Court Can't Refuse to Consider Docs Already in the Record

Roth v. Plikaytas, No. D070484 (D4d1 Sept. 13, 2017)

After a trial on liability, a prevailing Defendant in a contract case sought her attorneys’ fees under Civil Code § 1717. The trial court denied the motion as premature because certain equitable claims remained to be tried. So after Defendant won the equitable trial, she filed a second motion. For substantiation of her fees through the first trial, however, she sought to incorporate by reference a declaration filed with her first motion, a courtesy copy of which she gave to the court, but which she did not formally refile. The trial court refused to consider the prior-filed materials because it was unfamiliar with incorporating prior materials in a fee motion, because the prior motion had been denied, and because the the record was voluminous.

That was error. Rule of Court 3.1110(d)—which governs the form of motions—permits reference to other materials already in the trial record by date of execution and title. While Rule 3.1110(j) says that supporting materials should to the extent practicable be attached to the notice of motion, it does not set out a hard and fast requirement. So incorporating the material by reference was not improper. And if the courtesy copy Defendant gave to the court wasn’t good enough, it always had the option to order Defendant to re-file the docs. But it was an abuse of discretion to just ignore them.

Reversed.