Here, Prevailing Party Sought CCP § 128.5 Sanctions, Such That Fee Request Proper In Responding Papers—No Notice Of Motion Under Other Provisions Required.
Meraz v. Coleman, Case No. B262725 (2d Dist., Div. 8 Mar. 3, 2016) (unpublished) illustrates that some successful fee awards may well depend upon the manner in which the fee requests procedurally are postured.
In this one, a defendant successfully obtained a civil harassment restraining order against a next-door neighbor relating to a construction project dispute. Defendant also successfully resisted a motion for rehearing and reconsideration by the nonprevailing plaintiff, with defendant seeking CCP § 128.5 fees in his responding papers. The trial judge obliged, denying the reconsideration request and awarding defendant $2,000 in fees.
The opposite side appealed, claiming that defendant had to bring a notice of motion for fees under CCP § 527.6(r)’s fee-shifting statute in the civil harassment context. The appellate court disagreed. Here, the request was under CCP § 128.5, which allows a fee request to be made in responding papers by the defendant—which was done. No separate notice of motion needed to be brought under a different statutory provision given that the defendant brought a fee request under a provision saying it could be raised through opposition papers. Fee award affirmed.