Adams Stirling PLC

Miner v. Seven Hills Drive Homeowners Association

Court of Appeal of California, Fourth Appellate District, Division Two
(September 1, 2022) UNPUBLISHED

Counsel: Joseph Miner, pro per, for Plaintiff and Appellant.
Law Offices of Joseph J. Barr, Joseph J. Barr for Defendants and Respondents.
No appearance by respondent Eastern Municipal Water District.
Judges: RAMIREZ, P. J.; McKINSTER, J., MILLER, J. concurred.
Opinion by: RAMIREZ, P. J.


After reaching a settlement resulting in the entry of a judgment, self-represented plaintiff Joseph Miner garnered damages in the sum of $12,500 for damage to real property caused when the Seven Hills Drive Homeowners Association1, defendants, removed turf and replaced it with drought tolerant landscaping. Upon settling the matter, the complaint was dismissed with prejudice and judgment was entered. Subsequently, after the judgment was corrected at plaintiff's behest, plaintiff submitted a memorandum of costs, including an item for attorney's fees without first filing a noticed motion. Defendants made a motion to strike or tax the memorandum of costs. Ultimately, the trial court denied the request for attorney's fees because the amount of recovery brought the action within limited case jurisdiction, for which costs and fees are discretionary,  and because plaintiff failed to file a noticed motion with a rendition of attorney hours and hourly rate. After two separate motions for reconsideration, plaintiff appeals.
On appeal, plaintiff argues that the court erred in denying him recovery of attorney fees because (a) recovery of attorney fees pursuant to the Davis Stirling Act are mandatory; (b) the lawsuit did not fall within limited case jurisdiction because plaintiff's complaint had sought injunctive relief; (c) he was not required to file a formal noticed motion to recover attorney fees; and (d) the court should have permitted the attorney to give testimony as to the number of hours billed and his hourly rate. We affirm.


Plaintiff's Second Amended Complaint (SAC) is the operative pleading in this matter. Filed on April 15, 2019, it alleges causes of action for (1) Damage to Real Property; (b) Gross Negligence; (c) Nuisance; (d) Negligent Infliction of Emotional Distress; (e) Civil Elder Abuse (Financial); (f) Breach of Fiduciary Duty; (g) Fraud; (h) Aiding and Abetting; (i) Breach of Governing Documents; and (j) Injunctive Relief. At the time the amended complaint was filed, attorney Joseph Rosenblit acted as counsel for coplaintiff Mary Owen,2 while plaintiff signed the SAC in propria persona. Defendants answered the SAC on May 15, 2019.
On July 15, 2019, at a mediation program hearing, a settlement on the entire case was reached and recited on the record, as follows:

THE COURT: "My understanding of this settlement agreement — and because I have to — I'm trying to get this with clarity. Please let me know if I've got something wrong. [¶] It will be $20,000 that will be paid a piece to each of the plaintiffs. The $20,000 will be paid within 30 days, to August 14, 2019. If it is not paid at that time, then the Court will issue a judgment in that amount to the opposing side. [¶] The case will be dismissed today with 664.6 authority to — and to 664.6 jurisdiction to enforce the — you know, I don't have your clients to be able to do a 664.6. [¶] So it'll have to be a stipulated judgment for $20,000 apiece. Is that right? [¶] So you'll be paying $20,000 — a stipulated settlement for $20,000 apiece. And once the $20,000 are paid, you will dismiss the case."

The parties confirmed that within 30 days, plaintiffs would receive payment, and within five days of receiving payment, plaintiff would dismiss the case.  Defense counsel then requested that the settlement include an agreement that plaintiffs sign a release agreement and provide a W-9 form. The court also directed the inclusion of a non-disparagement clause. All parties agreed. The court approved the settlement, made it the order of the court, and set an order to show cause hearing regarding dismissal after settlement.

