Anthony Stratton v. Thomas E. Beck

This case began as a dispute over approximately $300 in

unpaid wages. It has since transmogrified into a dispute

concerning attorney fees totaling nearly 200 times that amount

and is here now for the second time. In the previous appeal,

appellant Thomas Beck challenged the trial court’s award of

attorney fees for work that respondent Anthony Stratton’s

attorney performed in that forum. We affirmed the trial court’s

ruling, holding that Stratton’s motion for $31,365 in statutory

attorney fees was timely and supported by substantial evidence.

At the conclusion of our opinion, we stated, “In the interest of

justice, the parties are to bear their own costs of appeal.”

(Stratton v. Beck (2017) 9 Cal.App.5th 483, 487, 498 (Stratton)).

We reiterated that allocation in the ensuing remittitur: “The

parties are to bear their own costs of appeal.”

The parties interpreted this directive differently. Beck

maintained that “costs” included attorney fees on appeal,

precluding Stratton from seeking them under Labor Code section

98.2, subdivision (c). Stratton disagreed and filed a motion in the

trial court seeking $114,840 in appellate attorney fees—a

lodestar of $57,420, doubled in light of the complexity of the

underlying issues. The trial court awarded Stratton the lodestar

and denied Beck’s motion to reconsider or clarify the ruling. It

also awarded Stratton an additional $9,020 in fees he incurred

opposing the motion to reconsider.

Beck appealed. He contends that our order on costs

deprived the trial court of jurisdiction to entertain Stratton’s

motion for appellate attorney fees. He further argues that the

trial court erred in denying his motion to reconsider or clarify, in

which he requested a more thorough explanation for the

appellate attorney fee award. We disagree and affirm.

3

FACTUAL AND PROCEDURAL HISTORY

I. Prior Appeal

This case began when Beck’s employee of two months,

Stratton, quit and claimed he was owed wages of $1,075.

(Stratton, supra, 9 Cal.App.5th at p. 487.) For reasons that

remain unclear, Beck’s payroll service paid Stratton $771.45

rather than the $1,075 he claimed he was owed. (Ibid.) Stratton

filed a claim for the approximately $300 difference with the

Division of Labor Standards Enforcement, the state agency

empowered to enforce California labor laws. (Ibid.) “After

conducting an administrative hearing, the Labor Commissioner

awarded Stratton the $303.50 he requested, plus an additional

$5,757.46 in liquidated damages, interest, and statutory

penalties, for a total award of $6,060.96.” (Ibid.)

Beck sought de novo review of the Labor Commissioner’s

order in the Los Angeles County superior court pursuant to Labor

Code section 98.2, subdivision (a). (Stratton, supra, 9

Cal.App.5th at pp. 487-488.) The trial court awarded Stratton

$6,778.85, exclusive of fees and costs. (Id. at p. 489.) Stratton’s

attorney sought fees under Labor Code section 98.2, subdivision

(c) (“Labor Code section 98.2(c)”), which provides: “If the party

seeking review by filing an appeal to the superior court is

unsuccessful in the appeal, the court shall determine the costs

and reasonable attorney fees incurred by the other parties to the

appeal, and assess that amount as a cost upon the party filing the

appeal. An employee is successful if the court awards an amount

greater than zero.” (Lab. Code, § 98.2(c).) The trial court

awarded Stratton $31,365 in attorney fees. (Stratton, supra, 9

Cal.App.5th at p. 491.)

4

Beck appealed, arguing that the motion for attorney fees

was untimely because the underlying civil case was limited

rather than unlimited. (Stratton, supra, 9 Cal.App.5th at p. 491.)

He also challenged the reasonableness of the fee award. (See id.

at pp. 495-497.) We affirmed the trial court’s judgment but

directed the parties “to bear their own costs of appeal,” “[i]n the

interest of justice.” (Id. at p. 498.)

We denied Beck’s petition for rehearing. Beck then filed a

petition for review of our decision, but the Supreme Court

rejected it as untimely. The Supreme Court also denied Beck’s

subsequent motion for reconsideration of that decision.

