DETAILED BILLING STATEMENTS ARE NOT AN ABSOLUTE REQUIREMENT IN FEE MOTION REQUESTS—BUT ARE HIGHLY ADVISABLE
Third District Affirms Fee Award Based on Detailed Attorney Declaration, Holding Line Item Billing Statement Are Not An Absolute Requirement.
In Steiner v. Thexton, Case No. C054605 (3d Dist. May 28, 2008) (unpublished), the Third District reviewed a trial judge’s award of $85,279 in fees out of $104,683 sought in the fee motion. Although the requesting attorney included a detailed declaration describing services performed by himself and his assistant, the attorney did not include line item billing statements. Instead, he offered to produce them for in camera review in order to safeguard privileged entries in the billings. The trial judge found that it was not necessary for billing statements to support the fee request, because the attorney declaration was sufficiently detailed to show the extent and quality of services rendered to the prevailing party. The opponent appealed.
The Third District affirmed, finding no abuse of discretion when reviewing the fee ruling by the trial judge.
The appellate court rejected the argument that time records or billing statements had to be provided for trial judge review as a prerequisite to a fee award, citing Weber v. Langholz, 39 Cal.App.4th 1578, 1587 (1995). Rather, in this particular situation, the attorney declaration describing services was particularized enough to provide a foundation for the lower court’s review of the fee request. The Third District did not accept appellant’s argument that Weber was distinguishable because it involved a smaller fee request of only $18,075. It observed: “That this case involves more money does not support reversal.” (Slip Opn., at p. 34.)
The loser was liable for the winner’s $85,279 in fees, plus was awarded costs on appeal (which can include fees expended on appeal to win, if timely requested by the respondent).
PRACTICE POINTER—California Rules of Court, rule 3.1702(c) contains the timing deadlines to file a motion for recovery of attorney’s fees on appeal. Rule 3.1702(c) indicates such a motion, absent a stipulation or trial court otherwise, “must be served and filed within the time for serving and filing the memorandum of costs under rule 8.276(d).” The problem with this is that rule 8.276(d) refers to the time to oppose a motion for sanctions, a completely different issue. We believe that rule 3.1702(c) meant to reference rule 8.278(c), which establishes that a party has 40 days after notice of remittitur to file a motion for attorney’s fees on appeal. Although not picking up on this typographical error, at least one treatise agrees that the 40 day deadline applies, and correctly amplifies that it is not extended 5 days for mailing of the remittitur notice.See California Civil Appellate Practice, “Costs, Attorney Fees, and Sanctions,” vol. 2, § 20.18, p. 1040 (Cal.Cont.Ed.Bar 3d ed. 2007). We hope the Judicial Council corrects the error in section 3.1702(c).
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