The matter seemed to be settled, but plaintiff declined to sign the release, requesting that defendants include the following additional language to the standard release: "This settlement is made with the mutual understanding that it is meant to conclude any and all claims among and between the parties to the litigation of any sort. This includes any cause of action, costs, fees of any type, sanctions, complaints, aggravations of whatever description whatsoever, including attorney's fees, costs and charges involved in the litigation and pre-litigation actions under the Davis-Stirling Act, declaration, contracts, by-laws, CC&R's [sic], or any other possible applicable statute, law, rule or contract." Plaintiff also informed defendants that all parties needed to sign the release. Defendants agreed to the changes, but instead of signing the modified release and settlement, plaintiff demanded five more changes, including a confidentiality clause. Defendants agreed to all the proposed changes except the inclusion of a confidentiality clause and transmitted the document to plaintiff. Instead of executing the agreement, Miner indicated he needed time to think about it.

On July 30, 2019, plaintiff sought an ex parte order clarifying the terms of the settlement regarding the release and seeking an order that all parties sign it. The court denied the ex parte application without prejudice. On August 19, 2019, plaintiff made another ex parte application for clarification of the settlement, which was again denied. At the previously scheduled order to show cause hearing, plaintiff orally made a motion to enter judgment, but the matter was continued.

On October 8, 2019, defendants made a motion to enforce the settlement under Code of Civil Procedure section 664.6, which plaintiff opposed. In his opposition, plaintiff now requested a stipulated judgment for $25,000 ($12,500 per plaintiff) against defendants in return for dismissal of the litigation without prejudice pursuant to the oral settlement agreement. Plaintiff further asserted that Code of Civil Procedure section 664.6 was inapplicable [*6]  to the settlement agreement, and that he had delivered "all requirements of oral settlement" but had not been paid. On October 16, 2019, plaintiff filed a request for dismissal with prejudice of the entire action. On item 2 of the form, plaintiff checked the box indicating that the court did not waive court fees and costs for a party.

On December 5, 2019, the court granted defendants' motion, finding that the parties had reached a settlement. The tentative ruling set out the terms as follows: (1) plaintiffs would provide W-9 forms; (2) defendants would pay each plaintiff $20,000, of which the HOA is paying $12,500 to each plaintiff through its insurance carrier); (3) there is a no-disparagement clause, plaintiff's website will come down; and (4) there is a Civil Code section 1542 waiver. The tentative ruling also included the following language regarding the release of claims: "'When parties intend that an agreement be binding, the fact that a more formal agreement must be prepared and executed does not alter the validity of the agreement.' (Blix Street Records, Inc. v. Cassidy (2010) 191 Cal.App.4th 39, 48.) The court can enter a judgment that contains a release subject to Civil Code section 1542 and nothing more. And so, judgment is entered according to these terms and the Motion is GRANTED."  (Capitals in original.)

Plaintiffs objected to defendants' proposed judgment, but on December 12, 2019, the court entered judgment. The judgment included, among other recitals, the following provisions: (1) plaintiff's amended complaint was dismissed with prejudice; (2) defendants' insurance carrier shall pay, within 30 days, $12,500 to each plaintiff as full and complete settlement of the underlying dispute; (3) all parties shall be responsible for their own attorney's fees and costs incurred in the prosecution or defense of the underlying dispute; (4) the parties shall not make any disparaging remarks, etc., about any other party to the underlying dispute and plaintiff shall remove within 5 days all websites he has ever maintained pertaining to Seven Hills defendants and forever refrain from maintaining any future social media pages or websites that disparage the Seven Hills defendants; (5) the parties agree to relieve, release and discharge each of the other parties from any and all claims, liabilities, demands, obligations, promises, acts, agreements, costs, damages, causes of action of whatsoever kind or nature, and expenses (including but not limited to attorney's fees and expert fees), whether known or unknown, suspected or unsuspected, based on or arising out of in connection with the underlying dispute; and (6) in addition to the above release, the parties expressly waive and relinquish all rights and benefits afforded by Civil Code section 1542. This judgment was entered the same date.
Twelve days later, on December 24, 2019, plaintiff filed a motion to set aside and vacate the judgment and enter a different judgment based on Code of Civil Procedure section 663. Two days later, on December 26, 2019, plaintiff filed another, very similar, motion to set aside and vacate the judgment and all resulting acts based on Code of Civil Procedure section 663, and to then enter a judgment that conforms precisely to the court's findings in its decision on the section 664.6 motion of the defendants. Plaintiff provided a proposed judgment of his own which contained a modified non-disparagement clause (which redefined disparagement as referring only to false and injurious statements), and which omitted any provision for waiver of attorney's fees.

