Reason Was Failure to File a Noticed Motion or Submit Costs Memo With an Affidavit.
Arth v. Raine, Case No. C071303 (3d Dist. Nov. 25, 2014) (unpublished) is a somber reminder to follow Code of Civil Procedure section 1033.5 dictates when seeking attorney’s and paralegal fees under statutory fee-shifting provisions.
Here, a prevailing party was awarded discretionary attorney’s fees, paralegal fees, and costs totaling $15,449.06 under fee-shifting provisions of the Brown Act (Government Code section 54960.5) and the Political Reform Act of 1974 (Government Code section 91003). However, all but a small portion of the costs award was salvaged after the losing party substantially obtained a reversal on appeal.
The reason was that the prevailing party had not properly followed the procedure for requesting attorney’s and paralegal fees under CCP § 1033.5. Prevailing party had only filed a standard costs memorandum, but section 1033.5 requires a noticed motion (not done) or a costs memo accompanied by a concurrently filed affidavit (no affidavit was filed). The appellate court found that this was fatal to the fee recovery, given that a costs memo with an attorney attestation did not suffice to satisfy the affidavit requirement. (The Court of Appeal also observed that paralegal fees are the same as attorney’s fees as far as complying with section 1033.5 requirements.)
However, not all was lost. Losing party challenged a $90 “CourtCall” expense, but that challenge was rejected because losing party waived it by not raising the argument in his motion to tax costs. So, in the end, prevailing party ended up with $645 in costs, rather than the previous more beefy costs award including attorney’s and paralegal fees.