Second District, Division 3 Rebuffs Contrary Technical Argument.
In Brownstein v. Smith, Case No. B205864 (2d Dist., Div. 3 July 1, 2009), plaintiff lost a condominium dispute against other condo owners arising out of CC&Rs. Defendants were entitled to seek fees under Civil Code section 1354(a), a fee-shifting provision applying to parties seeking to successfully enforce CC&Rs. Defendants filed a motion seeking to recover $171,611.11 in fees and costs against plaintiff, with the bulk ($162,722.14) being for fees. The trial court eventually awarded defendants fees and costs of $161,223.74.
The miffed plaintiff appealed, primarily arguing that defendants were precluded from recovering fees because they failed to file a costs memorandum in which fees were requested.
This did not go very far. The appellate panel found that the proper method to recovery attorney’s fees as an item of costs is to file a noticed motion. (Chinn v. KMR Property Management, 166 Cal.App.4th 175, 194 (2008); Code Civ. Proc., § 1033.5(c)(5).) The trial court award of fees was affirmed, and the appellate court remanded so that defendants could seek recovery of appellate fees against the unsuccessful plaintiff.