On January 14, 2020, the trial court granted plaintiff's motion, vacated the prior judgment nunc pro tunc, and directed that judgment include only the following terms: (1) plaintiff will provide a W-9 form; (2) defendants are to pay [*9]  each plaintiff $20,000, of which the HOA is paying $12,500 through its insurance carrier; (3) there is a no-disparagement clause so plaintiff's website will come down; (4) there is a Civil Code section 1542 waiver. The court expressly stated there are no other terms.
Not happy with success, plaintiff filed a motion on January 16, 2020, requesting that the court reconsider its ruling, arguing that the court lacked jurisdiction to completely vacate and set aside the judgment. In this motion, plaintiff asserted for the first time that his previous motion did not seek to completely eliminate the previously entered judgment, but, instead, only sought to correct it.
On January 22, 2020, plaintiff filed another motion for reconsideration, nearly identical to the motion filed a week earlier, but this time asserting that the court lacked jurisdiction in the fundamental sense to vacate the original judgment, and again referring to his original motion as a motion to correct the judgment that had been entered previously. Plaintiff then made two consecutive ex parte applications for a ruling on his motion. On February 6, 2020, plaintiff filed yet another ex parte application to correct the court's "void order" of January 14, 2020.
After defendants opposed plaintiff's ex parte filings, the court made a nunc pro tunc finding that the minute order of January 14, 2020 did not clearly reflect the court's order; the court held that the previously entered judgment was not set aside but, rather, was referred back to Judge Marquez, the judge before whom the parties had originally recited the terms of the settlement agreement, for clarification and enforcement.
On February 27, 2020, prior to the hearing on plaintiff's motion for reconsideration, Judge Marquez entered a judgment pursuant to Judge Bermudez's December 5, 2019, minute order granting defendants' motion to enforce the judgment, pursuant to Code of Civil Procedure section 664.6, incorporating verbatim the language from the minute order entered on that date.3 On March 4, 2020, the court heard plaintiff's motion for reconsideration and denied it.

On March 13, 2020, plaintiff submitted a memorandum of costs, which included, among other costs, an item for $25,000 for attorney's fees. Defendants filed a motion to strike or tax the memorandum of costs on grounds it was untimely, the judgment did not award costs to plaintiff; plaintiff signed the Civil Code section 1542 release waiving recovery of attorneys’ fees; plaintiff's recovery is below the threshold for unlimited civil cases, and recovery of costs is discretionary in limited civil actions; plaintiff's memorandum of costs omitted the Judicial Council worksheet; and plaintiff failed to timely file a motion to recover attorney's fees. Defendants also pointed out that the judgment did not include an award of costs or attorney's fees, and that in post-settlement emails, plaintiff waived costs and attorney's fees.4
On June 8, 2020, after filing his opposition to defendants' motion, plaintiff filed (without leave) an amended memorandum of costs, now seeking $210,200 in attorney's fees in addition to other costs. On June 16, 2020, the matter was heard. The minute order reflects the court ruled that the motion to strike plaintiff's amended memorandum of costs was stricken5 [sic], but later ruled the defendants' motion to strike the costs memorandum was granted. The court declined to consider plaintiff's amended declaration and determined that plaintiff was the prevailing party for recovering costs, but concluded that because the amount of the judgment is an amount plaintiff could have recovered in a limited civil action, the award of costs was discretionary,  and not a matter of right. The court then exercised its discretion to not award costs to plaintiff and denied attorney's fees because they are recoverable only by a noticed motion, which plaintiff had not filed, citing California Rules of Court, rule 3.1702.
On June 22, 2020, plaintiff filed a motion to reconsider the denial of costs and attorney's fees. The motion was heard on July 27, 2020, and on July 28, 2020, the court issued a minute order with its ruling denying the motion for reconsideration. Specifically, the court found no circumstances warranting reconsideration and determined that plaintiff was not entitled to statutory attorneys' fees without a noticed motion and without proper documentation. The court also found unpersuasive plaintiff's arguments that Civil Code section 5975 expressly provides for attorneys' fees and costs because plaintiff had failed to provide the appropriate declaration or affidavit and because plaintiff had failed to file a notice motion for recovery of attorneys' fees.
On August 13, 2020, plaintiff again sought reconsideration of the court's ruling on the motion to strike the memorandum of costs. On September 14, 2020, the court denied the motion because plaintiff failed to present new or different facts warranting reconsideration of the prior ruling.
On October 14, 2020, plaintiff appealed, purportedly from the denial of both motions for reconsideration.


