's 'judgment.' The judgment is rendered in conjunction with the reviewing court's written opinion and becomes 'final' as to that court upon expiration of a specified period of time). The 'remittitur' notifies the trial court of the appellate judgment and its finality. [See Gallenkamp v. Super.Ct. (People) (1990) 221 CA3d 1, 10, 270 CR 346, 350]

c. Statement as to recovery of costs: The remittitur includes a statement of entitlement to recovery of appellate costs, based either on the terms of the appellate court judgment or operation of CRC 27:

(1) Determined by judgment: When the appellate court judgment directs the manner in which costs are to be awarded or denied, the remittitur must specify a costs recovery in accordance with those directions. [CRC 27(b)(1)]
(In the case of multiple notices of appeal or a partial reversal or modification of the judgment, the appellate court opinion must specify the award or denial of costs. CRC 27(a)(3))

(2) Determined by CRC 27(a)(2): If the judgment is silent on the matter of appellate costs, the appellate court clerk must insert in the remittitur a costs award in accordance with CRC 27(a)(2), as follows:
• for respondent in the case of an affirmance without modification or a dismissal of the appeal; or
• for appellant in the case of a full reversal (CRC 27(a) (2)). [CRC 27(b)(1)]

(3) Remedy for erroneous costs statement: If the remittitur erroneously specifies the costs award, the appropriate remedy is a motion to recall the remittitur for correction.

d. Form of remittitur: No particular form of remittitur is prescribed by statute or court rule. Local district practices may vary, although all remittiturs are substantially the same in substance (notifying the trial court of the appellate court judgment and specifying entitlement to recovery of appellate costs, above).

e. Interpretation of remittitur: Any ambiguity in the remittitur must be resolved in reference to the appellate court's opinion and in a manner that harmonizes with the appellate court's ruling. [People ex rel. Cooper v. Mitchell Bros. Santa Ana Theater (1985) 165 CA3d 378, 385, 211 CR 501, 505 (remittitur ambiguous as to identity of 'prevailing party' entitled to costs on appeal where each party to the appeal succeeded in obtaining partial reversal of trial court judgment)]

f. No remittitur required for summary denial of writ petition: A remittitur need not be issued after summary denial of a writ petition. It is required only for appeals and for writ proceedings where the court issued an alternative writ or order to show cause. [CRC 26(a), 29.6(a)]

2. Usual Remittitur Procedure: Subject to special rules authorizing 'immediate' issuance of a remittitur, 'stay' of issuance and 'recall', a remittitur is issued as follows:

a. Time and manner for issuance: The procedure for issuance of a remittitur depends on whether the appeal was decided (1) by the court of appeal without supreme court review or (2) by the supreme court:

(1) Issuance by court of appeal where no supreme court review

(a) Normally upon denial of review or expiration of time for granting review: When no party has petitioned for supreme court review, or if supreme court review is denied, the appellate court clerk must issue the remittitur ' immediately' after the supreme court denies review or upon expiration of the deadline for granting supreme court review, accompanied by a file-stamped copy of the court's opinion or order. [CRC 26(b)(1)]

(b) Upon dismissal of review: If the supreme court grants review but then later dismisses review, the appellate court clerk must issue the remittitur 'immediately' upon the supreme court's dismissal. [CRC 26(b)(1)]

(2) Issuance after supreme court review: When an appeal is decided by the California Supreme Court, remittiturs are issued by the clerks of both the supreme court and the court of appeal. [CRC 26(b)(2), 29.6]

(a) Remittitur to court of appeal: The first remittitur issues from the supreme court clerk to the court of appeal when the supreme court decision becomes final. The supreme court remittitur is accompanied by a second copy of the remittitur and two file-stamped copies of the supreme court's opinion or order. [CRC 29.6(b)(1) & (2)]

(b) Remittitur to trial court: Then, if the supreme court opinion simply affirmed or reversed the appellate court judgment (i.e., no direction for further appellate court proceedings), the court of appeal 'immediately' issues its own remittitur addressed to the trial court, accompanied by copies of the supreme court's opinion and remittitur. [CRC 26(b)(2)] If the supreme court directed further proceedings in the court of appeal, the court of appeal issues its remittitur after finality of those proceedings.

