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Tentative Ruling
Judge Colleen Sterne
Department 5 SB-Anacapa
1100 Anacapa Street P.O. Box 21107 Santa Barbara, CA 93121-1107


Estate of John Smith Clark

Case No: 15PR00377
Hearing Date: Thu Jan 16, 2020 9:00

Nature of Proceedings: (1) Motion for Attorney's Fees & Costs on Appeal (2) Motion to Strike/Tax Costs

Estate of John Smith Clark, #15PR00377, Judge Sterne


Hearing Date:                January 16, 2020



1.    Motion for Attorneys’ Fees and Costs on Appeal

2.    Motion to Strike or Tax Costs



For Petitioner: Clark A. Lammers (Fell, Marking, et al.)

For Objectors: James P. Ballantine


Tentative Ruling: The court grants, in part, petitioner/respondent Christine Carey’s motion for attorney’s fees and costs on appeal and grants, in part, objectors Linda McMillan and Loris Clark’s motion to strike or tax costs. The court orders that petitioner/respondent Christine Carey shall recover $15,000 in attorney fees incurred on appeal and $452.50 in costs on appeal.


Background: On November 30, 2017, the court entered its Statement of Decision and Judgment following trial in this matter. The court found in favor of petitioner/respondent Christine Carey that the will of decedent John Smith Clark was, notwithstanding the absence of two witnesses, valid as the will of decedent and not procured as the result of undue influence.


On April 27, 2018, the court entered its order on objectors Linda McMillan and Loris Clark’s Motion to Tax Costs and Carey’s Motion for a Post-Trial Award of Expenses for Proving the Truthfulness of Matters pursuant to CCP § 2033.420. The court awarded costs of $9,942.80. The court awarded a portion of the requested § 2033.420 costs, determining that Carey incurred $9,538.70 in attorney fees to prove the genuineness of a document as requested in Request for Admission (“RFA”) #1 and the truth of the matter requested in RFA #18. On April 30, 2018, McMillan and Clark filed their notice of appeal of the § 2033.420 portion of that order.


On July 22, 2019, the Court of Appeal affirmed the judgment. Estate of Clark, No. 2D CIV. B289753, 2019 WL 3296198 (Cal. Ct. App. 2019). Costs on appeal were awarded to Carey. Remittitur was filed in this court on October 1, 2019.


On November 1, Carey filed her motion for attorneys’ fees and costs on appeal and a memorandum of costs. On November 21, McMillan and Clark filed their motion to strike or tax costs, which Carey opposes. On January 3, 2020, McMillan and Clark filed their opposition to the attorneys’ fee motion.


Attorneys’ Fees: In the memorandum of costs, Carey lists $452.50 in costs that are not at issue and $20,189 in attorney fees. In the motion for attorneys’ fees, Carey moves for an award of the $20,189 in attorneys’ fees incurred on appeal of the award under CCP § 2033.420. The memorandum and motion seek the same attorney fees. McMillan and Clark oppose the motion on the ground that CCP § 2033.420 does not support an award of attorney fees on appeal. In their motion to strike or tax costs, they argue that it is not appropriate to claim, in a memorandum of costs, entitlement to attorney fees that are subject to a motion for attorney fees that the court has not yet heard. The court need not decide that issue as there is a motion and the court will address the substantive issue of entitlement to attorney fees on appeal under CCP § 2033.420.


CCP § 2033.420(a) reads: “If a party fails to admit the genuineness of any document or the truth of any matter when requested to do so under this chapter, and if the party requesting that admission thereafter proves the genuineness of that document or the truth of that matter, the party requesting the admission may move the court for an order requiring the party to whom the request was directed to pay the reasonable expenses incurred in making that proof, including reasonable attorney’s fees.”


“Statutory authorization for recovering attorney fees in the trial court necessarily includes attorney fees incurred on appeal unless the statute specifically provides otherwise.” Community Facilities Dist. No. 88-8 v. Harvill, 74 Cal.App.4th 876, 883 (1999) (“Harvill”). The court in that case cited Morcos v. Board of Retirement, 51 Cal.3d 924, 927 (1990) (“Morcos”), which held “statutes authorizing attorney fee awards in lower tribunals include attorney fees incurred on appeals of decisions from those lower tribunals.” CCP § 2033.420 does not specifically provide that attorney fees incurred on appeal are not recoverable.


McMillan and Clark argue that CCP § 2033.420 does not authorize an award of attorney fees but only an order to pay expenses incurred in making proof. They reason that, since appellate attorney fees were not incurred in making the proof, they are not recoverable expenses under § 2033.420.


