If you’ve ever read a California Court of Appeal opinion closing out with “each side to bear its own costs on appeal,” you might have presumed that such wording forecloses an award of attorney fees on appeal. It’s okay, you’re probably not alone. And if you have thought that, and still do, now would be a good time to read a recent Court of Appeal decision which holds otherwise.

Stratton v. Beck (2018) 30 Cal.App.5th 901 illustrates the flaw in such thinking. As the Court of Appeal put it, Stratton is an appeal in an action for $300 in unpaid wages which, “transmogrified into a dispute concerning attorney fees totaling nearly 200 times that amount.” The trial court had affirmed a Labor Commissioner’s award and pursuant to statute, also awarded attorney fees to the plaintiff for prevailing in the trial de novo. The Court of Appeal affirmed the trial court’s award, in an opinion that ended with “In the interest of justice, the parties are to bear their own costs of appeal.”

The plaintiff then filed a motion for attorney fees for the appeal. The trial court awarded $57,000 in fees and the defendant appealed yet again. Defendant argued that since attorney fees are included as costs, and the Court of Appeal said each side would bear their own costs, then the plaintiff must have been precluded from obtaining attorney fees for the appeal too.

The Court of Appeal rejected that argument, pointing out that on appeal, “costs” are governed by Code of Civil Procedure section 1034, not sections 1032/1033.5. Those latter sections apply only to costs incurred at the trial court level. Section 1034 delegates the formulation of appellate costs to the Judicial Council. And, as Stratton noted, “Rule 8.278(d)(2) states that ‘Unless the [appellate] 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.’ The plain meaning of rule 8.278(d)(2) is that an award of costs in the court of appeal generally has no bearing on a party’s ability to seek appellate attorney fees in the trial court.” (Emphasis added.)

The upshot is that if there is basis for attorney fees at trial, then attorney fees will be available on appeal, and a Court of Appeal’s disposition of “costs” has nothing to do with attorney fees. At least, not unless the Court of Appeal’s disposition expressly addresses them.

Gary, a State Bar certified appellate specialist, serves as the Chair of Hanson Bridgett’s Appellate Practice. He is on the faculty at U.C. Hastings College of the Law and is also Chair of the Contra Costa County Bar Association’s appellate practice section. He is a frequent contributor to the Daily Journal and other publications.