(3) Delay of issuance inconsequential: Delay of issuance of the remittitur (even if substantial) does not cause the appellate court to lose jurisdiction; it simply postpones transfer of jurisdiction to the trial court. [Gallenkamp v. Super.Ct. (People) (1990) 221 CA3d 1, 11-12, 270 CR 346, 351]

b. Effective immediately: A remittitur takes immediate effect ('is deemed issued') upon the court clerk's entry of the remittitur in the record of the case (not upon filing of the remittitur in the trial court). [CRC 26(d)(1), 29.6(b)(1); Bellows v. Aliquot Associates, Inc. (1994) 25 CA4th 426, 432- 433, 30 CR2d 723, 726-727 & fns. 8 & 9; Rare Coin Galleries, Inc. v. A-Mark Coin Co., Inc. (1988) 202 CA3d 330, 335, 248 CR 341, 344; compare CCP § § 583.320(a)(3) & 583.420(a)(3)(C) (dismissals for failure to bring to trial within 3/2 years after remittitur filed by trial court clerk.)]

c. Notice to parties: When a remittitur is issued, the court clerk (court of appeal or supreme court) must 'immediately' send notice of issuance to the parties, showing the date of the remittitur's entry. [CRC 26(d)(1), 29.6(b)(4)]

d. Filing of opinion in trial court: Upon receipt of the remittitur and appellate court opinion, the trial court clerk is required to file the opinion, attach it to the judgment roll if the appeal was from a judgment, and enter a description of the appellate court's judgment in the margin of the original entry of the appealed judgment or order and in the register of actions. [CCP § 912]

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c. Costs recovery procedure: As noted, the appellate court's remittitur simply specifies who is entitled to costs. The actual assessment and recovery of costs occurs in the trial court, in accordance with the procedure prescribed by CRC 27(d). [See CCP § 1034]

(1) Recovery sought by memorandum of costs: The party (or parties) claiming costs awarded by the appellate court must file and serve a verified costs memorandum. [CRC 27(d)] The Judicial Council form Memorandum of Costs on Appeal (adopted for mandatory use) must be used for this purpose.

(a) Time limitation: The costs memorandum must be filed and served within 40 days after the appellate court clerk mails notice of issuance of the remittitur. [CRC 27(d)]

1) Extension? CRC 870, which governs recovery of prejudgment costs in the trial court, allows an extension of time for filing a prejudgment costs memorandum, by either court order for up to 30 days or stipulation of the parties. [CRC 870(b)(3)]
Although there is no clear authority on point, since CRC 870 is incorporated in portions of CRC 27(d), arguably a postappeal costs memorandum is subject to the same extensions.

2) Delay waives recovery: A party awarded costs who fails to file and serve the costs memorandum within the prescribed time period (or any authorized extension) waives (i.e., forfeits) the costs recovery. [Moulin Electric Corp. v. Roach (1981) 120 CA3d 1067, 1070, 175 CR 111, 112]

a) Relief from waiver: However, relief may be available by motion under CCP § 473(b) if the default in failure to timely file was occasioned by 'mistake, inadvertence, surprise or excusable neglect.' [Moulin Electric Corp. v. Roach, supra, 120 CA3d at 1070, 175 CR at 112 (§ 473 motion for relief from waiver never made); Spellens v. Spellens (1957) 49 C2d 210, 227- 228, 317 P2d 613, 623-624]

3) Deadline following abandonment of appeal: Except where the appellate court otherwise orders in the 'interests of justice', respondent is entitled to recover costs following abandonment of an appeal, because the abandonment operates as a dismissal. However, since an abandonment occurs in the trial court, no remittitur issues and, therefore, the CRC 27(d) 40-day deadline for filing the costs memorandum does not apply. Here, the costs memorandum must be filed within a reasonable time after the trial court clerk gives notice of the abandonment. [Wilson v. Harley-Davidson Motor Co. (1977) 67 CA3d 678, 680-681, 136 CR 793, 794]

(b) Mandatory verification: A costs memorandum must be verified by 'a statement of the party, attorney, or agent that to the best of his or her knowledge the items of cost are correct and were necessarily incurred in the case.' [CRC 870(a)(1); see CRC 27(d)(1)--party claiming costs must file 'a verified memorandum of costs under rule 870'; Snodgrass v. Snodgrass (1930) 103 CA 412, 414, 284 P 696--unverified costs memorandum stricken on opposing party's motion]
The Judicial Council form Memorandum of Costs on Appeal (adopted for mandatory use) contains the requisite language, satisfying the verification requirement so long as it is properly completed and signed.

