Second District, Division 5 Follows the Rule … But Still Provide Specificity!
The next case has a little something for everybody, principally the type of fee substantiation that will pass muster in California state fee proceedings.
In Cruz v. Martin, Case No. B209880 (2d Dist., Div. 5 June 4, 2009) (unpublished), plaintiff won a restraining order against defendant, and was awarded attorney’s fees of $3,500 as the prevailing party. Defendant appealed on multiple grounds, but the fee award was affirmed on appeal.
Relying on language from Crespin v. Shewry, 125 Cal.App.4th 259, 217 (2004) (“fee motions must be based on detailed time records, not on the memories of the attorneys involved”), defendant argued the trial court was powerless to award fees because the billing records were not attached to the original fee motion. This argument did not go very far, with the appellate panel citing authority indicating that there is no legal requirement in California state cases that billing statements be submitted to support a fee claim. Rather, an attorney’s testimony as to the number of hours worked is sufficient evidence, even in the absence of detailed time records. (Mardirossian & Associates, Inc. v. Ersoff, 153 Cal.App.4th 257, 269 (2007); Steiny & Co. v. California Elec. Supply Co., 79 Cal.App.4th 285, 293 (2000); Martino v. Denevi, 182 Cal.App.3d 553, 559 (1986).)
(BLOG OBSERVATION—It is still preferable to submit detailed billing records (even if some entries need to be redacted. Even in Cruz, plaintiff did submit detailed billing records among her fee motion reply papers.)
Cruz is also instructive on two other issues:
- Appellate review—Make sure you order a reporter’s transcript of germane oral proceedings; without them, it may be difficult for the reviewing court to determine if a trial court abused its discretion in awarding fees.
- Defective service—You may forfeit an argument that there was defective service of a motion if you appear at the hearing and argue on the merits, as Justice Mosk found in a short concurring opinion. (Lacey v. Bertone, 33 Cal.2d 649, 651-652 (1949); Tate v. Superior Court, 45 Cal.App.3d 925, 930 (1975).)