Fee Motions: Is a Memo of Costs Required?

Michele Trausch
September 16, 2014

The process for recovering fees based on contract (Civil Code section 1717) has always been a bit confusing, especially when comparing the language of that statute with the statutes (CCP sections 1033.5 and 1034) and rules (CRC 3.1700 and 3.1702).

In Kaufman v. Diskeeper Corp., the Second District recognized the issues in what it termed a case of first impression.

Diskeeper was the prevailing party under a contract with Kaufman and entitled to attorney’s fees under the contract terms. It made a motion for fees under Civil Code section 1717 and CCP section 1033.5 but did NOT file a memorandum of costs (CRC 3.1700). The trial court denied the fee motion, finding that a cost memo was required.

No, said the Court of Appeal, reversing the trial court. Analyzing the various statutes and Rules of Court involved, it concluded that a motion based on Civil Code 1717 (recovery of fees under contract to the prevailing party) did not require that a cost bill also be filed. Rule 3-1700 is inapplicable to such a fee motion. Rather, Rule 3.1702 controls and that does not request a memorandum of costs.

Also note that while a cost bill must be filed in 15 days, a motion for fees uses a much longer time period (usually 60 days).

This area of practice can be tricky. The Kaufman case sheds light on this particular issue.