(c) No supporting documentation required absent motion to strike or tax costs: A valid (verified) costs memorandum establishes a prima facie case for recovery of the costs sought. Therefore, counsel need not provide supporting documentation (e.g., copies of bills, invoices or statements) unless there is a timely motion to strike or tax costs (below). [Bach v. County of Butte (1989) 215 CA3d 294, 308, 263 CR 565, 573]

(2) Opposition by motion to strike or tax costs: A party liable for costs can challenge the costs memorandum by a motion to strike or tax costs. [CRC 27(d)(2)]

(Compare: A motion to strike or tax costs is not the appropriate remedy to seek a change in the appellate court's specification of entitlement to costs on appeal. As discussed, the only recourse is in the court of appeal, before the remittitur issues.)

(a) Time limitation: A motion to strike or tax costs must be filed and served within 15 days after service of the costs memorandum. [CRC 27(d)(2), 870(b)(1)]
1) Extensions

a) Where costs memorandum served by mail, Express Mail, fax or other overnight delivery method: The 15-day period is extended pursuant to CCP § 1013(a) if the costs memorandum was served by mail. [CRC 27(d)(2), 870(b)(1)]
Similarly, the CCP § 1013(c) & (e) two-court-day extensions apply where the costs memorandum was served by Express Mail, fax or other overnight delivery method. [See CCP § 1013(c) & (e)--'This extension applies in the absence of a specific exception provided for by this section or other statute or rule of court']

b) Party stipulation or court order: The 15-day period can also be extended by the parties' written agreement filed with the court clerk; or, absent such agreement, by court order for a maximum 30-day period. [CRC 27(d)(2), 870(b)(3)]

2) Relief to file late motion: Failure to timely serve and file a motion to strike or tax costs ordinarily waives the right to object to the costs memorandum; but relief may be available under CCP § 473 if the default resulted from 'mistake, inadvertence, surprise or excusable neglect.' [Lane v. Pacific Greyhound Lines (1947) 30 C2d 914, 916-917, 187 P2d 9, 11]

(b) Identification of disputed items: Unless an objection is properly made to the entire costs memorandum (e.g., because memorandum not verified or filed too late), the motion to strike or tax costs must refer to each disputed item by the same number and in the same order as in the costs memorandum, and must state why each specified item is objectionable. [CRC 27(d)(2), 870(b)(2)]

(c) Objector's burden: A valid costs memorandum establishes a prima facie case for recovery. Thus, the burden is on the party moving to strike or tax costs to establish that each disputed item is not recoverable. [Bach v. County of Butte (1989) 215 CA3d 294, 308, 263 CR 565, 573; Pratt v. Robert S. Odell & Co. (1944) 63 CA2d 78, 81, 146 P2d 504, 505]

However, an objector seeking to strike or tax costs on the ground that the opposing party included unnecessary items in the record need not have previously moved the appellate court to sanction the opposing party under CRC 27(e). [See CRC 27, Adv. Comm. Comment]

(d) Appeal from order on motion: The trial court's order on a motion to strike or tax costs generally is directly appealable under CCP § 904.1(a)(2) as an order after a final judgment. [Citizens Against Rent Control v. City of Berkeley (1986) 181 CA3d 213, 223, 226 CR 265, 270]

1) Exception following reversal on appeal and remand for retrial: When a judgment is vacated on appeal and the case is remanded for retrial, the trial court's order on the motion to strike or tax costs is simply preliminary to later proceedings (the retrial) and thus not directly appealable as an order after final judgment. [Barnes v. Litton Systems, Inc. (1994) 28 CA4th 681, 685, 33 CR2d 562, 565]

(3) Enforcement of costs award: The costs award is enforceable in the same manner as a money judgment. [CRC 27(d)(3); see Los Angeles Unified School Dist. v. Wilshire Center Marketplace (2001) 89 CA4th 1413, 1419, 108 CR2d 691, 695; Bank of Idaho v. Pine Avenue Associates (1982) 137 CA3d 5, 13, 186 CR 695, 700-701] And, the award bears interest from the date of taxing costs or expiration of the time for taxing. [Dalzell v. Kelly (1952) 115 CA2d 60, 62-63, 251 P2d 343, 344]

=> PRACTICE POINTER: Checks for costs on appeal should be made out to the parties and their counsel. (Counsel may have a lien for attorney fees and costs; see generally, Levin v. Gulf Ins. Group (1999) 69 CA4th 1282, 1285-1287, 82 CR2d 228, 229-230.)

2. Recovery of Appellate Attorney Fees: In limited situations, a prevailing party may be entitled to an award of attorney fees incurred on the appeal, by order of the appellate court or the trial court after remand.

