Stratton v. Beck

30 Cal.App.5th 901

242 Cal.Rptr.3d 54

Anthony STRATTON, Plaintiff and Respondent,

v.Thomas E. BECK, Defendant and Appellant.

B287001

Court of Appeal, Second District, Division 4, California.

Filed December 7, 2018

The Beck Law Firm, Thomas E. Beck, Los Alamitos, for Defendant and Appellant.

David M. Balter, San Francisco, for Plaintiff and Respondent.

COLLINS, J.

This case began as a dispute over approximately $300 in unpaid wages. It has since transmogrified into a dispute concerning attorney fees totaling nearly 200 times that amount and is here now for the second time. In the previous appeal, appellant Thomas Beck challenged the trial court’s award of attorney fees for work that respondent Anthony Stratton’s attorney performed in that forum. We affirmed the trial court’s ruling, holding that Stratton’s motion for $31,365 in statutory attorney fees was timely and supported by substantial evidence. At the conclusion of our opinion, we stated, "In the interest of justice, the parties are to bear their own costs of appeal." ( Stratton v. Beck (2017) 9 Cal.App.5th 483, 487, 498, 215 Cal.Rptr.3d 150 ( Stratton ) ). We reiterated that allocation in the ensuing remittitur: "The parties are to bear their own costs of appeal."

The parties interpreted this directive differently. Beck maintained that "costs" included attorney fees on appeal, precluding Stratton from seeking them under Labor Code section 98.2, subdivision (c).

Stratton disagreed and filed a motion in the trial court seeking $114,840 in appellate attorney fees—a lodestar of $57,420, doubled in light of the complexity of the underlying issues. The trial court awarded Stratton the lodestar and denied Beck’s motion to reconsider or clarify the ruling. It also awarded Stratton an additional $9,020 in fees he incurred opposing the motion to reconsider.

Beck appealed. He contends that our order on costs deprived the trial court of jurisdiction to entertain Stratton’s motion for appellate attorney fees. He further argues that the trial court erred in denying his motion to reconsider or clarify, in which he requested a more thorough explanation for the appellate attorney fee award. We disagree and affirm.

FACTUAL AND PROCEDURAL HISTORY

I. Prior Appeal

This case began when Beck’s employee of two months, Stratton, quit and claimed he was owed wages of $1,075. ( Stratton , supra , 9 Cal.App.5th at p. 487, 215 Cal.Rptr.3d 150.) For reasons that remain unclear, Beck’s payroll service paid Stratton $771.45 rather than the $1,075 he claimed he was owed. ( Ibid. ) Stratton filed a claim for the approximately $300 difference with the Division of Labor Standards Enforcement, the state agency empowered to enforce California labor laws. ( Ibid. ) "After conducting an administrative hearing, the Labor Commissioner awarded Stratton the $303.50 he requested, plus an additional $5,757.46 in liquidated damages, interest, and statutory penalties, for a total award of $6,060.96." ( Ibid. )

Beck sought de novo review of the Labor Commissioner’s order in the Los Angeles County superior court pursuant to Labor Code section 98.2, subdivision (a). ( Stratton , supra , 9 Cal.App.5th at pp. 487-488, 215 Cal.Rptr.3d 150.) The trial court awarded Stratton $6,778.85, exclusive of fees and costs. ( Id. at p. 489, 215 Cal.Rptr.3d 150.) Stratton’s attorney sought fees under Labor Code section 98.2, subdivision (c) (" Labor Code section 98.2(c)"), which provides: "If the party seeking review by filing an appeal to the superior court is unsuccessful in the appeal, the court shall determine the costs and reasonable attorney fees incurred by the other parties to the appeal, and assess that amount as a cost upon the party filing the appeal. An employee is successful if the court awards an amount greater than zero." ( Lab. Code, § 98.2(c).) The trial court awarded Stratton $31,365 in attorney fees. ( Stratton , supra , 9 Cal.App.5th at p. 491, 215 Cal.Rptr.3d 150.)

Beck appealed, arguing that the motion for attorney fees was untimely because the underlying civil case was limited rather than unlimited. ( Stratton , supra , 9 Cal.App.5th at p. 491, 215 Cal.Rptr.3d 150.) He also challenged the reasonableness of the fee award. (See id. at pp. 495-497, 215 Cal.Rptr.3d 150.) We affirmed the trial court’s judgment but directed the parties "to bear their own costs of appeal," "[i]n the interest of justice." ( Id. at p. 498, 215 Cal.Rptr.3d 150.)

We denied Beck’s petition for rehearing. Beck then filed a petition for review of our decision, but the Supreme Court rejected it as untimely. The Supreme Court also denied Beck’s subsequent motion for reconsideration of that decision.

