Costs—CEQA Record Preparation: North County Advocates v. City of Carlsbad, Case No. D066488 (4th Dist., Div. 1 Sept. 10, 2015) (Unpublished).
In this first case, the appellate court reversed and remanded a costs award in favor of City in a costs award with respect to certain record preparation costs. The takeaways here are that a City must show that a supplemental record was really needed where the petitioner decides to prepare the record and it is incomplete. But there is a further wrinkle, the City must distinguish between costs to prepare the supplemental record for incompleteness (which are recoverable) and costs to review the record for accuracy/completeness (which are not recoverable). City did not do that for certain subcategories, so a remand was necessary.
Section 1717—Eldridge v. Village Trailer Park, Inc., Case No. B252841 (2d Dist., Div. 3 Sept. 10, 2015) (Unpublished).
This second case involved a situation where a lease did have a fees clause but the settlement agreement between the parties did not. Nevertheless, the lower court did award plaintiff $146,970 out of a requested $325,680 in attorney’s fees based on the theory that the lease and settlement agreement had to be construed in tandem as integrated agreements. The appellate court reversed, determining that the settlement agreement was truly divisible from the lease—unlike a situation where an agreement and invoices between merchants are construed together.
Appealability/Deadlines—De Rogatis v. Shainsky, Case No. B254024 (2d Dist., Div. 5 Sept. 10, 2015) (Unpublished).
The last case of this trio was a situation where plaintiffs did not appeal a subsequent post-judgment order awarding expert witness fees. (No insubstantial issue, because $114,857.54 was the costs award.) Plaintiffs argued that no separate appeal was necessary, except from the judgment, because the court incorporated its award of expert fees into the blank space for costs in the existing judgment. This theory did not persuade on appeal because the entitlement to the post-judgment fees was not adjudicated through the original judgment, but in a separate proceeding. The failure to separately appeal was fatal, which leads us to again counsel everyone this way—separately appeal adverse costs/fee awards, no matter what happened before unless you are dealing with unique SLAPP awards (which you can learn about by going to our home page sidebar under “Cases: SLAPP”). Still, appeal the judgment and separately appeal the costs/fee awards because you cannot go wrong on most cases.