Unless the appellate court orders otherwise, an award of appellate costs does not include appellate attorney fees or preclude a party from seeking them. [CRC 27(c)(2)] Rather, recovery of appellate attorney fees is governed by the following separate rules:

a. Authorization for recovery: As in trial court litigation, attorney fees on appeal are recoverable only if authorized by statute or by contract (but see also CCP § 1033.5(a)(10)(C)--attorney fees as recoverable costs of suit if authorized by 'law'). [Serrano v. Unruh (1982) 32 C3d 621, 637, 186 CR 754, 764; People ex rel. Cooper v. Mitchell Bros. Santa Ana Theater (1985) 165 CA3d 378, 387, 211 CR 501, 506 (statutory recovery); Security Pacific Nat'l Bank v. Adamo (1983) 142 CA3d 492, 498, 191 CR 134, 138 (contract recovery); also see generally, CCP § 1021]

(1) Statutory authority for trial court fees includes appellate fees: Statutory authorization for the recovery of attorney fees incurred in trial court proceedings necessarily includes attorney fees incurred on appeal ... unless the statute specifically provides otherwise. The statute need not expressly authorize attorney fees on appeal. [Morcos v. Board of Retirement of County of Los Angeles Employees' Retirement Ass'n (1990) 51 C3d 924, 927, 275 CR 187, 189; Imperial Bank v. Pim Electric, Inc. (1995) 33 CA4th 540, 557, 39 CR2d 432, 444 (citing text); see Del Cerro Mobile Estates v. Proffer (2001) 87 CA4th 943, 951, 105 CR2d 5, 10; Akins v. Enterprise Rent-A-Car Co. of San Francisco (2000) 79 CA4th 1127, 1134, 94 CR2d 448, 453]

(a) Compare--appellate fees precluded by statutory bar to trial court fees: Conversely, where, pursuant to statute, attorney fees are not recoverable in the trial court proceeding, they 'necessarily' are not awardable on appeal therefrom. [See Collins v. State Dept. of Transp. (2003) 114 CA4th 859, 871, 8 CR3d 132, 140--'Since we have concluded plaintiff was not entitled to an award of attorney's fees by the trial court (under CCP § § 437c(j) and 1021.5), plaintiff is not entitled to attorney's fees on appeal' (parentheses added); Imperial Bank v. Pim Electric, Inc., supra, 33 CA4th at 558, 39 CR2d at 444--attorney fees not awardable on appeal from judgment enforcement proceedings because applicable statute (CCP § 685.040) authorized award of fees incurred in enforcing judgment only if underlying judgment included fee award to judgment creditor pursuant to CCP § 1033.5(a)(10)(A) (contractual fee recovery) and underlying judgment in this case did not]

(2) Statutory abrogation of former exception for inverse condemnation cases: A special rule dating back to a pre-Morcos Cal. Supreme Court decision formerly withheld appellate attorney fees in inverse condemnation cases because the governing statute (CCP § 1036) provided only for prevailing party attorney fee recoveries at the trial level (this reasoning was at odds with the general rule that would have allowed appellate attorney fees because the statute did not expressly provide otherwise). [Holtz v. San Francisco Bay Area Rapid Transit Dist. (1976) 17 C3d 648, 658, 659, 131 CR 646, 653; see Marshall v. Department of Water & Power (1990) 219 CA3d 1124, 1150-1151, 268 CR 559, 575; Leaf v. City of San Mateo (1984) 150 CA3d 1184, 1190, 198 CR 447, 450, fn. 6]
The Holtz anomaly is now abrogated by an amendment to CCP § 1036 expressly authorizing an award of plaintiff's appellate costs and attorney fees 'in any appellate proceeding [in an inverse condemnation case] in which the plaintiff prevails on any issue in that proceeding.' [CCP § 1036 (brackets added); see also Stats. 1995, Ch. 181, § 2 (express statement of legislative intent to abrogate Holtz and conform § 1036 to Morcos general rule); and Gonzales v. ABC Happy Realty, Inc. (1997) 52 CA4th 391, 395, 60 CR2d 566, 569, fn. 4]

b. Award by appellate or superior court: Attorney fees recoverable on appeal (whether pursuant to statute or contract) generally may be requested from the appellate court while the appeal is pending or from the trial court after the remittitur has issued. Unless the appellate court otherwise orders, the trial court may entertain a request for appellate attorney fees notwithstanding the absence of specific direction from the appellate court. [See CRC 27(c)(2);

Harbour Landing-Dolfann, Ltd. v. Anderson (1996) 48 CA4th 260, 264-265, 55 CR2d 640, 643; see also CRC 870.2 (time-frame for filing trial court motion for appellate attorney fees)

(1) Issues determined by appellate court: A request for appellate attorney fees raises two issues: whether the requesting party is entitled to the award, and if so, what amount of fees should be awarded.