Beck, an attorney who is representing himself, then

reached out to Stratton’s counsel, David Balter, to arrange

payment of the fees. Balter informed Beck that he planned to

seek appellate fees in the sum of $48,375. Beck responded by

requesting authority for the proposition that Balter could pursue

appellate fees in light of our order that the parties were to bear

their own costs. Balter directed Beck to California Rule of Court,

rule 8.278(d)(2) (“rule 8.278(d)(2)”), which provides, “Unless the

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.” He also cited a case and a treatise.

Beck disputed the applicability of these authorities.

Several weeks later, the remittitur from our previous

decision issued. Like our order, it stated, “The parties are to bear

their own costs of appeal.”

II. Motion for Appellate Attorney Fees

Balter timely filed a motion in the trial court requesting

appellate attorney fees pursuant to Labor Code section 98.2(c).

He sought a lodestar of $57,420, to compensate for 127.6 hours of

5

work at a rate of $450 per hour, and a multiplier of two in light of

“[t]he high quality work which clarifies an important issue where

much confusion had existed.” Balter attached a declaration and

billing records documenting 113.6 of the claimed hours worked;

he estimated he would incur the additional 14 hours “to: review

defendant’s anticipated opposition, research and prepare a reply

memorandum, travel to and from the hearing, and attend the

hearing to argue the motion.”

Prior to filing an opposition, Beck filed a motion in this

court to recall the remittitur “to clarify whether this court’s

disposition stating that the parties bear their own costs includes

attorney fees.” We denied the motion.

Beck obtained counsel, who filed an opposition to the

motion for appellate fees. The opposition asserted that our

directive that the parties bear their own costs “necessarily means

that the parties also bear their appellate attorney fees.” To

support this position, it argued that statutory attorney fees are

an element of costs, and that rule 8.278(d)(2) was not on point

“because there was no award of appeal costs; on the contrary,

there was a denial of any costs award.” In the alternative, it

argued that even if fees were authorized, the amount claimed

was unwarranted due to “dubious billing entries,” block billing,

and lack of a basis for the claimed multiplier. The opposition did

not mention the 14 estimated hours or Code of Civil Procedure

section 1033, subdivision (a)1, which vests the trial court with

discretion to determine costs “in a case other than a limited civil

case . . . where the prevailing party recovers a judgment that

could have been rendered in a limited civil case.” Balter filed a



1All further statutory references are to the Code of Civil

Procedure unless otherwise indicated.

6

reply, and Beck’s counsel filed a surreply. The surreply likewise

was silent as to the 14 hours and section 1033, subdivision (a).

At the hearing on the motion, the trial court told Beck and

his counsel it was “not at all persuaded” by their argument that

costs include attorney fees. It further stated, “I think there’s

clear law that costs—in the way they referred to it—does not

include attorney’s fees.” The court also referred them to rule

8.278(d)(2). Beck’s counsel argued that the rule did not apply

because “there was no award of appeal cost. It was expressly

denied, no cost to any party.” In the alternative, Beck argued

that “the Code of Civil Procedure takes precedence” over rule

8.278(d)(2); in particular, he pointed to section 1033.5,

subdivision (a)(10), which provides that attorney fees authorized

by contract, statute, or law “are allowable as costs under Section

1032.” Beck also attempted to distinguish two of the cases Balter

relied on, Butler-Rupp v. Lourdeaux (2007) 154 Cal.App.4th 918

(Butler-Rupp) and Mustachio v. Great Western Bank (1996) 48

Cal.App.4th 1145 (Mustachio), on the grounds that both arose

under section 1717 and required the trial court to determine

which party was the “prevailing party” before awarding fees.

The trial court took the matter under submission and

issued its ruling the next day. The court’s minute order stated:

“After an in-chambers review, the court makes the following

ruling: [¶] Motion for an award on post-judgment and appellate

attorney’s fees is granted. [¶] The order is signed and filed this

date.” The accompanying order was prepared on the proposed

order Balter submitted with the motion, which stated in

pertinent part, “The court, having considered the filings and

arguments of both parties, finds good cause for granting of the

motion.” The court crossed out Balter’s requested amount of

7

$114,840 and wrote in the lodestar, $57,420.