This is a case of first impression. The court could find only one unpublished court of appeal decision addressing the issue (without much analysis). Of course, that case is not citable and the court will not rely on it. “Because the current language of ... section 2033.420 is similar to the current language of Federal Rules of Civil Procedure rule 37(c)(2) it is appropriate to look to federal court decisions interpreting the parallel provisions of rule 37(c)….” City of Glendale v. Marcus Cable Assocs., LLC, 235 Cal.App.4th 344, 353 n6 (2015) [internal quotations and citation omitted]. But the court could find no federal authority on the issue, either.


McMillan and Clark point out that the statute in Morcos authorized the superior court reversing denial of a retirement allowance to “award reasonable attorney’s fees as costs to the member or beneficiary of the member who successfully appealed the denial of such application.” Gov't Code § 31536.


But, just as the appellate court here did not rule on proof of matters under § 2033.420, the appellate court in Morcos did not reverse the denial of a retirement allowance. Here the attorney fee award is an expense of making the proof; in Morcos it is a cost of appealing the administrative denial of an application. The distinction McMillan and Clark make is one without a substantive difference. In both instances, the respondents on appeal are defending the statutorily authorized fee awards. In neither case does the statute provide that appellate fees cannot be recovered.


This court determined that Carey incurred $9,538.70 in making the proof of matter requested in RFA ##1 and 18. The fees on appeal are nearly double that (the amount of fees is discussed below). This supports the logic of interpreting CCP § 2033.420 as authorizing fees incurred in defending the proof expenses, including attorney fees, on appeal. Without such an award, the appeal would more than eliminate the value achieved in this court. The court concludes that CCP § 2033.420 is a statute authorizing an attorney fee award in the trial court that necessarily includes attorney fees incurred on an appeals of the trial court’s decision.


McMillan and Clark do not contest the amount of fees incurred. Carey seeks fees of $20,189. The declaration of Clark A. Lammers asserts that the attorneys spent 47.2 hours in connection with the appeal, attaching 14 invoices as evidence of those fees. (In three of those invoices—March, April, and May of 2019—all fees and costs are redacted.)


The court has carefully reviewed the invoices. The amount of attorney fees in those invoices is $18,264. The court does not find support for fees of $20,189. In the motion and reply, Carey parenthetically mentions that the $20,189 in attorneys’ fees includes “fees incurred in connection with drafting this motion.” However, the declaration of counsel does not provide any evidence of time spent on anything other than the appeal. That last time entry is dated August 28, 2019, as reflected in the September 18, 2019 invoice. This motion and counsel’s declaration are dated November 1.


It could be that counsel is combining the fees and costs in the invoices. Those invoices include costs totaling $1,646.72. Even adding these two figures, the total is $19,910.72.


It is disappointing that counsel did not provide a list summarizing the fees and expenses. The failure to do so required the court to go through each invoice to see if counsel’s total was accurate—it wasn’t. Then the court totaled fees and costs twice to make sure the court’s numbers are accurate.


The motion for attorney fees is not an opportunity to add in costs that are not recoverable. Indeed, many of the costs listed on the invoices bear no relation to the appeal of the fee award. For example, counsel included the Superior Court filing fees for the First and Final Report of Personal Representative on Waiver of Account ($453.20 and $5.15), a certified copy of the Order for Final Distribution ($27), a recording fee for the Order for Final Distribution ($101), and a recording fee for an Executor’s Deed ($102). The costs in the invoices include the $427.20 in appellate court filing fees and the $25 for a copy of the transcript for the appeal, which are separately listed on the cost memorandum. The cost memorandum and attorney fee motion seek a double recovery for these amounts.


Carey provides no justification for allowance of other costs as attorney fees. However, the court will allow one cost item as attorney fees—the Westlaw charges for computerized legal research in the amount of $404.07. Charges incurred for computerized legal research are recoverable as attorney fees. Plumbers & Steamfitters, Local 290 v. Duncan, 157 Cal.App.4th 1083, 1099 (2007). These costs total $440.07.


The amount of attorney fees, including recoverable computerized research charges, total $18,704.07. However, Carey misrepresented or did not justify the amount of fees and included costs that bear no relation to the appeal, duplicate costs, and other costs not allowed. This required the court to expend extensive extra time on this matter, including substantial work with a calculator. For that reason, the court is reducing the fee award to $15,000.


Order: The court grants, in part, petitioner/respondent Christine Carey’s motion for attorney’s fees and costs on appeal and grants, in part, objectors Linda McMillan and Loris Clark’s motion to strike or tax costs. The court orders that petitioner/respondent Christine Carey shall recover $15,000 in attorney fees incurred on appeal and $452.50 in costs on appeal.

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