Protecting Your Client's Right to Recover Attorney Fees/costs

• Publication year: 2020
• Author: Robert R. Walmsley

Protecting Your Client's Right to Recover Attorney Fees/Costs

Robert R. Walmsley

Robert R. Walmsley is a partner of the law firm Jarrette & Walmsley, LLP, with its principal office in Los Olivos, California. Mr. Walmsley has been practicing law in the area of family law for over 32 years. His practice incorporates all aspects of family law, including assisted reproduction, adoptions, guardianship, and termination of parental rights. The firm handles both national and international cases. The firm, and Mr. Walmsley in particular, also handle appellate cases and, in fact, have over 17 published cases.

Pre-Judgment and Appellate Fee/Costs Requests

Family law practitioners often confine themselves to the Family Code as their guiding source. And why not? After all, short of some scattered Civil Procedure sections, e.g. the Discovery Act, and family law rules of court, the Family Code is every practitioner's Bible. However, family law practitioners who confine themselves to the Family Code could find themselves in a trap for the unwary.

One example of this can be found with the issue of attorney fees. Of course, attorney fees are a major issue presented in many family law matters. There are an assortment of Family Code provisions addressing the issue, for example Family Code sections 271 and 2030, just to name a couple. These statutory provisions set forth the basis for an award of fees but do not address the timing in bringing a fee request. What is often overlooked are the rules of court, outside those specific to Family Law matters, concerning requests for attorney fee and costs.

For strategic reasons, attorney fee requests may be delayed or postponed. It may be that one wishes to hold such requests in their hip pocket for use at a more advantageous time. But doing so can result in the loss of one's right to bring such a request. California Rules of Court, rule 3.1702 concerns, generally, requests for attorney fees and costs. It is typically employed in civil and contact actions, but, as interpreted, applies to family law matters.¹ In Marriage of Freemen, husband argued that rules 26 and 870.2 (recodified as rule 3.1702) did not apply to family law matters.² He asserted that while rule 26(d) made good sense in most civil cases, it did not make sense in family law matters which are often tortuous, entail a degree of vitriol and complication, and often involve protracted and multiple appeals. He further argued that requiring parties to seek fees during the last few months before trial, "when the parties are occupied with pretrial preparation, motions, expert depositions, settlement conferences, and other critical, time-sensitive efforts," would be disruptive to all concerned.³ He concluded that the "statutory framework for petitioning the court for attorney fees in family law cases is much more flexible than the 40-day deadline imposed on civil law appeals...."⁴ Not so, the reviewing court observed.

The husband's argument

runs counter to the plain language of the rule, which makes no exception for family law cases. Whether there should be one or not is within the discretion of the Judicial Council under its rulemaking authority; we are not empowered to embroider an exception upon a rule the Council has adopted.⁵

The court further observed that it "has been recognized that rule 870.2 applies generally to all applications for attorney fees incurred on post-judgment appeals."⁶

The rule presents as straightforward.

Except as otherwise provided by statute, this rule applies in civil cases to claims for statutory attorney's fees and claims for attorney's fees provided for in a contract. Subdivisions (b) and (c) apply when the court determines entitlement to the fees, the amount of the fees, or both, whether the court makes that determination because the statute or contract refers to "reasonable" fees, because it requires a determination of the prevailing party, or for other reasons.⁷

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Subdivision "b" of rule 3.702 then provides the request for attorney fees shall be served and filed within the time for filing notice of appeal under rules 8.104 and 8.108 in unlimited civil cases. That time is typically sixty days from rendition and service of the appealable judgment.⁸ Failure to file and serve, an attorney fee request within such time precludes a trial court from granting a fee request. Subject to certain time restraints, parties are free to enter into a stipulation to extend the period for filing a fee request.⁹

The Freeman court expressly observed that rule 3.1702...