III. Motion for Reconsideration/Clarification

Beck, acting in propria persona, subsequently filed a

“motion for reconsideration/clarification of October 17, 2017

ruling granting Stratton’s post appeal fee motion, CCP

§ 1008(a)(b).” He argued that the trial court committed “manifest

error” by issuing an order that “remain[ed] silent on each of the

key issues the opposition to Stratton’s motion pointed out.” Beck

asserted that “it cannot be determined how and why the court

assumed it had jurisdiction in light of the appellate court’s denial

of costs to Stratton and whether or not in the court’s thoughts,

costs are or are not the equivalent of L.C. § 98.2(c) fees.” Beck

further asserted that the order impermissibly overruled the

ruling of another trial court judge, who apparently stayed

payment of the fees while the appeal was pending on the grounds

that attorney fees were costs.2 Beck also reiterated his earlier

attempts to distinguish Butler-Rupp and Mustachio. In his

accompanying declaration, Beck asserted that he “consider[ed]

the failure of the court to issue a reviewable ruling to be a fact

discovered only after the October 16th hearing.”

Balter opposed the motion on the grounds that it failed to

meet the jurisdictional threshold for reconsideration because it

did not allege new or different facts, circumstances, or law as

required by section 1008, subdivision (a). He argued that the

order itself did not constitute a new fact that properly could

support the motion. He also disputed Beck’s contentions that the

trial court lacked jurisdiction to award attorney fees, and that a

prior order staying enforcement of the judgment precluded the



2The appellate record does not contain any documents

relevant to this assertion.

8

court from awarding attorney fees incurred on appeal.

In reply, Beck asserted that “[t]he most significant new

facts which prompted this motion are the delivery of an order into

which the court penciled in $57,420 (which calculates from

$450/hr x 127.6 hours) without a mention of the court’s reasoning

on any vital contested issue in the pleadings by either side.” He

also pointed to an “additional new fact,” “the absence of any

insight as to why this court granted compensation for 14 hours of

Mr. Balter’s time set forth in his August 3, 2017 declaration (¶ 9)

attesting to an estimate of 14 additional hours of time beyond the

113.6 hours claimed through August 3rd.” In addition, Beck

invoked section 1033 for the first time, arguing that the court

should have taken the relatively small size of Stratton’s recovery

into account when awarding appellate attorney fees.

The trial court held a hearing on the motion. At the outset,

it told the parties that its tentative was to deny the motion on the

grounds that there were no new facts or law, and no need for

clarification. It further stated that it was “not going to rehear an

argument about the definition of costs.” It then allowed the

parties to be heard. Beck argued that he filed the motion because

he “had to deduce where you came up with that money for that

amount,” emphasizing his uncertainty about the basis for the 14

estimated hours. The trial court told Beck it did not believe the

14 hours constituted a new fact, and Beck responded it did

“[b]ecause I didn’t realize until the number came out that you

were awarding for the full amount of money that the motion

demanded, even though the motion said as of August 3rd, and left

it at that, that 14 hours of those dollars were merely estimates.”

Balter responded, accurately, that he had asked for the 14 hours

in the moving papers.

9

Beck also explained to the court that his goal in filing the

motion was to get “insight as to why, whether this statute

controlled or that statute controlled.” He acknowledged that he

could calculate the time and hourly fee bases of the award “by

deduction,” and mainly wanted to know whether the court

applied rule 8.278(d)(2) or considered section 1033, subdivision

(a). The court took the matter under submission.

It subsequently issued a minute order denying the motion

for reconsideration. That order stated: “The motion for

reconsideration is DENIED. The court notes, however, as

follows: In determining the amount of reasonable attorneys fees

awarded in the October 17, 2017 order, the court accepted the

rate, [sic] and rationale proposed by plaintiff, but declined to

apply the 2.0 multiplier requested by plaintiff.”

