Fourth District, Division 3 So Holds in Unpublished Decision.
The lesson from the next case for litigants seeking attorney’s fees is to make sure your time for bringing the fee petition (called “fees on fees,” and usually compensable) is made timely before the trial court hearing the fee motion. If you wait and try to obtain later (after winning later appeals of the fees decision), you are probably out of luck.
In Epicor Software Corp. v. The Imagery Group, Case No. G041333) (4th Dist., Div. 3 Aug. 31, 2009) (unpublished), defendant/cross-complainant was awarded $14,849 in costs and $141,363.80 in attorney’s fees by the trial court after defensing plaintiff in a jury trial. Plaintiff appealed the costs/fee award, but it was affirmed. Plaintiff then filed a second fee motion seeking $50,000 more for winning on appeal, but also included $16,537.50 in fees relating to preparation of the original fee motion. The trial court disallowed the $16,537.50, but did award $30,863 in fees to plaintiff on the second motion.
Plaintiff, apparently unhappy, appealed. It lost in a 3-0 decision authored by Acting Presiding Justice O’Leary.
The problem with Plaintiff’s position was that it should have sought to recoup “fees on fees” compensation from the trial judge when the original motion was brought. Justice O’Leary found it was “common practice for attorneys to file supplemental declarations covering such fees and/or to estimate the reasonable fees that will be incurred in replying to opposition and attending the hearing on the motion” so that the request is timely heard by the trial judge. (Slip Opn., p. 4.) This result also followed from the deadlines of California Rule of Court 3.1702, which requires that postjudgment fees be sought within the time for filing the first appeal of a judgment and that later appellate fees won for appellate work had to be filed within 40 days after remittitur issuance.
So, if you want to recoup “fees on fees,” put the issue in front of the trial judge at the time of the hearing on the original fees motion.
Miss Ellla Nachman with normal sized alarm clock in her hand. Library of Congress.