Steele v. Gold

Opinion

ROTH, P. J.

Respondents Clifton and Marie Steele brought a motion to sever their complaint from the cross-complaint filed by appellant Irving Hershey Gold. In addition to granting the motion, the trial court by minute order dated March 8, 1983, awarded respondents $500 in attorney’s fees, not, as they had requested, under Code of Civil Procedure section 128.5,

1

but as costs pursuant to Code of Civil Procedure section 1032.

2

Appellant moved for reconsideration of the order insofar as it involved the fee award but the motion was denied by minute order dated April 7,

[930]

1983, with a further award of attorney’s fees to respondents of $350, again pursuant to Code of Civil Procedure section 1032.

In explaining the reasoning behind its actions the trial court remarked:

“The Court: Well, referring to section 1032 of the C.C.P., this section very simply provides—This is in (c) (reading): ‘In other actions than those mentioned in this section, costs may be allowed or not, and, if allowed, may be apportioned between the parties, on the same side or adverse sides, at the discretion of the court.’

“My practice, as I think it is the predominant practice of this court, is to award fees as costs, and the reason is very simple:

“Somebody comes into court either you on your motion or them. The court has to have authority—

“And I think this section provides it.

“—to award fees so that counsel do not have to pay out of their pockets for having to make court appearances.

“Without this authority, the attorneys—including you, counsel—will have to come into these cases and would have to sort of eat those fees yourselves.

“I think that this section permits me to do it.