Beck timely filed a notice of appeal.3

DISCUSSION

I. The Trial Court Had Jurisdiction to Award Fees

Beck contends that this court’s order directing the parties

to bear their own costs of the prior appeal “implicitly denied

statutory attorneys fees on appeal to Stratton’s counsel,” and

deprived the trial court of jurisdiction to consider Balter’s motion,

because section 1033.5 and Labor Code section 98.2(c) define

attorney fees as a component of costs. He further argues that

rule 8.278(d)(2) does not alter this conclusion in this case,

because we “ordered otherwise” by directing the parties to bear



3Balter subsequently filed a motion for attorney fees

incurred in connection with the motion for reconsideration. The

trial court awarded him $9,090, “without invoking CCP 1033.”

The trial court also granted Beck’s request for stay of execution of

that award until completion of the instant appeal.

10

their own costs. In addition, he contends that the trial court

exceeded its authority by contradicting the earlier determination

of a different trial judge that the previously awarded fees were

costs that did not have to be paid while this matter previously

was pending on appeal.

Where, as here, the evidence underlying a trial court’s

determination that it has subject matter jurisdiction is not in

dispute, the existence of subject matter jurisdiction presents a

legal question subject to de novo review. (Saffer v. JP Morgan

Chase Bank, N.A. (2014) 225 Cal.App.4th 1239, 1248.) The trial

court’s interpretation of both statutes (Goodman v. Lozano (2010)

47 Cal.4th 1327, 1332) and court rules (In re Daniel M. (1996) 47

Cal.App.4th 1151, 1154) likewise is subject to de novo review. We

also review de novo the trial court’s determination of the legal

basis for an award of attorney’s fees. (Butler-Rupp, supra, 154

Cal.App.4th at p. 923.)

Attorney fees are recoverable as costs only where expressly

authorized by contract or statute. (§ 1021; Session Payroll

Management, Inc. v. Noble Construction Co., Inc. (2000) 84

Cal.App.4th 671, 677.) The relevant statute here is Labor Code

section 98.2(c), which provides: “If the party seeking review by

filing an appeal to the superior court is unsuccessful in the

appeal, the court shall determine the costs and reasonable

attorney’s fees incurred by the other parties to the appeal, and

assess that amount as a cost upon the party filing the appeal. An

employee is successful if the court awards an amount greater

than zero.” Although by its terms Labor Code section 98.2(c)

applies only to “an appeal to the superior court,” “[a] statute

authorizing an attorney fee award at the trial court level includes

appellate attorney fees unless the statute specifically provides

11

otherwise.” (Evans v. Unkow (1995) 38 Cal.App.4th 1490, 1499;

see also Morcos v. Board of Retirement (1990) 51 Cal.3d 924, 927

[“statutes authorizing attorney fee awards in lower tribunals

include attorney fees incurred on appeals of decisions from those

lower tribunals”].)

Beck contends this general principle is not applicable to

Labor Code section 98.2(c), because it contains “unambiguous,

explicit limiting terms” restricting its ambit to fees incurred in

the trial court. We disagree. Both Eicher v. Advanced Business

Integrators, Inc. (2007) 151 Cal.App.4th 1363, 1384 and Nishiki v.

Danko Meredith, APC (2018) 25 Cal.App.5th 883, 899-900 have

held that Labor Code section 98.2(c) authorizes appellate

attorney fees, and we are not persuaded by Beck’s efforts to

distinguish these and authorities interpreting other fee-shifting

statutes.

When attorney fees are recoverable pursuant to statute,

contract, or law, section 1033.5 provides that they are “allowable

as costs under Section 1032.” (§ 1033.5, subd. (a)(10).) Therefore,

Beck argues, our order that the parties bear their own costs

necessarily included appellate attorney fees, which are defined as

costs by section 1033.5, subdivision (a). This argument ignores

the statutory distinction between appellate costs and trial costs.

“[T]he very language and context of . . . section 1033.5

indicates [sic] that it does not govern costs on appeal.” (Alan S. v.

Superior Court (2009) 172 Cal.App.4th 238, 259.) “The context of

section 1032—using language that speaks of plaintiffs,

defendants, and prevailing parties being those with a ‘net

monetary recovery’—implies that the statute is directed at the

trial court. So does the context of section 1033, with its reference

to a party recovering a judgment. Section 1033.5, which is a list

12

of what is, and is not, allowable as a cost, similarly is trial-courtoriented,

with items exclusively related to trial court proceedings

(e.g., references to jury fees, taking depositions, process servers,

etc.).” (Ibid.)