Beck, an attorney who is representing himself, then reached out to Stratton’s counsel, David Balter, to arrange payment of the fees. Balter informed Beck that he planned to seek appellate fees in the sum of $48,375. Beck responded by requesting authority for the proposition that Balter could pursue appellate fees in light of our order that the parties were to bear their own costs. Balter directed Beck to California Rule of Court, rule 8.278(d)(2) (" rule 8.278(d)(2)"), which provides, "Unless the court orders otherwise, an award of costs neither includes attorney’s fees on appeal nor precludes a party from seeking them under rule 3.1702." He also cited a case and a treatise. Beck disputed the applicability of these authorities.

Several weeks later, the remittitur from our previous decision issued. Like our order, it stated, "The parties are to bear their own costs of appeal."

II. Motion for Appellate Attorney Fees

Balter timely filed a motion in the trial court requesting appellate attorney fees pursuant to Labor Code section 98.2(c). He sought a lodestar of $57,420, to compensate for 127.6 hours of work at a rate of $450 per hour, and a multiplier of two in light of "[t]he high quality work which clarifies an important issue where much confusion had existed." Balter attached a declaration and billing records documenting 113.6 of the claimed hours worked; he estimated he would incur the additional 14 hours "to: review defendant’s anticipated opposition, research and prepare a reply memorandum, travel to and from the hearing, and attend the hearing to argue the motion."

Prior to filing an opposition, Beck filed a motion in this court to recall the remittitur "to clarify whether this court’s disposition stating that the parties bear their own costs includes attorney fees." We denied the motion.

Beck obtained counsel, who filed an opposition to the motion for appellate fees. The opposition asserted that our directive that the parties bear their own costs "necessarily means that the parties also bear their appellate attorney fees." To support this position, it argued that statutory attorney fees are an element of costs, and that rule 8.278(d)(2) was not on point "because there was no award of appeal costs; on the contrary, there was a denial of any costs award." In the alternative, it argued that even if fees were authorized, the amount claimed was unwarranted due to "dubious billing entries," block billing, and lack of a basis for the claimed multiplier. The opposition did not mention the 14 estimated hours or Code of Civil Procedure section 1033, subdivision (a)¹ , which vests the trial court with discretion to determine costs "in a case other than a limited civil case ... where the prevailing party recovers a judgment that could have been rendered in a limited civil case." Balter filed a reply, and Beck’s counsel filed a surreply. The surreply likewise was silent as to the 14 hours and section 1033, subdivision (a).

At the hearing on the motion, the trial court told Beck and his counsel it was "not at all persuaded" by their argument that costs include attorney fees. It further stated, "I think there’s clear law that costs—in the way they referred to it—does not include attorney’s fees." The court also referred them to rule 8.278(d)(2). Beck’s counsel argued that the rule did not apply because "there was no award of appeal cost. It was expressly denied, no cost to any party." In the alternative, Beck argued that "the Code of Civil Procedure takes precedence" over rule 8.278(d)(2) ; in particular, he pointed to section 1033.5, subdivision (a)(10), which provides that attorney fees authorized by contract, statute, or law "are allowable as costs under Section 1032." Beck also attempted to distinguish two of the cases Balter relied on, Butler-Rupp v. Lourdeaux (2007) 154 Cal.App.4th 918, 65 Cal.Rptr.3d 242 ( Butler-Rupp ) and Mustachio v. Great Western Bank (1996) 48 Cal.App.4th 1145, 56 Cal.Rptr.2d 33 ( Mustachio ), on the grounds that both arose under section 1717 and required the trial court to determine which party was the "prevailing party" before awarding fees.

The trial court took the matter under submission and issued its ruling the next day. The court’s minute order stated: "After an in-chambers review, the court makes the following ruling: [¶] Motion for an award on post-judgment and appellate attorney’s fees is granted. [¶] The order is signed and filed this date." The accompanying order was prepared on the proposed order Balter submitted with the motion, which stated in pertinent part, "The court, having considered the filings and arguments of both parties, finds good cause for granting of the motion." The court crossed out Balter’s requested amount of $114,840 and wrote in the lodestar, $57,420.

III. Motion for Reconsideration/Clarification

Beck, acting in propria persona, subsequently filed a "motion for reconsideration/clarification of October 17, 2017 ruling granting Stratton’s post appeal fee motion, CCP § 1008(a)(b)." He argued that the trial court committed "manifest error" by issuing an order that "remain[ed] silent on each of the key issues the opposition to Stratton’s motion pointed out." Beck asserted that "it cannot be determined how and why the court assumed it had jurisdiction in light of the appellate court’s denial of costs to...