Plaintiff argues various grounds6 (over the course of an 80-page appellant's opening brief) for reversing the trial court's order denying his request for reconsideration of the trial court's ruling granting defendants' motion to strike his memorandum of costs. His 60 pages of background facts leading up to the litigation, arbitration and settlement process, which ended in a settlement agreement whereby he recovered $20,000 in damages, ultimately set the stage for the final fight over attorney's fees. The trial court concluded plaintiff was the prevailing party, from which starting point we proceed.

1. Plaintiff's Motions for Reconsideration were Properly Denied.
The plaintiff's true claim is that the court improperly struck his memorandum of costs, which includes several thousands of dollars for preparation for a trial that did not happen and for attorneys' fees for a self-represented litigant. Plaintiff styles his appellate challenges as referring to the successive motions he made to reconsider the court's ruling. Plaintiff claims the court erred in denying his reconsideration motions. We disagree.

Code of Civil Procedure section 1008 governs motions for reconsideration. "When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within ten days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend or revoke the prior order." (Code Civ. Proc., § 1008, subd. (a); Robbins v. Los Angeles Unified School Dist. (1992) 3 Cal.App.4th 313, 317.) The "'different state of facts' language in the statute requires that the party seeking reconsideration provide both newly discovered evidence and an explanation for the failure to have produced such evidence earlier." (Robbins, supra, at p. 317, citing Blue Mountain Development Co. v. Carville (1982) 132 Cal.App.3d 1005, 1013.)

"The party seeking reconsideration must provide not just new evidence or different facts, but a satisfactory explanation for the failure to produce it at an earlier time." (Glade v. Glade (1995) 38 Cal.App.4th 1441, 1457, citing Mink v. Superior Court (1992) 2 Cal.App.4th 1338, 1342.) Plaintiff's motions for reconsideration included more facts but not new facts, and he failed to present any explanation, much less a satisfactory one, for failing to produce the new facts at an earlier time.
The court properly denied both motions to reconsider its order granting defendants' motion to strike plaintiff's memorandum of costs.

2. Defendants' Motion to Strike Costs Was Properly Considered Where Plaintiff Failed to Object to Its Timeliness in the Trial Court.
Plaintiff argues that the trial court improperly entertained defendants' motion to strike costs because the motion was not brought within the time limits provided by statute. Defendants argue that plaintiff failed to preserve this issue for review by failing to object to or oppose the motion to strike on the ground of untimeliness in the trial court. We agree with defendants.

It is well settled that points not urged in the trial court may not be urged for the first time on appeal. (Robbins v. Regents of Univ. of California (2005) 127 Cal.App.4th 653, 659-660; see also, Baxter Healthcare Corp. v. Denton (2004) 120 Cal.App.4th 333, 371, fn. 8.) Plaintiff failed to object to defendants' motion to strike plaintiff's memorandum of costs on the ground of untimeliness so that claim is forfeited.

3. The Trial Court Properly Rejected Plaintiff's Amended Memorandum of Costs as Untimely.
Plaintiff's original memorandum of costs was filed on March 13, 2020. Well after defendants filed their motion to strike or tax costs, plaintiff filed an amended memorandum of costs, which included a far greater sum for attorneys' fees sans any supporting documentation. The court struck the amended memorandum of costs as untimely. Plaintiff argues that the trial court improperly struck and refused to consider his amended memorandum of costs because it was timely. We disagree.

California Rules of Court, rule 3.1700 provides, in pertinent part, "A prevailing party who claims costs must serve and file a memorandum of costs within 15 days after the date of service of the notice of entry of judgment or dismissal by the clerk under Code of Civil Procedure section 664.5 or the date of service of written notice of entry of judgment or dismissal, or within 180 days after entry of judgment, whichever is first. (Cal. Rules of Ct., rule 3.1700(a)(1).) The judgment was entered on February 27, 2020, made nunc pro tunc as of December 12, 2019, because the plaintiff's dismissal and defendants' payment of damages had already occurred.