“Moreover, another statute—Code of Civil Procedure

section 1034, subdivision (b)—tells us specifically what law

governs costs on appeal.” (Alan S. v. Superior Court, supra, 172

Cal.App.4th at p. 259.) It provides, “The Judicial Council shall

establish by rule allowable costs on appeal and the procedure for

claiming those costs.” (§ 1034, subd. (b).) That rule is California

Rules of Court, rule 8.278, which is entitled “Costs on appeal.”

As section 1033.5 does for trial-related costs, rule 8.278

enumerates “recoverable costs,” which it expressly provides are

the only costs that may be recovered on appeal. (Cal. Rules of

Court, rule 8.278(d)(1).) Those costs include filing fees, brief

printing, and the cost to produce additional evidence on appeal.

(Cal. Rules of Court, rule 8.278(d)(1)(A), (C), (E).) They do not

include attorney fees. (See generally Cal. Rules of Court, rule

8.278(d)(1).)

Rule 8.278(d)(2) further underscores the distinction

between trial costs, which may include attorney fees, and

appellate costs, which do not. It provides, “Unless the 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.

Indeed, a leading treatise instructs, “Unless an appellate decision

expressly awards or denies fees, any decision on allocation of

appellate costs is irrelevant to a later motion for fees in the trial

13

court.” (Pearl, California Attorney Fee Awards (2d ed. Cal. CEB)

Obtaining Fees for Appellate Services, § 12.4.)

Beck argues that rule 8.278(d)(2) is not applicable here,

however, because we denied rather than awarded costs or

“ordered otherwise” by ordering the parties to bear their own

costs. These arguments were rejected in Butler-Rupp, supra, 154

Cal.App.4th 918, which we find closely analogous and extremely

persuasive.

Butler-Rupp dealt with a case that was before the court of

appeal for the second time. In its first ruling, the court of appeal

affirmed the judgment of the trial court in part and reversed in

part. It also stated, “‘The parties to the appeal are to bear their

own costs of appeal.’” (Butler-Rupp, supra, 154 Cal.App.4th at p.

922.) On remand, the respondents filed a motion for attorney

fees they incurred in connection with the appeal. The trial court

granted their motion. (Ibid.) The appellants then brought a

second appeal challenging the award of appellate fees. They

argued that “the trial court had no jurisdiction to award appellate

attorney fees to respondents because [the court of appeal] did not

award appellate costs to respondents in the prior appeal.” (Ibid.)

Like Beck, they contended that a prior version of current rule

8.278(d)(2) did not apply because no “award” of costs was made.

(Id. at p. 925.) That prior rule, California Rule of Court, rule

27(c)(2), was very similar to the current version of rule

8.278(d)(2), stating, “‘Unless the court orders otherwise, an award

of costs neither includes attorney’s fees on appeal nor precludes a

party from seeking them under rule 870.2.’” (Ibid.)

The court acknowledged that it “did not ‘award’ either

party their costs” when it directed each to bear its own. (ButlerRupp,

supra, 154 Cal.App.4th at p. 925.) Nevertheless, it

14

concluded that its order did not bar “an award of attorney fees

under these circumstances.” (Ibid.) The court looked to an even

earlier iteration of current rule 8.278(d)(2), former rule 26(a)(4),

which provided: “Unless otherwise ordered by the reviewing

court, (i) an order or judgment regarding costs on appeal neither

includes attorney fees on appeal nor precludes any party from

seeking fees on appeal; and (ii) the issue of entitlement to

attorney fees on appeal shall be determined by motion made in

the trial court under rule 870.2.” (Ibid.) Under this rule, it was

clear that, unless specifically addressed, an “order or judgment

regarding costs on appeal” did not include attorney fees; nor did

it preclude a party from seeking them.

The court examined the legislative history underlying the

changes in the rule and determined that the change from the

more expansive “order or judgment regarding costs on appeal” to

the seemingly more restrictive “award of costs” was not intended

to be substantive. (Butler-Rupp, supra, 154 Cal.App.4th at p.