(a) Entitlement to fees, or deferral to trial court on entitlement and amount: When the award is requested from the appellate court, the court has two options (People ex rel. Cooper v. Mitchell Bros. Santa Ana Theater (1985) 165 CA3d 378, 387-388, 211 CR 501, 506-507):
• the appellate court can determine entitlement but remand the case to the trial court for a determination of the amount (Los Angeles Times v. Alameda Corridor Transp. Authority (2001) 88 CA4th 1381, 1393, 107 CR2d 29, 39; see also Neal v. Super.Ct. (Neal) (2001) 90 CA4th 22, 26-27, 108 CR2d 262, 265- 266--remand to family law court for attorney fee award to wife 'for having been dragged through this unnecessary excursion in the civil court'); or
• the appellate court can direct the trial court to determine both entitlement and amount on remand (Hammond v. Agran (2002) 99 CA4th 115, 120, 120 CR2d 646, 650; Marriage of Cheriton (2001) 92 CA4th 269, 320, 111 CR2d 755, 795).
Generally, when it reverses and remands for further proceedings, the appellate court will direct the trial court to determine if either party is entitled to prevailing party fees on the appeal and, if so, the amount of the award. Until a final resolution of the case, it cannot be determined who 'prevailed.' [See Moore v. Liu (1999) 69 CA4th 745, 754, 81 CR2d 807, 813; Lindenstadt v. Staff Builders, Inc. (1997) 55 CA4th 882, 894, 64 CR2d 484, 491, fn. 9--after reversal and remand, resolution of prevailing party fees on appeal 'must necessarily await the outcome of the proceedings on remand since, at this point, there is no 'prevailing party' in the case']

In any event, deeming the trial court to be in a better position to resolve related factual disputes, appellate courts rarely determine the amount to be awarded. [People ex rel. Cooper v. Mitchell Bros. Santa Ana Theater, supra, 165 CA3d at 387-388, 211 CR at 506-507; Akins v. Enterprise Rent-A-Car Co. of San Francisco (2000) 79 CA4th 1127, 1134, 94 CR2d 448, 453-- 'Although we have the power to appraise and fix attorney fees on appeal, we deem it the better practice to remand the cause to the trial court to determine the appropriate amount of such fees'; but see Roberts v. Brian (1973) 30 CA3d 427, 431, 106 CR 360, 363--appellate court determined both entitlement and amount]

1) Exception in original writ proceedings: Both entitlement to and amount of attorney fee awards in original writ proceedings in the court of appeal are determined by the appellate court. [See Cruz v. Super.Ct. (Ayromloo) (2004) 120 CA4th 175, 191, 14 CR3d 917, 928--'unless the parties are able to agree within 20 days as to the appropriate amount of costs and fees, the matter may be submitted to this court on affidavits']

(b) Directions to trial court barring attorney fee award: The appellate court can expressly preclude any attorney fee award by the trial court. [Encinitas Plaza Real v. Knight (1989) 209 CA3d 996, 1003-1004, 257 CR 646, 651; see CRC 27(c)(2)]

Also, the court of appeal may occasionally both decline to decide an appellate attorney fee request and direct the trial court to refrain from acting on the request upon remand. E.g., where the question of entitlement is still pending in a related appeal, it is appropriate to direct the trial court to hold an appellate attorney fee request in abeyance until the remittitur has been filed in the related appeal because the decision in the related appeal will be 'law of the case' on the entitlement question (below). [See Marriage of Colvin (1992) 2 CA4th 1570, 1582, 4 CR2d 323, 330-331]

(c) Appellate court entitlement decision binding on trial court: Under the doctrine of 'law of the case', any determination of entitlement by the appellate court is binding on the trial court on remand. [Benson v. Greitzer (1990) 220 CA3d 11, 14, 269 CR 201, 202-203]

(2) Appellate opinion silent as to attorney fees: If the appellate court's opinion is silent on the subject of appellate attorney fees--i.e., '[u]nless the courts orders otherwise'--the appellate judgment neither includes attorney fees on appeal nor precludes a party from seeking them, and the issue of entitlement to fees on appeal will be determined on remand by motion made in the trial court pursuant to CRC 870.2. [CRC 27(c)(2); see Gale v. Super.Ct. (Gale) (2004) 122 CA4th 1388, 1399, 19 CR3d 554, 561, fn. 7 (as modified on denial of rhng., 2004 WL 2368028)]

