[co-author: Victoria Boyko]

In Faton v. Ahmedo, 2015 DJDAR 5256, the California Court of Appeal for the Fourth Appellate District held that where an attorney fee request is a mere “incident to a cause of action,” they need not be pleaded and proven, as a prerequisite for a fee award.

The Plaintiff sought a restraining order. On the restraining order request form, she left “blank” the section providing for a request of attorney fees. The trial court subsequently granted the TRO and left open the potential for a future attorney fee award. The Defendant filed a motion for reconsideration. The trial court granted that motion.  An evidentiary hearing took place thereafter. After reconsideration, the trial court reissued the restraining order and the Plaintiff then successfully moved for attorney fees under California Family Code Section 6344. The Defendant contended that the Plaintiff forfeited her right to request attorney fees because she failed to request them on the original restraining order request form.

The Court of Appeal affirmed, noting that statutory attorney fees under these circumstances need not be pleaded and proved at trial. The court cited Mabee v. Nurseryland Garden Centers, Inc. (1979) 88 Cal. App. 3d 422, 425. The court of appeal noted that where a claim for attorney fees is part of the “cause of action” rather than being authorized by statute, a fee claim must be pleaded and proven. However, where attorney fees are authorized by statute, no similar procedural or evidentiary base is required. Based on this reasoning, the Court of Appeal affirmed the ruling of the trial court.