Opinion
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Orange County No. 07CC11902, Gregory Munoz, Judge.
Paul, Plevin, Sullivan & Connaughton, Richard A. Paul and Kari D. Searles for Defendant and Appellant.
Juan Hong, in pro. per., for Plaintiff and Respondent.
OPINION
RYLAARSDAM, ACTING P. J.
In Hong v. Searles (Feb. 5, 2009, G040282) [nonpub. opn.] we affirmed an order granting the special motion to strike plaintiff Juan Hong’s complaint filed by the defendants in that case, including defendant Regents of the University of California, under Code of Civil Procedure section 425.16 (anti-SLAPP motion; all further statutory references are to this code). We also affirmed the award of attorney fees and costs to defendants. (Hong v. Searles, supra, G040282, p. 2.) After remittitur issued, defendant timely filed a memorandum of costs seeking both attorney fees and costs itemizing all amounts claimed. The court granted without prejudice Hong’s motion to tax the attorney fees on the ground defendant should have filed a noticed motion and not a cost memorandum. It stated, “Unless attorney[] fees are fixed without the necessity of court intervention, a noticed motion is required.... Since the court must necessarily determine who the prevailing party is and the amount of the fees, a notice[d] motion is required.”
When defendant submitted the same information in the form of a noticed motion five days later, the court denied it as untimely. It then denied defendant’s motion for relief from default under section 473.
Defendant asserts each of these rulings was erroneous. We agree. But because we decide the original memorandum of costs was sufficient we need not address the other two arguments.
Section 425.16, subdivision (c) states that the prevailing party in an anti-SLAPP motion “shall be entitled to recover [its] attorney[] fees and costs.” This requires the court to award these amounts. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131.) Moreover our original opinion mandated such an award. (Hong v. Searles, supra, G040282, p. 12.) Thus, contrary to the court’s ruling, it had no need to determine a prevailing party.
Although the prevailing party may claim attorney fees through the mechanism of a noticed motion (Melbostad v. Fisher (2008) 165 Cal.App.4th 987, 992), a motion is not required. Rather, a party may also seek the fees “through the filing of a subsequent... cost memorandum [citation]” (Christian Research Institute v. Alnor (2008) 165 Cal.App.4th 1315, 1320), as was done here. The fact that in other anti-SLAPP cases fees were sought by noticed motion (e.g., American Humane Assn. v. Los Angeles Times Communications (2001) 92 Cal.App.4th 1095, 1103) does not mean it is the exclusive method. And, contrary to plaintiff’s argument based on an abbreviated and misleading quotation from the opening brief, defendant does not advocate that cases allowing recovery of fees by motion should be overruled.
California Rules of Court, rule 3.1702 does not change the outcome. That rule provides that a motion must be made to recover attorney fees, “[e]xcept as otherwise provided by statute....” (Cal. Rules of Court, rule 3.1702(a), (b).) Here, because attorney fees are authorized by section 426.16, section 1033.5 applies. It declares that when a party is statutorily entitled to attorney fees, the fees may be claimed as costs. (§ 1033.5, subd. (c)(5).)
None of plaintiff’s other arguments to the contrary persuades otherwise. We need not address any pertaining to denial of the noticed motion for fees or the motion under Code of Civil Procedure section 473 since, as set out above, we do not decide the appeal on those grounds.
Plaintiff’s claim the appeal was not timely has no merit. The court granted plaintiff’s motion to tax costs on July 16, 2009. The court did not require a written order be prepared and no notice of entry was served. Thus, the time for filing an appeal is 180 days after the order. (Cal. Rules of Court, rule 8.104(a)(3).) The notice of appeal from that ruling was filed on December 9, 2009, within the 180 day period.
Plaintiff raises two technical arguments we rejected in two other cases in which plaintiff sued defendant and others, i.e., the memorandum of costs was defective because the form and verification were incorrect. (Hong v. Grant (Jun. 29, 2010, G042769) [nonpub. opn.]; Hong v. Drake (Jun. 29, 2010, G042565) [nonpub. opn.].)
The verification on the Judicial Council approved cost bill states: “To the best of my knowledge and belief this memorandum of costs is correct and these costs were necessarily incurred in this case.” Plaintiff claims California Rules of Court, rule 3.1700(a)(1), which provides that a “memorandum of costs must be verified by a statement of the party[ or] attorney... that to the best of his or her knowledge the items of cost are correct and were necessarily incurred in the case, ” requires that the exact language be used and addition of the language “and belief” invalidates the verification. But plaintiff fails to provide any authority to support his premise and there is none. Nothing in rule 3.1700(a)(1) states that the verification language must be quoted exactly.
Furthermore, the Judicial Council optional form is commonly used. (California Rules of Court, rule 1.35(a) [“Forms approved by the Judicial Council for optional use, wherever applicable, may be used by parties and must be accepted for filing by all courts”]; see also, e.g., Anthony v. City of Los Angeles (2008) 166 Cal.App.4th 1011, 1014 [award of fees requested by using optional form affirmed].) Use of the form was proper even though there is another form that may be used to seek attorney fees after an appeal.
Plaintiff’s argument defendant is not entitled to attorney fees because two of the defendants are lawyers in the firm appearing for defendants is also off the mark. As defendant points out, the two lawyers are not seeking fees. Rather it is defendant, which did not represent itself and which employed the law firm and incurred and paid fees, that filed the cost memorandum. (Ramona Unified School Dist. v. Tsiknas (2005) 135 Cal.App.4th 510, 524-525.)
Plaintiff’s attack on the granting of the anti-SLAPP motion itself is not well taken. That issue was resolved in the original appeal. Likewise, the amount of attorney fees, which plaintiff claims is unreasonable and outrageous, was not considered by the trial court and is not before us.
The order is reversed and the matter is remanded to the trial court to determine the amount of attorney fees and costs to which appellant is entitled pursuant to its memorandum of costs. Appellant is awarded costs on appeal.
WE CONCUR: MOORE, J., ARONSON, J.