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.”
Code of Civil Procedure section 685.040 authorizes the court to award a judgment creditor attorney fees incurred in enforcing a judgment if the underlying judgment included an award of fees as costs. Continue reading
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
To encourage settlement of lawsuits prior to trial the legislature enacted section 998 of the Code of Civil Procedure which provides for statutory offers in compromise. It accomplishes its purpose by augmenting or withholding recoverable costs when a party fails to achieve a result better that it could have obtained by accepting a conforming offer.
Section 998 offers may alter the general rule that a prevailing party is entitled to costs. Such offers may also alter the general rule that costs do not include expert witness fees unless those experts are court ordered. Pursuant to section 998 expert witness fees are recoverable when a judgment or award following the nonacceptance of a pretrial settlement offer triggers its operation. Continue reading