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Kaufman v. Diskeeper Corp.

California Court of Appeals, Second District, Fourth Division

August 21, 2014

BARRY B. KAUFMAN et al., Plaintiffs and Respondents,
v.
DISKEEPER CORPORATION, Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles No. BS137215, Kevin C. Brazile, Judge.

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COUNSEL

Law Offices of Barry B. Kaufman for Plaintiffs and Respondents.

Jeffer Mangels Butler & Mitchell, Louise Ann Fernandez, Dan P. Sedor, An Nguyen Ruda; Jones Day, Elwood Lui and Peter E. Davids for Defendant and Appellant.

Law Offices of Barry B. Kaufman and Barry B. Kaufman for Plaintiffs and Respondents.

OPINION

MANELLA, J.

Appellant Diskeeper Corporation (Diskeeper) challenges the trial court’s denial of a contract-based award of attorney fees following the confirmation of an arbitration award. Diskeeper contends the court improperly denied the award on the ground that Diskeeper filed no memorandum of costs in seeking the award. We conclude that Diskeeper’s contention is correct. Specifically, we hold that a party seeking attorney fees pursuant to Civil Code section 1717 need not, in addition to filing a noticed motion, file a memorandum of costs. We therefore reverse the court’s ruling and remand for further proceedings.

RELEVANT FACTUAL AND PROCEDURAL

BACKGROUND

This is the second time this case has come before us on appeal. Diskeeper is a software company located in Burbank. In 2006, Diskeeper hired respondent Alexander Godelman as its Chief Information Officer, and also hired Marc LeShay, who worked as Godelman’s subordinate. After LeShay resigned from his position, Diskeeper terminated Godelman.

In 2007, Godelman and LeShay initiated a lawsuit against Diskeeper in which Godelman asserted claims for wrongful termination. Respondent Barry B. Kaufman, an attorney, represented Godelman and LeShay in the action. Later, in 2009, Godelman and LeShay entered into a settlement of their action against Diskeeper. The settlement agreement required Godelman and LeShay to return Diskeeper’s property, including enumerated records, and imposed nondisclosure obligations on them and Kaufman. Other terms of the agreement obliged the parties to submit disputes to binding arbitration. The agreement also contained an attorney fee provision, which provided for ...


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