Attorney’s Fees in California

 

Questions Presented

  1. May a Motion for Attorney’s Fees in California include the time it took the attorney to actually prepare the Motion for Fees, the Reply and her appearance at the hearing?
  2. Is travel time, as the attorney is located four hours away from the court and client, recoverable under a Motion for Attorney’s Fees under California law?

Short Answers

  1. The court in its discretion generally allows a motion for attorney fees, which may include the time taken by the attorney in preparing the motion, replying to the objections and appearing for hearing.
  2. Travel expenses are generally recoverable in California, provided those expenses were incurred reasonably and were in connection with the case. Ultimately, it is the discretion of the court.

Discussion

  1. MOTION FOR ATTORNEY FEES

In California, the right to claim Attorney’s fees flows from, Cal Code Civ Proc § 1033.5 (2006).

  • 1033.5(a)(10) reads in part:

Items allowable as costs

(a) The following items are allowable as costs under Section 1032:

(1) Filing, motion, and Jury fees.

(2) Juror food and lodging while they are kept together during trial and after the jury retires for deliberation.

(3) Taking, videotaping, and transcribing necessary depositions including an original and one copy of those taken by the claimant and one copy of depositions taken by the party against whom costs are allowed, and travel expenses to attend depositions….

(10) Attorney fees, when authorized by any of the following:

(A) Contract.

(B) Statute.

(C) Law.

5) When any statute of this state refers to the award of “costs and attorney’s fees,” attorney’s fees are an item and component of the costs to be awarded and are allowable as costs pursuant to subparagraph (B) of paragraph (10) of subdivision (a). Any claim not based upon the court’s established schedule of attorney’s fees for actions on a contract shall bear the burden of proof. Attorney’s fees allowable as costs pursuant to subparagraph (B) of paragraph (10) of subdivision (a) may be fixed as follows: (A) upon a noticed motion, (B) at the time a statement of decision is rendered, (C) upon application supported by affidavit made concurrently with a claim for other costs, or (D) upon entry of default judgment. Attorney’s fees allowable as costs pursuant to subparagraph (A) or (C) of paragraph (10) of subdivision (a) shall be fixed either upon a noticed motion or upon entry of a default judgment, unless otherwise provided by stipulation of the parties.

Although not expressly provided for, a motion for attorney fees may include the time it took the attorney to prepare the motion for fees, the reply and appearance at the hearing. It is ultimately left to the discretion of the Court. Courts have generally discussed this issue in the light of its reasonableness to the amount claimed.

In Gens v. Ferrell, 2005 U.S. Dist. LEXIS 39115 (2005), the issue of reasonableness of attorney fees was discussed by the Federal District Court. The court observed that reasonableness of attorney fees is determined by calculating the “lodestar”. The “lodestar” is calculated by multiplying the number of hours reasonably expended on litigation by a reasonable hourly rate. To determine whether these hourly rates are reasonable, the court considers the rate prevailing in the community for similar work performed by attorneys of comparable skill, experience, and reputation. The applicant bears the burden of documenting the appropriate hours expended in the litigation and must submit evidence in support of those hours work. The Court has the discretion to adjust these hours if it finds the documentation to be inadequate, or the hours to be duplicative, excessive or unnecessary. The Plaintiff contended that the tasks associated with the motions to remand and for attorneys’ fees fell into five sub-categories: 1) pre-motion research work; 2) drafting of motions work; 3) additional work caused by removal; 4) opposition and reply papers; and, 5) hearing on motions and supplemental filings. As far as the pre motion research work was concerned, there was a subsequent change in the number of hours and a consequent increase in fee which was different from what was filed initially. The court rejected this subsequent increase while granting the earlier fee. As far as the opposition and reply papers were concerned that court came to a conclusion that not much work was involved which warranted a greater award than for the original motions and hence reduced the claim by half. As far as the hearing on the motions was concerned, the court granted the whole amount.

In Hemmings v. Tidyman’s Inc, 285 F.3d 1174 (2002), the District Court awarded attorneys fees and costs, with the exception of deposition costs and the costs for assembling the affidavit in support of attorney’s fees. The plaintiffs contended that the district court abused its discretion by excluding the costs for depositions, and the costs for preparing the attorneys fees motion, from the fee award. Normally, courts do not include hours which are excessive, redundant, or otherwise unnecessary. The Ninth Circuit Court held that the district court did not abuse its discretion by denying costs for depositions or preparation of the motion for attorney’s fees.

In Erickson v. R.E.M. Concepts Inc., 126 Cal. App. 4th 1073 (2005), after losing the jury trial in this construction defect litigation, plaintiffs (Erickson) appealed the portion of the amended judgment awarding attorney fees to defendant and cross-defendant (R.E.M.) under Civil Code section 1717. Under the assigned cross-complaints, R.E.M. filed a post trial motion for attorney fees and defense costs against Erickson. R.E.M. sought attorney fees and costs in the total amount of $114,618.96, consisting of (1) $54,312.50 attorney fees incurred through August 20, 2003, (2) $ 937.50 attorney fees related to R.E.M.’s motion for attorney fees and costs, and (3) $59,368.96 costs to the extent not separately awarded. The total attorney fees requested by R.E.M. did not include the $625 attorney fees it identified as clearly associated only with its defense against Erickson’s complaint and not related to its defense against the cross-complaints. At the hearing on R.E.M.’s motion for attorney fees and costs, the court directed that R.E.M. submit evidence of the attorney fees it incurred solely in defense of the assigned cross-complaints. In response to the court’s directive, R.E.M. presented evidence that $9,901.75 of the requested attorney fees related exclusively to its defense of the cross-complaints. The Court issued a minute order granting R.E.M’s Motion for Attorney’s fees and cost. It included the requested $ 114,618.96 attorney fees, plus an additional $2,062.50 for briefing and hearings related to R.E.M.’s motion for attorney fees. Aggrieved by this order Erickson filed a notice of appeal.  On this issue whether the trial court abused it power in granting the attorney’s fees the Appellate Court held:

