Recovering Appellate Costs at the End of an Appeal

Generally, the party that prevails on appeal is entitled to recover the costs of appeal. (Calif. Rules of Court (CRC), Rule 8.278.) However, appellate courts have the discretion to deviate from the general rule of awarding costs to the prevailing party and may award costs or divide costs between the parties as the court deems appropriate.

Once the appellate court issues its remittitur (the document that notifies everyone that the appellate decision is final), the prevailing party has 40 days to file a list of costs in the trial court. (CRC, Rule 8.278(c).) If the matter is remanded to the trial court, the appellate court has the discretion to defer the issue of costs and send that issue back to the trial court as well. (Titmas v. Superior Court (2001) 87 Cal.App.4th 738, 746.)

Recoverable costs must be “reasonable” and usually include filing fees, the cost of preparing or obtaining the record, the cost of any appellate bond, and the cost of preparing briefs on appeal. (CRC, Rule 8.278(d)(1).) Unless the appellate court orders otherwise, the award of costs does not include attorney’s fees. However, if attorney’s fees are authorized by law or by contract, the prevailing party may request attorney’s fees in the trial court pursuant to CRC, Rule 3.1702. (CRC, Rule 8.278(d)(2).)

The trial court may interpret the appellate court’s remittitur, but it has no discretion to deny costs if they were awarded by the appellate court. (Musaelien v. Adams (2011) 197 Cal.App.4th 1251, 1259-1260.)