Filed 10/20/20 Tietz v. Chaddick CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
NATALIE GRACE TIETZ, 2d Civil No. B303694
(Super. Ct. No. 56-2019-
Plaintiff and Appellant, 00529069-CU-HR-VTA)
(Ventura County)
v.
KATHRYN CHADDICK,
Defendant and Respondent.
Natalie Grace Tietz appeals an order awarding Kathryn
Chaddick $1,435 attorney fees and costs after appellant
dismissed her civil anti-harassment action. (§ 527.6.)1 Chaddick
filed a motion for $1,000 attorney fees (§ 526.7, subd. (s)) and had
to pay a $435 first appearance fee to put the motion on calendar.
Granting the motion, the trial court awarded Chaddick $1,435
fees and costs. We affirm.
1 All statutory references are to the Code of Civil Procedure.
Procedural History
Appellant, a hair stylist at Chaddick’s beauty salon, was
terminated and filed an anti-harassment petition against
Chaddick on June 7, 2019. (§ 527.6.) Appellant dismissed the
action on August 6, 2019, after the trial court declined to issue a
TRO and continued the trial.
Chaddick filed a motion for attorney’s fees a month later,
stating that she paid a $1,000 flat fee to her attorney to represent
her in the action. Appellant opposed the motion on the ground
there was no “lodestar” accounting of the fees incurred.
Chaddick’s trial attorney responded with a declaration of the
work performed and said he had to pay a first appearance fee
($435) to file the motion for attorney’s fees.
The trial court found that Chaddick was the prevailing
party within the meaning of section 527.6 and that appellant
“was put on notice since July 22nd, 2019, of the request for
attorney’s fees and costs. There was no motion to tax costs, so
I’m going to order attorney’s fees and costs in the amount of
$1,435, and that’ll be the order.” The trial court overruled
appellant’s objection that “there was no notice in the moving
papers for costs . . . and there was no Memorandum of Costs
filed.”
Form Over Substance
Appellant concedes the failure to file a memorandum of
costs is not jurisdictional but claims it “must” be filed before a
trial court awards costs. (Hydratec, Inc. v. Sun Valley 260
Orchard & Vineyard Co. (1990) 223 Cal.App.3d 924, 929 [time
provisions for filing a memorandum of costs, while not
jurisdictional, are mandatory]; but see San Francisco Unified
School Dist. v. Board of Nat’l Missions (1954) 129 Cal.App.2d
2
236, 242-243 [failure to file costs bill within specified time can
only be attacked by motion to tax costs].) It is a half-clever
argument that appellant likens to “Sauce for the goose. . . .”2
Appellant relies on California Rules of Court, rule 3.1700 which
states: “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 . . . .” (Id., subd.
(a)(1).)
The problem is that appellant never served Chaddick with
the dismissal and waited until November 20, 2019 to file and
serve the entry of judgment, well after the trial court awarded
fees and costs. Appellant knew about the fees and costs request
because Chaddick prayed for $1,000 attorney fees and $435 costs
in her response to appellant’s TRO request. The superior court
clerk collected the first appearance fee ($435) on September 10,
2019, after appellant dismissed the action.
The trial court awarded Chaddick attorney fees because
she was the prevailing party within the meaning of section 527.6,
subdivision (s). (See Adler v. Vaicius (1993) 21 Cal.App.4th 1770,
1777 [fees awarded to defendant where plaintiff obtained a TRO
and dismissed the anti-harassment complaint].) If Chaddick was
the prevailing party for purposes of attorney fees, she was also
entitled to costs. “Except as otherwise expressly provided by
2The phrase “‘too clever by half’ was ‘coined in George
J. Whyte-Melville’s 1858 book, ‘The Interpreter,’ and means “too
smart for one’s own good.”’” (In re Jet ICU Leasing (Bankr. M.D.
Fla. 2020) 614 B.R. 385, 388, fn.3.)
3
statute, a prevailing party is entitled as a matter of right to
recover costs in any action or proceeding.” (§ 1032, subd. (b),
italics added.) Rule 3.1170 (governing when a memorandum of
costs must be filed) does not trump section 1032, where fees and
costs are awarded before the dismissal is served or before the
entry of judgment is filed and served. “If a rule is inconsistent
with a statute, the statute controls.” (Hess v. Ford Motor
Co. (2002) 27 Cal.4th 516, 532.)
Disposition
The judgment (order for $1,000 attorney’s fees and $435
costs) is affirmed. Chaddick is awarded costs on appeal.
NOT TO BE PUBLISHED.
YEGAN, J.
We concur:
GILBERT, P. J.
PERREN, J.
4
Denise Trerotola, Commissioner
Superior Court County of Ventura
______________________________
Richard L. Francis for Plaintiff and Appellant.
Thomas L. Engel for Defendant and Respondent.