When Are Attorneys Fees Recoverable In California

To recover attorneys fee in civil litigation, a party must be meet these two requirements:

1. Prevailing Party The party seeking to recover attorneys’ fees must be the prevailing party. “Prevailing party’ includes the party with a net monetary recovery, a defendant in whose favor a dismissal is entered, a defendant where neither plaintiff nor defendant obtains any relief, and a defendant as against those plaintiffs who do not recover any relief against that defendant. When any party recovers other than monetary relief and in situations other than as specified, the ‘prevailing party’ shall be as determined by the court, and under those circumstances, the court, in its discretion, may allow costs or not and, if allowed may apportion costs between the parties on the same or adverse sides pursuant to rules adopted under Section 1034.” CCP 1032(a)(4)
2. Statute or Contract that provides for recovering attorney’s fees. “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.” Rules of Court 3.1702(a)

When should the prevailing party move for attorneys fees?

The prevailing party through their civil litigation attorney must move for attorneys’ fees before a judgment is entered. Rule 3.1702. states that the time to file a motion for attorneys fees:

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(1) Time for motion

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.

(2) Stipulation for extension of time

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The parties may, by stipulation filed before the expiration of the time allowed under (b)(1), extend the time for filing a motion for attorney’s fees:

(A) Until 60 days after the expiration of the time for filing a notice of appeal in an unlimited civil case or 30 days after the expiration of the time in a limited civil case; or

(B) If a notice of appeal is filed, until the time within which a memorandum of costs must be served and filed under rule 8.278(c) in an unlimited civil case or under rule 8.891(c)(1) in a limited civil case.

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