=> PRACTICE POINTER: There are no established guidelines for determining whether to seek attorney fees in the appellate court or the trial court. As explained, a request in either court will suffice. However, since appellate courts virtually always refer the question of amount to the trial court (and often do the same with entitlement issues), counsel may prefer to seek the fees in the trial court in the first instance ... unless there is a particular reason why the appellate court should determine the issues (e.g., entitlement is closely related to the decision on the merits or there has been misconduct on appeal by the opposing party).

c. Procedure for recovery

(1) Requesting fees in appellate court: A fee request in the appellate court may be made either by motion included in the appellate brief or by separate formal motion). However, a 'passing' request for appellate attorney fees in a brief, without authority, argument or analysis, will most likely be denied. [See Banning v. Newdow (2004) 119 CA4th 438, 458-459, 14 CR3d 447, 461]
Compare--fees as sanctions: When attorney fees are sought as appellate sanctions, the applicant must proceed by formal motion. [CRC 27(e)(1)]

(2) Requesting fees in trial court

(a) Costs memorandum or motion for statutory fees: A request in the trial court for attorney fees authorized by statute may be made in the memorandum of costs (along with a claim for other costs) after issuance of the remittitur, supported by affidavit (or declaration under penalty of perjury). [CCP § 1033.5(c)(5)]

Alternatively, the request may be made by noticed motion (CCP § 1033.5(c)(5)); but it will usually be more efficient to include the request in the costs memorandum.

1) Impact of CRC 870.2? CRC 870.2 prescribes a noticed motion procedure whether the claim is for statutory attorney fees or fees pursuant to contract (unless the fee entitlement is fixed by formula without the need for court determination. This might be viewed as conflicting with CCP § 1033.5(c) (5) (which authorizes the claimant to proceed by either memorandum of costs or noticed motion, above). However, CRC 870.2 expressly states that it applies '[e]xcept as otherwise provided by statute ... ' (CRC 870.2(a)); arguably, this language preserves the claimant's option to proceed by costs memorandum pursuant to CCP § 1033.5(c)(5) ... unless another statute (on which the fee claim is based) prescribes the noticed motion procedure (see, e.g., CCP § 1021.5, requiring a 'motion' for 'private attorney general' fees).

(b) Noticed motion for statutory or contractual fees: A request in the trial court for attorney fees pursuant to contract (including CC § 1717 fees.) must be made by noticed motion, unless the parties stipulate otherwise. And, as stated above, fees pursuant to statute 'may' be requested by noticed motion. [CCP § 1033.5(c)(5)]

1) Costs memorandum for contract fees not sufficient: Legislative history indicates CCP § 1033.5(c)(5) is meant to make a noticed motion the exclusive procedure for claiming contractual attorney fees as costs (except where the parties stipulate otherwise) and to override prior authority to the effect that contractual attorney fees were awardable by costs memorandum alone (see Stats. 1990, Ch. 804, § 2).
'This declaration of legislative intent could not be more clear. Contractual attorney fees are to be claimed 'only' by noticed motion, not by the mere filing of a memorandum of costs.' [Russell v. Trans Pac. Group (1993) 19 CA4th 1717, 1725-1728, 24 CR2d 274, 279-281--noticed motion requirement is mandatory and trial court has no discretion to disregard noncompliance but may grant CCP § 473 relief; Lee v. Wells Fargo Bank, N.A. (2001) 88 CA4th 1187, 1198, 106 CR2d 726, 735; see also Allstate Ins. Co. v. Loo (1996) 46 CA4th 1794, 1797-1798, 54 CR2d 541, 542--contractual attorney fees need not be pleaded as item of damages since CCP § 1033.5 makes recovery a costs item and prescribes noticed motion procedure]

a) Exception where fees fixed by formula: If the underlying contract fixes the amount of recoverable fees without the necessity of a court determination, 'the fees shall be claimed in the memorandum of costs.' [CRC 870.2(e) (emphasis added)]

Thus, where the issues of entitlement and amount are predetermined by the contract, the costs recovery procedure applies: The fee claim must be included in a timely-filed memorandum of costs pursuant to CRC 27(d)(1).