Plaintiff filed his original memorandum of costs within 15 days of the February 27, 2020 judgment. Then, without leave of court, plaintiff filed another memorandum of costs three days after the first, which mirrored the original. Plaintiff did not stop there. He then filed an amended memorandum of costs on June 8, 2020, nearly three months later, without leave of court, and after defendants had filed their motion to strike the memorandum of costs. This memorandum of costs included a new claim for attorney's fees in the amount of $210,200. No worksheet accompanied either memorandum of costs, no affidavit was submitted in support of the newly discovered attorneys' fees, and there was no documentation to support the vast increase in attorney's fees claimed, particularly considering that plaintiff was acting as his own counsel from the time of the filing of the operative second amended complaint.

Plaintiff's original cost memorandum is considered timely because no objection was made on that ground to it, and no objection was made to its duplicate, which was filed a few days later. However, the amended memorandum was filed well past the 15-day time limit, without leave of court. It was not timely.

Plaintiff attempts to argue that the amended memorandum was timely because there was no notice of entry of judgment filed respecting the February 27, 2020, judgment. The February 27, 2020 judgment was not a stand-alone judgment. It corrected the original judgment, nunc pro tunc, after plaintiff requested that the judgment not be vacated, as he had originally sought by way of motion, but rather that it be modified so that the terms of the judgment comported with the settlement terms. Notice of entry of the original judgment was served on December 13, 2019.7

None of the authorities cited by plaintiff authorize the filing of a different cost memo well beyond the 15-day time period without a showing of good cause. Particularly where the last memorandum was such a radical departure from the sums originally claimed, it was incumbent on plaintiff to explain why these sums were not originally claimed and to provide documentation verifying the hours claimed and the attorney fee rate applied to those hours. The time to apply for leave is before one files a new memorandum, and the way to do so is by way of a motion for leave to file a supplemental or amended memorandum, giving reasons for the variance. The serial filing of memoranda claiming diverse sums without documentary support or reasons why the amendment after the passage of the 15 days provided by the rules of court lends a distinct aura of unreliability to the contents.
Because the amended memorandum of costs was filed untimely, the trial court properly declined to consider it. But even if it were timely, the result would be the same, because the court had broad discretion to strike or tax the memorandum of costs.

4. The Trial Court Had Discretion Whether or Not to Award Costs Because Plaintiff's Recovery Was Below the Threshold for an Unlimited Civil Case.
Next Plaintiff argues that the trial court erred denying costs on the ground his recovery was less than the jurisdictional limit for an unlimited civil case. We disagree. In an unlimited civil action, the prevailing party is entitled to costs of suit as a matter of right. (Code Civ. Proc. § 1032, subd. (b); DeSaulles v. Comm. Hosp. of Monterey Peninsula (2016) 62 Cal.4th 1140, 1147.) A plaintiff who enters into a settlement with a defendant in which the plaintiff receives money in return for dismissal is considered the prevailing party, notwithstanding the dismissal of the complaint. (DeSaulles, supra, at p. 1156.)

However, costs are not recoverable as a matter of right where the plaintiff's recovery is less than the amount prescribed by law as the maximum limitation upon the jurisdiction of the small claims court. (Code Civ. Proc., § 1033, subd. (b).) In such a situation, the court may, in its discretion, allow or deny costs to the prevailing party, or may allow costs in part in any amount as it deems proper. (Code Civ. Proc., § 1033, subd. (b)(1); Chavez v. City of Los Angeles (2010) 47 Cal.4th 970, 986 et seq. [Code of Civ. Proc., § 1033, subd. (b) applies even in FEHA actions where statutory attorneys' fees may be claimed; court had discretion to deny attorney's fees]; Cruz v. Fusion Buffet, Inc. (2020) 57 Cal.App.5th 221, 231 [court exercised discretion to award costs].)

Plaintiff points to the fact that in his complaint he included claims for injunctive relief and for relief under the Davis-Stirling Act (Davis-Sterling Common Interest Development Act (Civ. Code, § 4000, et seq.) But unless plaintiff recovered relief in the form of an enforcement of the governing documents or injunctive relief, he is not deemed to have recovered under the Act.

