Memorandum of Costs: Not Required for Fee Award Under Civil Code 1717

  Must a party, seeking an award of contractual attorney fees pursuant to Civil Code section 1717, also file a timely memorandum of costs? No, writes the court in Kaufman v. Diskeeper Corporaton. The only requirement is that the party file a timely noticed motion. That motion must be served and filed within the time for filing a notice of appeal pursuant to California Rules of Court, Rule 3.1702(b)(1).

  The rule is different when attorney fees are fixed by formula without the necessity of court determination. Pursuant to subdivision (e) of Rule 3.1702: “If a party is entitled to statutory or contractual attorney’s fees that are fixed without the necessity of a court determination, the fees must be claimed in the memorandum of costs.”

Voluntary Dismissal Triggers Expert Fees Under Section 998

  A plaintiff may voluntarily dismiss a complaint by written request to the clerk at any time prior to the commencement of trial. The court even provides a form for this purpose entitled: “Request for Dismissal.”

  A party in whose favor a dismissal is entered is entitled to recover its costs. Generally, these costs do not include the fees of experts not ordered by the court. Expert witness fees may, however, be recoverable when a valid Code of Civil Procedure section 998 settlement offer has not been accepted. Does plaintiff’s voluntary dismissal, where a section 998 offer has not been accepted, authorize the trial court to exercise discretion to award expert witness costs? Continue reading

Memorandum of Costs: 5-Day Extension Applies When Party Serves Notice of Entry by Mail

  California Rules of Court, Rule 3.1700 proscribes the procedure for claiming costs following entry of judgment. Rule 3.1700(a)(1) provides in relevant part: “A prevailing party who claims costs must serve and file a memorandum of costs within 15 days after the date of mailing of the notice of entry of judgment or dismissal by the clerk under Code of Civil Procedure section 664.5 or the date of service of written notice of entry of judgment or dismissal, or within 180 days after entry of judgment, whichever is first.” Continue reading

Improper Separate Statement Results in Summary Judgment

  Ray Batarse, a one time attorney who resigned from the California State Bar in 2006 with disciplinary charges pending, did not fair well representing himself with respect to his employment discrimination claim. In Batarse v. Service Employees International Union Local 1000, he alleged causes of action for racial and gender discrimination, retaliation, negligent supervision and retention, and wrongful termination in violation of public policy against his previous employer.

 The trial court ruled against Batarse on the employer’s motion for summary judgment. The court found that Batarse’s opposition to the motion failed to include a separate statement of disputed and undisputed facts that conformed to the requirements of Code of Civil Procedure section 437c, subdivision (b)(3), and rule 3.1350 of the California Rules of Court. The court then exercised its discretion under section 437c, subdivision (b)(3) to grant the motion on that basis – i.e., for Batarse’s failure to file a proper separate statement. Continue reading