Filed 12/7/18; Certified for Publication 1/2/19 (order attached)




IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                    SECOND APPELLATE DISTRICT

                                DIVISION FOUR


ANTHONY STRATTON,                                    B287001

        Plaintiff and Respondent,                    (Los Angeles County
                                                     Super. Ct. No. BS152046)
        v.

THOMAS E. BECK,

        Defendant and Appellant.



     APPEAL from an order of the Superior Court of
Los Angeles County, Edward J. Moreton Jr., Judge. Affirmed.
     The Beck Law Firm, Thomas E. Beck for Defendant and
Appellant.
     David M. Balter for Plaintiff and Respondent.
       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.




                                 2
           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.)




                                3
       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




                                 4
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.


                                 5
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




                                6
$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.


                                 7
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.




                                 8
       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.


                                 9
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




                                10
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




                                 11
of what is, and is not, allowable as a cost, similarly is trial-court-
oriented, 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




                                 12
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. (Butler-
Rupp, supra, 154 Cal.App.4th at p. 925.) Nevertheless, it




                                13
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




                                14
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




                                15
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.




                                 16
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, now-
rewritten 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




                                17
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




                                18
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




                                19
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




                                 20
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




                                 21
“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.
                           DISPOSITION
       The order of the trial court is affirmed. Respondent is
awarded his costs of appeal.




                          COLLINS, J.

We concur:




MANELLA, P. J.




WILLHITE, J.




                               22
Filed 1/2/19
                     CERTIFIED FOR PUBLICATION


        IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                      SECOND APPELLATE DISTRICT

                              DIVISION FOUR

ANTHONY STRATTON,                          B287001

       Plaintiff and Respondent,           (Los Angeles County
                                           Super. Ct. No. BS152046)
       v.

THOMAS E. BECK,
                                         ORDER CERTIFYING OPINION
       Defendant and Appellant.          FOR PUBLICATION



THE COURT:
       The opinion in the above-entitled matter filed on December 7, 2018 was
not certified for publication in the Official Reports. Upon application of
respondent and interested parties and for good cause appearing, it is ordered
that the opinion shall be published in the Official Reports.
       Pursuant to California Rules of Court, rule 8.1105(b), this opinion is
certified for publication.




_______________________________________________________________________
MANELLA, P.J.               WILLHITE, J.               COLLINS, J.