925.) It additionally stated in dicta that a conclusion otherwise

would likely render former rule 27(c)(2) inconsistent with section

1032’s prescription that attorney fees are recoverable to

prevailing parties irrespective of whether they prevail in an

appeal that does not result in final judgment. (Ibid.) The court

further emphasized that “former rule 27(c)(2) did not state that

attorney fees may be awarded only if the Court of Appeal decides

to award costs. It simply stated that where costs are awarded,

such an award does not include attorney fees . . . . Attorney fees

are not included as recoverable” under the forerunner of rule

8.278(d)(1), former rule 27(c)(4). (Id. at p. 927.) It ultimately

concluded, “In sum, in arguing that an award of attorney fees on

appeal is dependent on the appellate court’s issuance of an award

15

of costs, appellants read a limitation into the rule that finds no

linguistic or historical support.” (Ibid.)

Butler-Rupp is indistinguishable from the instant case.

Beck argues otherwise, pointing to the court’s use of the phrase

“under these circumstances” and the different underlying basis

for the attorney fee award, Civil Code section 1717. The basis for

the fees awarded in Butler-Rupp was not relevant to its textual

and historical analysis of the relevant appellate court rule. The

same appellate court rule applies regardless of the basis on which

a party may seek fees. The court’s use of the phrase “under these

circumstances” likewise did not limit its reasoning to the precise

factual scenario presented or to cases involving Civil Code section

1717. The court made that statement in the following context:

“Appellants read much significance into the 2003 amendments to

rule 26. They contend respondents cannot recover the fees

incurred in the prior appeal because our remittitur directed each

party to bear its own costs on appeal. The argument proceeds

that since no ‘award’ of costs was made, attorney fees are not

recoverable. Appellants claim that under rule 27(c)(2), ‘a trial

court on remand has jurisdiction to award appellate-attorney[’]s

fees only when the Court of Appeal makes an “award of costs.”’

(Italics added.) Although we did not ‘award’ either party their

costs, we do not believe our order bars an award of attorney fees

under these circumstances.” (Butler-Rupp, supra, 154

Cal.App.4th at p. 925, italics added.) “These circumstances”

appears to refer to situations in which an appellate court denies

costs, which is exactly the posture of the instant case.

Beck also takes issue with Butler-Rupp’s reliance on

Mustachio, supra, 48 Cal.App.4th 1145, another case in which

fees were awarded under Civil Code section 1717. Butler-Rupp

16

credited Mustachio with “establish[ing] the rule that trial courts

retain discretion to award attorney fees incurred on appeal to the

eventual prevailing party without any order from the appellate

court, even where the appellate court, in its remand order, orders

the parties to bear their own . . . costs.” (Butler-Rupp, supra, 154

Cal.App.4th at p. 924.)

In Mustachio, the appellate court ordered the parties to

bear their own costs after their first appeal. (Mustachio, supra,

48 Cal.App.4th at p. 1149.) Plaintiff Mustachio then moved for

attorney fees on remand, which the trial court awarded.

Defendant Great Western Bank appealed, arguing that “by

ordering each party to bear its own costs on appeal, this court

also determined that the parties should bear their own attorney’s

fees on appeal.” (Ibid.)

The court of appeal rejected that contention thusly: “‘Civil

Code section 1717 validates the type of contractual provision

involved here and requires the courts to award fees to the

prevailing party in actions on contracts containing such clauses. .

. . [I]t is well settled a party who prevails on appeal is not

entitled under a section 1717 fee provision to the fees he incurs

on appeal where the appellate decision does not decide who wins

the lawsuit but instead contemplates further proceedings in the

trial court. [citations.] . . . The provisions allowing costs on

appeal (Code Civ. Proc., § 1034 and [former] Cal. Rules of Court,

rule 26), however, are entirely separate from the contractual

provision for fees and do not depend on the party winning the

appeal being the ultimate prevailing party. [This] contention is

inconsistent with the well settled rule excluding attorney fees

from the costs a party winning an appeal may recover under

section 1034 [Citations].’ (Presley of Southern California v.

17

Whelan (1983) 146 Cal.App.3d 959, 961-962, 196 Cal.Rptr. 1; see

also de la Cuesta v. Superior Court (1984) 152 Cal.App.3d 945,

950, 200 Cal.Rptr. 1.)” (Mustachio, supra, 48 Cal.App.4th at pp.

