Answer: No Case On The Issue We Are Aware Of, But We Will Give Our Guess.
A blog follower asked us if a small claims prevailing party can collect legal consultation expenses as “cost of the action” after prevailing—an apparent claim often made by winning small claims litigants.
We could not locate any published or unpublished appellate decision on point. However, our guess would be the answer is a “no.”
CCP § 1116.610(g)(1) provides: “The prevailing party is entitled to the costs of the action, including the costs of serving the order for the appearance of the defendant.” However, nothing in the scheme specifically defines “costs of the action,” with many small claim litigants (although not represented at the hearing by counsel, which is not allowed, but who can consult with attorneys in connection with the small claims suit) contending that incurred attorney consulting expenses are recoverable under this provision.
Proponents of this view will point to Resolution 13-02-2009 of the Conference of Delegates of the California Bar Association which expressly adopted a recommendation that (g)(1) be amended to expressly exclude attorney’s fees from the scope of this subsection.
We would argue that the clarification was unnecessary because other provisions of the small claims statutory scheme make clear that attorney’s fees are only recoverable in these specified circumstances: (1) fees and costs up to $150 actually/reasonably incurred in connection with a de novo appeal to the superior court (§ 116.780(c)); (2) fees and costs up to $1,000 actually/reasonably incurred in connection with a bad-faith de novo appeal to the superior court (§ 116.790); and (3) post-judgment enforcement costs to a prevailing party (§ 116.820(c)). Corroborative support for our view comes from two sources: (1) California Department of Consumer Affairs’ Small Claims Court Practical Guide [“Except in rare instances, fees charged by the attorney for private assistance are not recoverable as court costs or damages” (emphasis in original)]; and (2) California Judges Benchguide No. 34 – Small Claims Court (2013 revision) [listing recoverable costs as follows: service of process – yes; statutory witness fees – yes; expert witness fees – no, unless court appointed; investigation – no; costs of enforcing judgment – yes, citing § 116.820(c))].
The big one here is post-judgment enforcement costs which can, when involving either contractual or statutory attorney’s fees, allow for augmentation to include fees incurred in enforcing a judgment under the right circumstances. (See our June 18, 2013 post on County of Alameda v. Ottavich.)