Deadlines, Special Fee Shifting Statutes: City Obtaining Preliminary Injunction As To Public Nuisance On Marijuana Dispensaries Was Entitled To Attorney’s Fees, But Not Costs

No Costs Memorandum Was Required To Seek Fees, But City Failure’s To File Did Bar It From Obtaining Costs—Kaufman Decision Found Applicable To Statutory Fee Request.

               In Green Lotus Entertainment, Inc. v. City of Montclair, Case No. E079531 (4^th Dist., Div. 2 May 16, 2024) (unpublished), City obtained a preliminary injunction against certain cross-defendants, arguing that they were a marijuana dispensatory constituting a public nuisance.  The trial court granted the preliminary injunction, with the City then bringing a motion to obtain attorney’s fees and other costs under Civil Code section 3496.  [No one contested that section 3496 did allow for a fees or costs order where a governmental entity enjoyed uses involving controlled substances.]  Despite no costs memorandum being filed by City, the lower court granted it attorney’s fees of $113,387.50 and routine costs of $5,208.60.

               The 4/2 DCA affirmed the fees award, but it reversed the costs award.  Cross-defendants argued that City’s failure to file a costs memorandum precluded both a fees award and costs award.  Half correct, according to the Court of Appeal.  There was no need for a costs memorandum to be filed with respect to a fee request, finding that the reasoning in Kaufman v. Diskeeper Corp.,229 cal.App.4^th 1 (a contractual fees case) was apt in a statutory fee request case, finding no substantive difference so as to require anything other than a noticed motion for fees in both situations.  However, a different matter for costs:  a costs memorandum needed to be filed, such that the $5,208.60 routine costs went POOF! on appeal as a matter of law.