1149-1150.)

Beck argues that Mustachio is distinguishable for several

reasons, including its reliance on Civil Code section 1717, nowrewritten

and renumbered rules of court, and a version of section

1033.5 predating its amendment in 1990 “at which time

attorneys fees by contract were expressly made allowable as costs

rather than as damages to be proven.” The last contention is

puzzling, as Mustachio was decided in 1996, long after any

amendment to section 1033.5 made in 1990 would have taken

effect. The others are not persuasive. As explained above, the

applicable appellate rule was not substantively different, and

section 1033.5 defines attorney fees incurred in the trial court as

“costs” regardless of the statute authorizing them. (§ 1033.5,

subd. (a)(10).)

Beck’s final argument regarding the trial court’s authority

to award appellate fees appears to rest on its alleged

disagreement with an earlier trial court ruling that the fees were

costs. According to Beck, the trial court ruled prior to Stratton I

that the trial court fees at issue there were costs such that Beck

did not have to post an undertaking prior to the appeal. He

contends, “a new judge could not contradict the trial court’s

earlier determination unless the Court of Appeals said otherwise.

The second superior court judge [to whom the case was

reassigned on remand] could not overrule the first superior court

judge’s fees as cost classification determination by characterizing

§98.2(c) fees as being something other than the costs upheld in

Stratton I.” Beck further asserts that Stratton “did not challenge

18

this fees-as-costs determination in the Superior Court nor at the

Court of Appeal in the course of Stratton I. Therefore the trial

court’s judicial determination equating LC §98.2(c) fees as costs

remains and could not be disturbed in the absence of direction

from the Court of Appeals.”

It is unclear what judicial determination Beck is referring

to. The portion of his opening brief outlining this argument

contains no citations to the record, and we did not find any such

ruling in the record during our review. The closest we can find is

an assertion in Beck’s motion for reconsideration/clarification

that “The court (Judge Mark A. Borenstein) ruled that no

undertaking was required because the attorney fee award under

this Labor Code section was a ‘cost’ as defined by CCP

§ 1033.5(a)(10)(C).”

To the extent Beck appears to refer to a determination that

the trial court fees awarded in connection with his initial appeal

of the Labor Commissioner’s decision were costs, such

determination has no relevance to the classification of fees on

appeal. As we explained above, items recoverable as “costs” in

trial court are distinct from those recoverable as “costs” in

appellate court. To the extent Beck may be referring to some

other ruling, he has failed to include that ruling in the record or

otherwise demonstrate error. Marshaling the record and

affirmatively demonstrating error are the appellant’s burdens,

and Beck failed to carry those burdens here. (See Denham v.

Superior Court (1970) 2 Cal.3d 557, 564.)

II. The Trial Court’s Order was Adequate

Beck also challenges the adequacy of the court’s order

granting Balter’s motion for attorney fees. He contends the trial

court “erred by refusing to shed light on its decision making.” He

19

argues that the order, which tracked Balter’s proposed order in

all respects except the amount of fees awarded, “say[s] nothing

about and gives no insight into the judge’s reasoning relative to

any of the issues presented in opposition to Mr. Balter’s fee

motion. It also does not reflect the trial court independently

assessed the fee claim as it must.” He also contends the court

abused its discretion by failing to exercise its discretion under

section 1033. Beck blames the “shortcomings” of the court’s order

for this appeal, asserting that it “would more than likely have

been avoided” if the trial court had heeded his request for

clarification and “issued a reasoned, detailed order explaining

why it believed it had jurisdiction to award fees in light of the

express costs denial in the interests of justice and had

communicated a single thought relating to the authorities Beck

relied upon to establish LC §98.3 [sic] fees are to be treated as

costs.”

We review the fee award under the abuse of discretion

standard. Under this standard, we do not disturb the award

unless the trial court exercised its discretion in an arbitrary,

capricious, or patently absurd manner. (Center for Biological

Diversity v. County of San Bernardino (2010) 188 Cal.App.4th

603, 615-616.) However, “[w]hen we are reviewing an award of

attorney fees for appellate work, we need not accord the same

degree of deference we would give to rulings that involve the trial

court’s first-hand knowledge.” (Id. at p. 616.)

