Gunlock Corp. v. Walk on Water, Inc.

Defendant, Walk on Water, Inc., appeals from postjudgment orders taxing costs, denying relief under Code of Civil Procedure section 473, and denying reconsideration. The combined effect of these orders was to preclude appellant from recovering contractual attorney fees, in a case in which it had prevailed, because of failure to file a motion together with the cost bill claiming them. We reverse and remand for determination of the fees to which appellant is entitled.

Facts

In the underlying action, appellant was sued by respondent, Gunlock Corporation, for amounts allegedly due under a commercial lease that contained an attorney fees clause. After a court trial, appellant prevailed, and the trial court declared it the prevailing party. Judgment for appellant was entered on August 5, 1991.

Eight days later, appellant served and filed its memorandum of costs in the amount of $21,409.82, including $20,652.50 attorney fees. Respondent responded with a motion to tax costs, which challenged the attorney fees on two grounds: they were unreasonable, and appellant had not filed a motion claiming them, under California Rules of Court, rule 870.2. In its opposition to the motion,…