For one thing, recovery of attorneys' fees under the Davis-Stirling Act depends on whether the settlement recovery constituted achieving recovery under the Act "'on a practical level' by achieving its main litigation objectives." (Champir, LLC v. Fairbanks Ranch Assn. (2021) 66 Cal.App.5th 583, 590 citing Rancho Mirage Country Club Homeowners Assn. v. Hazelbaker (2016) 2 Cal.App.5th 252, 260 (Rancho Mirage), citing Heather Farms Homeowners Assn. v. Robinson (1994) 21 Cal.App.4th 1568, 1574; see also, Villa De Las Palmas Homeowners Assn. v. Terifaj (2004) 33 Cal.4th 73, 94 [affirming trial court's determination that an association was the prevailing party because "[o]n a 'practical level' [citation], [it] 'achieved its main litigation objective'"]; Almanor Lakeside Villas Owners Assn. v. Carson (2016) 246 Cal.App.4th 761, 773["[T]he test for prevailing party is a pragmatic one, namely whether a party prevailed on a practical level by achieving its main litigation objectives."].)

Nothing in the Davis-Stirling Act suggests we should give more weight to the form of the complaint than to the substance of the claims asserted and relief sought. (Rancho Mirage, supra, 2 Cal.App.5th at p. 260.) In Rancho Mirage, supra, the court affirmed an award of costs and attorneys' fees because the gravamen of the action was to enforce the covenants, conditions & restrictions (CC&R's), although the litigation resulted in a settlement mediated under the Davis-Stirling Act. (Rancho Mirage, supra, at p. 260.) However, in footnote 5, this court cautioned that our conclusion might not apply to every action to enforce a settlement agreement arising out of ADR (ref. Alternate Dispute Resolution) conducted pursuant to the Davis-Stirling Act. (Rancho Mirage, supra, at p. 260, fn. 5.)

The present case began as an action for damages to compensate plaintiff for damage to his property caused by the defendants' replacement of the common area grass with water resistant mulch. Later, plaintiff added claims for breach of governing documents and for injunctive relief, but not for enforcement of the governing documents. Because the cause of action for breach of the governing documents (the claim made under the Davis-Stirling Act) did not seek enforcement of the CC&Rs, but, instead, sought damages for an alleged breach, it did not achieve the main litigation purposes for which the Davis-Stirling Act was enacted. Nor did the settlement arise from ADR under the Davis-Stirling Act. There is nothing to distinguish the settlement agreement in the present case (aside from the plaintiff's attempts to rewrite it) from any other settlement for damage to property reached as a result of a mandatory settlement conference.

Plaintiff's cause of action was not to enforce the CC&Rs, but rather for damages, so it was not, in practical effect, a claim pursuant to the Davis-Stirling Act. Plaintiff settled the case for $20,000 and dismissed his complaint with prejudice pursuant to the agreement, which included no provision pertaining to the governing documents. Plaintiff was not a prevailing party on the cause of action which nominally referred to the Davis-Stirling Act. He is therefore not entitled to a mandatory award of attorneys' fees pursuant to Civil Code section 5975.8

Because plaintiff did not prevail on his purported Davis-Stirling Act claim, jurisdiction for the civil case depends on the amount of the monetary recovery, in the absence of a contractual basis for attorneys' fees. Because plaintiff was awarded less than $25,000 in the settlement agreement, the recovery of costs and/or attorney's fees was a matter within the court's broad discretion.

5. The Failure to File a Noticed Motion For Recovery of Attorneys' Fees Precludes Plaintiff's Recovery.
Next, plaintiff claims that because he is entitled to attorneys' fees as of right, he was not required to file a noticed motion for recovery of such fees. Plaintiff is mistaken.
California Rules of Court, rule 3.1702(b)(1) provides: "A notice of motion to claim attorney's fees for services up to and including the rendition of judgment in the trial court—including attorney's fees on an appeal before the rendition of judgment in the trial court—must be served and filed within the time for filing a notice of appeal under rules 8.104 and 8.108 in an unlimited civil case or under rules 8.822 and 8.823 in a limited civil case."