We see no abuse of discretion here. The trial court is not

required to issue a statement of decision regarding a fee award.

(Ketchum v. Moses (2001) 24 Cal.4th 1122, 1140.) During the

hearing, the trial court told Beck and his co-counsel that it was

“not at all persuaded” by their argument that appellate fees were

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a component of appellate costs and expressed its belief that there

was “clear law that costs—in the way they [the court of appeal]

referred to it—does not include attorney’s fees.” The court also

pointed to rule 8.278(d)(2) in support of its ruling. It also

entertained “extensive oral argument with regard to the fee

award. We have no reason to doubt that the superior court

conducted an independent assessment of the evidence presented.”

(Ketchum v. Moses, supra, 24 Cal.4th at p. 1140.) The trial court

did not abuse its discretion by declining to reduce the comments

it made at the hearing to writing or further explain its reasoning

for awarding Balter the lodestar he requested and supported with

documentation.

Beck points to Kerkeles v. City of San Jose (2015) 243

Cal.App.4th 88, 102 (Kerkeles) for the proposition that the trial

court is required to “provide a reasonably specific explanation of

all aspects of a fee determination.” This case, which addresses

fees awarded under 42 U.S.C. § 1988, is not on point. The court

in Kerkeles calculated the lodestar and then made an “across the

board 50% reduction in the claimed hours billed” without further

explanation. (Kerkeles, supra, 243 Cal.App.4th at p. 101.) The

appellate court rejected this sweeping cut as inadequately

supported. It reasoned that federal courts reviewing fees

awarded under 42 U.S.C. § 1988 apply “‘heightened scrutiny’” to

“percentage cuts to large fee requests. (Id. at p. 102.) Examining

several cases, it concluded that “when imposing a reduction

greater than 10 percent, the court ‘must explain why it chose to

cut the number of hours or the lodestar by the specific percentage

it did.’” (Id. at p. 103.) Here, the court did not cut the lodestar or

make other factual rulings; it made a legal determination that it

had the authority to award fees. Further explanation was not

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required.

Beck also argues that the trial court failed to exercise its

discretion under section 1033, subdivision (a), which states,

“Costs or any portion of claimed costs shall be determined by the

court in its discretion in a case other than a limited civil case in

accordance with Section 1034 where the prevailing party recovers

a judgment that could have been rendered in a limited civil case.”

He did not bring that statute to the court’s attention, however,

until he filed his motion for reconsideration. He argues in his

reply brief that section 1033 does not “on its face . . . require the

parties to move for its invocation but exists for trial courts to

consider when calculating reasonable fees in cases where the

prevailing party failed to attain a judgment meeting the $25,000

limited jurisdiction level.” He relies only on a depublished case to

support this assertion; such cases are not proper authority and

may not be cited. (See Cal. Rules of Court, rule 8.1115(a).)

Moreover, nothing in the record indicates that the court failed to

recognize its discretion under section 1033, subdivision (a) when

it concluded that the full amount of fees requested was proper.

Beck further contends that the trial court improperly

refused his motion for reconsideration or clarification. An order

denying a motion for reconsideration is not separately

appealable, but may be reviewed as part of an appeal of the order

subject to the motion. (§ 1008, subd. (g).) Our review reveals no

abuse of discretion. (See California Correctional Peace Officers

Association v. Virga (2010) 181 Cal.App.4th 30, 42.) The trial

court’s original order and oral remarks adequately informed Beck

of the basis for its ruling, and Beck did not offer any new facts or

law in support of the motion for reconsideration. Though it

denied the motion, the trial court explained in its order that it

22

“accepted the rate, and rationale proposed by plaintiff” when it

made the fee award. This explanation should have clarified the

matter for Beck, who was well aware of Balter’s legal arguments

in support of the award and failed to object to the additional 14

estimated hours at the hearing. His assertion that the trial court

is to blame for the continuation of this case is not well taken.

The order of the trial court is affirmed. Respondent is

awarded his costs of appeal.