2) Time-frame: The timing rules, below, apply when the trial court determines entitlement to attorney fees, the amount of the fees, or both; and whether the court makes that determination because the contract or statute refers to 'reasonable' fees, requires a determination of the prevailing party, 'or for other reasons.' [CRC 870.2(a)]

a) Fees on interim appeal (before trial court judgment): A notice of motion to claim attorney fees for services up to and including the rendition of judgment in the trial court--including attorney fees on appeal before rendition of the trial court judgment (e.g., for services on appeal from an appealable prejudgment order or on pretrial writ review of a ruling)--must be served and filed within the time for filing a notice of appeal under CRC 2 and 3. [CRC 870.2(b)(1)]

1/ Including fees on postjudgment appeal when appellate court reverses and remands: 'Before the rendition of judgment in the trial court' as used by CRC 870.2(b)(1) refers to the ultimate trial court judgment. Thus, the subdivision (b)(1) deadline applies when appellate attorney fees are incurred after rendition of a trial court judgment that is reversed with a remand for further proceedings entailing the entry of a new trial court judgment. [Yuba Cypress Housing Partners, Ltd. v. Area Developers (2002) 98 CA4th 1077, 1085, 120 CR2d 273, 280]

2/ Stipulated extension: By stipulation of the parties filed before expiration of the appeal deadline, the CRC 870.2(b)(1) deadline may be extended until (i) 60 days after expiration of the time for filing a notice of appeal, or (ii) if a notice of appeal is filed, until the time within which a memorandum of costs must be served and filed under CRC 27(d)(1). [CRC 870.2(b) (2)]

3/ Court-ordered extension: Also, for good cause, the trial court may extend the deadline in the absence of a stipulation or for a longer period than allowed by stipulation. [CRC 870.2(d)]

4/ Effect of premature motion: Because Rule 870.2(b)(1) measures the time-frame with reference to the time for filing a notice of appeal, a motion for appellate attorney fees incurred before rendition of the trial court judgment may be timely even if filed prematurely before entry of the ultimate trial court judgment--i.e., it is treated the same as a premature notice of appeal and thus is ordinarily valid (unless the opposing party is misled or prejudiced by the premature filing). [Yuba Cypress Housing Partners, Ltd. v. Area Developers, supra, 98 CA4th at 1086, 120 CR2d at 280-281]

b) Fees on appeal after trial court judgment: A notice of motion to claim contractual (or statutory) attorney fees on appeal--other than fees for services on appeal before rendition of the trial court judgment - - must be served and filed within the time for serving and filing the memorandum of costs under CRC 27(d)(1)--i.e., within 40 days after the appellate court clerk mails notice of issuance of the remittitur. [CRC 870.2(c)(1)]

1/ Stipulated extension: The parties may extend the 40-day deadline for up to an additional 60 days by stipulation filed before expiration of the 40-day deadline. [CRC 870.2(c)(2)]

2/ Court-ordered extension: And, for good cause, the trial judge may extend the deadline in the absence of a stipulation or for a longer period than allowed by stipulation. [CRC 870.2(d)]

3/ Compare--judgment reversed and matter remanded: The subdivision (b)(1) timing rule for claiming fees incurred on an interim appeal applies (not the subdivision (c)(1) deadline) when the appellate court reverses and remands for further proceedings entailing the entry of a new judgment. [Yuba Cypress Housing Partners, Ltd. v. Area Developers (2002) 98 CA4th 1077, 1085, 120 CR2d 273, 280]

d. Application: The following illustrate some of the commonly-encountered statutory bases for appellate attorney fee awards:

(1) CC § 1717--contract provision for fees: In any action on a contract where the contract specifically provides attorney fees and costs incurred to enforce the contract shall be awarded either to one of the parties or the prevailing party, the party determined to be the party prevailing on the contract (whether or not specified in the contract) is entitled to reasonable attorney fees in addition to other costs. [CC § 1717(a)]

(a) Reciprocal right in prevailing party: Even if the contract limits the fee recovery to only one of the contracting parties, as a matter of law it is interpreted as authorizing a fee award to whichever party prevails in the action on the contract: i.e., CC § 1717 effectively transforms a 'unilateral contract right to attorney's fees into a reciprocal provision.' [Smith v. Krueger (1983) 150 CA3d 752, 756, 198 CR 174, 176; see generally, PLCM Group, Inc. v. Drexler (2000) 22 C4th 1084, 1090-1091, 95 CR2d 198, 202-203]

1) Determining 'prevailing party': The 'prevailing party' under § 1717 ordinarily is the party who 'recovered a greater relief in the action on the contract.' However, the court may also determine there is no party prevailing on the contract for purposes of § 1717. [CC § 1717(b)(1); see also CC § 1717(b)(2) (other 'prevailing party' rules); Snyder v. Marcus & Millichap (1996) 46 CA4th 1099, 1103-1104, 54 CR2d 268, 271--party who succeeds on partial appeal in reducing damages judgment is not 'prevailing party' entitled to § 1717 fees in light of substantial net judgment against it]