A party may seek statutory attorney's fees as costs through any of four methods: (1) on noticed motion; (2) at the time a statement of decision is rendered; (3) on application supported by affidavit made concurrently with a claim for other costs; or (4) on entry of a default judgment. (Code Civ. Proc., § 1033.5, subds. (a)(10)(B), (c)(5).) However, in practice, a noticed motion is generally required. (612 South LLC v. Laconic Limited Partnership (2010) 184 Cal.App.4th 1270, 1284.) This is because rule 3.1702 of the California Rules of Court prescribes a noticed motion procedure whenever the court is required to determine whether the requested fee is reasonable or whether the requestor is a prevailing party. (Cal. Rules of Court, rule 3.1702.)

Thus, unless otherwise provided by statute, a noticed motion is required when a party seeks to recover attorneys' fees, even when the alleged attorneys' fees are claimed pursuant to a statutory authorization. (Hardie v. Nationstar Mortgage LLC (2019) 32 Cal.App.5th 714, 720, citing 2 Pearl, California Attorney Fee Awards (3d ed. 2018) § 11.26, p. 11-30.) Here, plaintiff was not awarded costs and attorneys' fees in the settlement, and he did not make an application supported by an affidavit at the same time as he filed his memorandum of costs, so absent a noticed motion, the court had no means to review the reasonableness of the amount he sought to recover.
Plaintiff argues that under the Davis-Stirling Act, recovery of attorneys' fees is mandatory, so a noticed motion is not required. He cites authority, but none which stands for the proposition he asserts. The only means by which attorneys' fees may be recovered in the absence of a noticed motion are those set forth in section 1033.5, addressed above. The lack of a noticed motion by which the trial court could evaluate the merits, vel non, of his claim to any attorneys' fees, much less the six-figure amount he claimed in his memorandum of costs without a shred of documentary support, precludes recovery.

Plaintiff also argues that the trial court erred in not permitting Mr. Rosenblit, the attorney for whose fees plaintiff purports to seek recovery, to provide additional testimony, well after the submission of the memorandum of costs, to justify the attorneys' fees. Plaintiff has not supplied us with any authority for the assertion that he was allowed to call the attorney to testify about attorneys' fees in the absence of a noticed motion or a timely affidavit supporting the amount requested.

Here, plaintiff orally requested permission to call Mr. Rosenblit to testify at the hearing on the motion to strike the memorandum of costs, well after the filing of his original memorandum of costs, and before he padded the original attorneys' fees claim, when it might have been timely. Without a noticed motion for such fees and timely documentation accompanying his memorandum of costs, Mr. Rosenblit's testimony was irrelevant. There was no error.

6. Plaintiff Was Not Entitled to Attorneys' Fees Because He Dismissed His Davis-Stirling Claim with Prejudice and Was, as He Still Is, a Self-Represented Litigant.
The wont of a noticed motion is not plaintiff's only problem with recovery of attorneys' fees. First, the cause of action for which plaintiff claims statutory authorization for attorneys' fees was dismissed with prejudice by plaintiff in return for a monetary recovery. So plaintiff was not a prevailing party in a cause of action for which a statutory award of attorneys' fees is authorized. Plaintiff did not recover under the Davis-Stirling Act and is therefore not entitled to attorneys' fees pursuant to that statute.

Second, plaintiff filed the second amended (and operative) complaint in propria persona, and the vast majority of the fees for which plaintiff seeks recovery as attorneys' fees are "paralegal fees" attributed to plaintiff's work in his own behalf. California follows what is commonly referred to as the American rule, which provides that each party to a lawsuit must ordinarily pay his own attorney fees. (Code Civ. Proc. § 1021; 21st Century Ins. Co. v. Superior Court (2009) 47 Cal.4th 511, 531, citing Gray v. Don Miller & Associates, Inc. (1984) 35 Cal. 3d 498, 506.) The exception to this rule is that attorneys' fees may be claimed where either a contract provision awards such fees to the prevailing party (Civ. Code, § 1717), or where such fees are recoverable by statute. (Code Civ. Proc., § 1021.)

Assuming an award of attorneys' fees is authorized by either contract or statute, awards of attorneys' fees for paralegal time have become commonplace. (Gorman v. Tassajara Development Corp. (2009) 178 Cal.App.4th 44, 92; see also, Sundance v. Municipal Court (1987) 192 Cal.App.3d 268, 274.) The award of such paralegal fees depends on the prevailing practice in a given area and should fully compensate the attorney for his or her work product. (Missouri v. Jenkins (1989) 491 U.S. 274, 284-288 [105 L.Ed.2d 229, 240-243, 109 S.Ct. 2463]; Guinn v. Dotson (1994) 23 Cal.App.4th 262, 268-269.)