Apportionment of a fee award between fees incurred on a contract cause of action and those incurred on other causes of action is within the trial court’s discretion … .” (Abdallah v. United Savings Bank (1996) 43 Cal.App.4th 1101, 1111 [51 Cal. Rptr. 2d 286] (Abdallah); accord, San Dieguito Partnership v. San Dieguito River Valley Regional etc. Authority (1998)61 Cal.App.4th 910, 920 [72 Cal. Rptr. 2d 91] (San Dieguito) [“ ‘A trial court’s exercise of discretion is abused only when its ruling ” ‘exceeds the bounds of reason, all of the circumstances before it being considered’

Id at 1083 emphasis added

 In Exxess Electronixx V Heger Realty Corp., 64 Cal. App. 4th 698 (1998), Heger Realty filed a motion for attorneys’ fees. The trial court granted the motion and awarded Heger Realty $36,421.50 in attorneys’ fees.  The fee amount listed on the cost memorandum was lower than the actual award because the memorandum did not include the fees subsequently incurred by Heger Realty in opposing Exxess’s motion to tax costs and in bringing the motion for attorneys’ fees.

The motion for attorney fees may include the time taken by the attorney in preparing the motion, replying to the objections and appearing for hearing. Although there is no specific provision allowing the inclusion of the above items in attorney fees, there is no provision prohibiting the same. Courts have generally allowed for such recovery. Ultimately, it is within the discretionary power of the Court. The court while exercising its discretion considers factors such as time.

  1. TRAVEL EXPENSES

Travel expenses incurred by the attorney are generally recoverable under Cal. Civ. Proc. Code § 1033.5. In considering the travel expenses of the attorney, the courts test the reasonableness of the expense.

In, Thon v. Thomson, 29 Cal. App.4th 1546 (1994), Plaintiffs appealed a post judgment order of the trial court awarding defendants, Ronald Thompson and Jack Wireman their costs, including travel and lodging expenses incurred by out-of-county counsel in attending depositions. As the prevailing party, Defendants had sought for costs. Plaintiffs moved to strike requests for deposition costs which included charter air travel from Bakersfield to San Diego, hotel bills incurred in San Diego and rental car costs. The Appellate court held that, under Cal. Civ. Proc. Code § 1033.5, a prevailing party was entitled to costs, if it was reasonably necessary to the litigation and reasonable in amount. The court stated that determination of whether a cost was reasonable was within the trial court’s discretion. The Court noted that defendants’ attorney’s charter flights were not reasonably necessary, as they could have taken commercial flights. The court concluded that the trial court erred in not deducting costs for the difference between the charter and commercial flights of defendants’ attorneys.

The Court further held:

Determination of whether a cost is reasonable is within the trial court’s discretion. (Ladas v. California State Auto. Assn. (1993) 19 Cal. App. 4th 761, 774 [23 Cal. Rptr. 2d 810].) Plaintiffs ask us to read into the statute a provision it does not contain, i.e., limitation of travel expenses incurred in taking a deposition to local travel. We may not construe a statute to add a restriction it does not contain. (Rappenecker v. Sea-Land Services, Inc. (1979) 93 Cal. App. 3d 256, 263 [155 Cal. Rptr. 516].) Section 1033.5, subdivision (a)(3) does not limit reimbursement for deposition travel to travel by attorneys practicing in the court’s jurisdiction. The trial court did not err in awarding costs incurred by Bakersfield attorneys to attend depositions in San Diego County. Id at 1548.

In, Marocca v.Ford Motor Co., 7 Cal. App. 3d 84 (1970), the Defendant manufacturer appealed a judgment from the Superior Court of Sonoma County (California) awarding plaintiff injured damages for injuries to his left arm in personal injury action. By appropriate motion, the defendant sought to strike from the plaintiff’s cost bill sums claimed for the travel expenses of plaintiff’s attorneys in connection with depositions. It was stipulated at the hearing that a sum of $68 had been included in the cost bill for travel expenses and parking fees incurred in attending from Santa Rosa, where the case was pending. The Appellate court held that, the trial court did not abuse its discretion in determining the necessity of travel expenses of plaintiff’s attorney included in plaintiff’s cost bill by failing to strike such costs contested on defendant’s motion to tax costs.

Therefore, even though travel expenses incurred by the attorney are recoverable, it ultimately falls within the discretion of the court.

Conclusion

The motion for attorney fees may include the time taken by the attorney in preparing the motion, replying to the objections and appearing for hearing. Although there is no specific provision allowing the inclusion of these items, there is no provision prohibiting the same. Courts have generally allowed for such recovery. Ultimately, courts use their discretionary powers to allow such recovery. The court while exercising its discretion considers factors like time and other related factors. Travel expenses are generally recoverable in California, provided those expenses were incurred reasonably and was in connection with the case. Therefore, even though travel expenses incurred by the attorney are recoverable, it is ultimately, the discretion of the court whether or not to grant it.