2) Exception in pro per cases: The 'attorney fees' recoverable pursuant to CC § 1717 refer to the sum a litigant 'actually pays or becomes liable to pay for legal representation.' When a party litigating in pro per (whether a nonattorney or attorney) neither pays nor becomes liable to pay attorney fees, fees are not recoverable under CC § 1717. [Trope v. Katz (1995) 11 C4th 274, 292, 45 CR2d 241, 251 (pro per attorney); Jacobson v. Simmons Real Estate (1994) 23 CA4th 1285, 1292, 28 CR2d 699, 704 (pro per nonattorney); compare PLCM Group, Inc. v. Drexler (2000) 22 C4th 1084, 1096- 1097, 95 CR2d 198, 207, fn. 5 (distinguishing Trope rule as 'not intended to imply that [§ 1717] fees can be recovered only when, and to the extent that, a litigant incurs fees on a fee-for-service basis' (brackets added))--§ 1717 fees awardable for services rendered by in-house counsel; see also Mix v. Tumanjan Develop. Corp. (2002) 102 CA4th 1318, 1321, 126 CR2d 267, 269-- successful pro per litigant in contract action can recover § 1717 fees for legal services of assisting counsel even though they did not appear as attorneys of record]

(b) Any 'action on contract': Section 1717 fees are awardable in any action 'on a contract' containing a fee recovery provision. Thus, § 1717 fees may even be awarded to a party who successfully defends the contract action (and thus prevails) on grounds that the contract sued upon is 'inapplicable, invalid, unenforceable or nonexistent,' provided the other party would have been entitled to recover attorney fees under the alleged contract had he or she prevailed. [Hsu v. Abbara (1995) 9 C4th 863, 870-871, 39 CR2d 824, 828-829 (emphasis added); Korech v. Hornwood (1997) 58 CA4th 1412, 1418-1419, 68 CR2d 637, 641]
Likewise, § 1717 fees are awardable to a party who prevails on a contract cause of action by successfully defending against a tort cross-complaint challenging the underlying validity of the contractual obligation (e.g., on the ground of fraud). There is no apportionment between the prevailing party's 'offensive' and 'defensive' fees where the defense against the noncontractual (tort) claim 'is necessary to succeed on the contractual claim.' [Siligo v. Castellucci (1994) 21 CA4th 873, 879-880, 26 CR2d 439, 443; see also Korech v. Hornwood, supra, 58 CA4th at 1422, 68 CR2d at 643- 644--attorney fees need not be apportioned when incurred for representation on issue common to both contract and noncontract claims]

1) Effect of joining noncontract claim: Under the above rules, a party who has joined both contract and tort or other noncontract claims and wins only on the noncontract causes of action may end up paying attorney fees to the opposing party who otherwise lost the lawsuit.

Although plaintiff succeeds on a noncontract claim, defendant is the 'prevailing party' entitled to CC § 1717 fees if he or she defeated plaintiff's contract claim (provided plaintiff would have been allowed § 1717 fees had he or she prevailed on the contract cause of action, above). [Korech v. Hornwood, supra, 58 CA4th at 1419-1422, 68 CR2d at 641-643-- despite winning mechanic's lien claim, plaintiffs had to pay § 1717 fees to defendants who prevailed on plaintiffs' contract claim by proving they were not parties to contract sued upon]



FORM : MEMORANDUM OF COSTS ON APPEAL


:
:
:
:
NAME, ADDRESS, AND TELEPHONE NUMBER :
OF ATTORNEY(S) :
................................... :
................................... :
................................... :
................................... :
:
ATTORNEYS(S) FOR .................. :
:
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SUPERIOR COURT OF CALIFORNIA, COUNTY OF ..........

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.................................., : CASE NUMBER
:
PLAINTIFF(S) : ..........
: -----------------------------
vs. :
:
.................................., : MEMORANDUM OF COSTS ON APPEAL
: CLAIMED BY ..................
DEFENDANT(S) : AGAINST .....................

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1. Filing fees
2. Preparation of record on appeal
3. Printing of briefs ..................... $ 811.00
4. Production of additional evidence
5. Notary fees
a.
b.
c.
d.
6. Expenses of service
a.
b.
c.
d.
7. Transmission and filing of record,
briefs, and other papers
8. Premium on any surety bond on appeal ... --------
Total $ 811.00
Costs taxed by order of Court


STATE OF CALIFORNIA, County of ..........

I am the attorney of record for the prevailing party who claims costs herein; to the best of my knowledge and belief the items in the within memorandum of costs on appeal are correct; and that said costs have been necessarily incurred.

DATED: .................... at ..............., California


I certify (or declare) under penalty of perjury
under the laws of the State of California
that the foregoing is true and correct.


---------------------------------------
(Signature)

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