The policy encouraging the use of lower cost paralegals rather than attorneys wherever possible was adopted by the United States Supreme Court to encourage cost-effective delivery of legal services and to reduce the spiraling cost of civil rights litigation, which furthers the policies underlying civil rights statutes. (Missouri v. Jenkins, supra, 491 U.S. at p. 288, citing Cameo Convalescent Center, Inc. v. Senn (7th Circ. 1984) 738 F. 2d 836, 846, cert. denied, 469 U.S. 1106 (1985).)

Importantly, the term "attorney's fees," in both legal terms and in general, is the consideration a litigant actually pays or becomes liable to pay in exchange for legal representation by an attorney. (Musaelian v. Adams (2009) 45 Cal.4th 512, 517.) An attorney litigating in propria persona pays no such compensation. (Trope v. Katz (1995) 11 Cal.4th 274, 280 (Trope).) While plaintiff argues that attorney Rosenblit acted as his counsel in some way, he never established the extent of the representation or the precise services delivered, or hourly fees charges. Thus, even without the problem of the lack of noticed motion or the entitlement to attorneys' fees in a limited civil case, plaintiff has not established he is entitled to recover such fees, which would presumably be minimal given the brief period of representation.

Further, in Trope, the Supreme Court held that an attorney who appears in propria persona in an action to enforce a contract could not recover attorney fees under Civil Code section 1717, which provides for an award of reasonable attorney fees "incurred" by the prevailing party in certain actions. (Trope, supra; see also, Lolley v. Campbell (2002) 28 Cal.4th 367, 377.) An exception to this rule appeared in Lolley v. Campbell, supra, where the Supreme Court held that in-house counsel fees were "incurred" and recoverable as against unsuccessful appellants in appeal from decisions by the Labor Commissioner. The court's reasoning was to discourage meritless appeals. But there is no exception to the Trope rule for recovery of attorneys' fees where the party represents himself.

The general rule applies equally to pro se litigants claiming prevailing party statutory attorneys' fee awards, including fees recoverable under the Freedom of Information Act (FOIA) (Pietrangelo v. United States Army (2d Cir. 2009) 568 F.3d 341, 343), or under the common fund theory9 (Leiper v. Gallegos (2021) 69 Cal.App.5th 284, 292), or following a ruling on an anti-SLAPP motion (Taheri Law Group v. Evans (2008) 160 Cal.App.4th 482, 493-494 [self-represented litigant cannot recover attorney fees after prevailing on anti-SLAPP motion]), or any other type of case involving statutory attorneys' fees, whether or not the litigant is an attorney. It should gowithout saying that a paralegal, by definition, is not an attorney, and is therefore not qualified to recovery of attorneys' fees for his own representation.

Thus, just as an attorney who represents himself is not entitled to recover attorneys' fees, a paralegal representing himself is similarly precluded from recovering his own paralegal fees. Paralegal expenses are an adjunct to attorneys' fees and without an attorney acting as a party representative, a paralegal cannot recover fees for his own work. To allow a self-represented litigant to claim his own time as paralegal expense for work on his own case would sanction the unauthorized practice of law. Further, the policy of permitting recovery of paralegal expenses to reduce spiraling legal costs is ill-served by allowing a self-represented paralegal who has padded his bill with numerous and duplicative filings.

It follows, therefore, that a self-represented litigant who is not an attorney is not entitled to recovery of attorneys' fees whether the fees are sought under a contract theory or under a statutory right theory. Here, plaintiff informed the trial court that he was not represented by counsel, but he later included attorneys' fees in his memorandum of costs. He cannot have it both ways and cannot justify an award of attorneys' fees for legal work performed in his own behalf, in propria persona. Because he failed to provide the proper and timely documentation for any actual attorney work done on the case in his original memorandum of costs, he forfeited the right to recover those fees.


The judgment is affirmed. Respondents Seven Hills and Eastern Municipal Water District are awarded costs on appeal.
P. J.
We concur:

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