Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. Los Angeles County Super. Ct. No. BC378393 Malcolm H. Mackey, Judge.
Wayne Yee for Plaintiff and Appellant.
Kaiser, Swindells & Eiler and Eric C. Demler for Defendant and Respondent.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
This appeal asks whether a trial court has jurisdiction to hear a motion for attorney fees that is filed one day late. We hold that it may and remand the case for the court to determine whether good cause under rule 3.1702 of the California Rules of Court exists to extend the time to file the motion or whether Code of Civil Procedure section 473, subdivision (b) (section 473(b)) otherwise grants relief.
FACTS
In the underlying action, appellant New Star Realty sued respondent Eun Y. Park to collect unpaid advertising fees incurred by Park pursuant to a written contract. Park cross-complained for breach of contract and fraud, among other things. After a bench trial, the court entered a judgment in favor of Park and against New Star on June 1, 2009, awarding Park “$29,836, plus prejudgment interest of $10,146. Costs shall be claimed and determined in the manner provided by law.” A notice of entry of judgment was served by mail on June 12, 2009 and filed on June 18, 2009. Park filed a memorandum of costs on June 19, 2009, but did not claim attorney fees at that time.
On August 13, 2009, Park’s attorneys filed a motion to determine the prevailing party and for attorney fees pursuant to Civil Code sections 1717 and 1717.5. The fee motion was served on August 12, 2009. New Star opposed the fee motion on the sole ground that it was untimely, calculating that the motion should have been served and filed by August 11, 2009. Park acknowledged the fee motion was filed and served late, but in her reply sought relief under Code of Civil Procedure section 473(b). Her attorney submitted a declaration which stated that he confused Park’s case with another case in which he had to file a motion for attorney fees by August 18, 2009. When he began to prepare the attorney fees in this matter on August 12, 2009, he “realized that the last day to file the motion for attorney’s fees was the day before.”
The trial court rejected New Star’s argument, reasoning that Code of Civil Procedure section 1005 extended the time to file the motion by five days because the notice of entry of judgment was served by mail, thus making the fee motion timely. On October 2, 2009, the court entered an order awarding Park attorney fees in the amount of $25,410. The June 1, 2009 judgment was subsequently interlineated and initialed by the trial judge with the notation that: “Costs shall be in the sum of $1,812.00 [initials] claimed and determined in the manner provided by law. [¶]... The Court grants attorney’s fees in the amount of $25,410.00 [initials].” This appeal timely followed on November 20, 2009.
DISCUSSION
New Star contends that the trial court’s award of attorney fees should be reversed because Park filed her motion one day late. As a result, New Star contends that the court lacked jurisdiction to enter the fee award. We disagree. Rule 3.1702 of the California Rules of Court governs the timing of a motion for attorney fees, requiring it to be filed within the time for filing a notice of appeal under rules 8.104 and 8.108, unless the parties stipulate otherwise or “[f]or good cause, the trial judge may extend the time for filing a motion for attorney’s fees in the absence of a stipulation or for a longer period than allowed by stipulation.” Rule 8.104, in turn, provides that a notice of appeal must be filed within 60 days from service of a notice of entry of judgment. Accordingly, Park’s fee motion was due on August 11, 2009, one day before she served it on New Star and two days before she filed it.
All subsequent rule references shall be to the California Rules of Court, unless otherwise specified.
Rule 8.108 extends the time to file an appeal if a party makes various postjudgment motions, not applicable here.
On its face, Code of Civil Procedure section 1005, relied upon by the trial court, does not apply to this matter. In addition, section 1013 does not apply to this matter. Both parties agree that the statutes do not apply. Nor does New Star dispute that Park is entitled to attorney fees under the contract or the proper amount of attorney fees to be awarded.
All subsequent section references shall be to the Code of Civil Procedure, unless otherwise specified.
Section 1005, subdivision (b) provides in relevant part: “Unless otherwise ordered or specifically provided by law, all moving and supporting papers shall be served and filed at least 16 court days before the hearing. The moving and supporting papers served shall be a copy of the papers filed or to be filed with the court. However, if the notice is served by mail, the required 16-day period of notice before the hearing shall be increased by five calendar days if the place of mailing and the place of address are within the State of California.... Section 1013, which extends the time within which a right may be exercised or an act may be done, does not apply to a notice of motion, papers opposing a motion, or reply papers governed by this section.”
Section 1013 expressly provides that “any period of notice and any right or duty to do any act or make any response within any period or on a date certain after the service of the document, which time period or date is prescribed by statute or rule of court, shall be extended five calendar days, upon service by mail, if the place of address and the place of mailing is within the State of California... but the extension shall not apply to extend the time for filing... [a] notice of appeal.”
Instead, New Star grounds its appeal on three arguments: (1) the judgment became “final” on August 11, 2009, when the time to appeal had expired, and thus, the trial court was without jurisdiction to extend the time to file a fee motion or modify the original judgment, which contained no provision for attorney fees; (2) the trial court abused its discretion when it rejected New Star’s effort to demonstrate the error of the court’s reliance on section 1005 in holding the fee motion to be timely; and, (3) section 473 cannot excuse an untimely postjudgment fee motion based on an attorney mistake, inadvertence, surprise or excusable neglect.
As to New Star’s first argument, it relies on the well-established rule that the time for taking an appeal is jurisdictional and a reviewing court must dismiss an untimely notice of appeal. (Hollister Convalescent Hosp., Inc. v. Rico (1975) 15 Cal.3d 660, 667.) This well-established rule does not apply to attorney fees motions. While rule 3.1702 adopts the same time limits for filing a fee motion as for filing a notice of appeal, the rule does not similarly deprive a trial court of jurisdiction once that time period has expired. By its express terms, a trial court is empowered to extend the time by which the fee motion may be filed. In contrast, the court lacks such power in an appeal. (Rule 3.1702(d).) On the same basis, the trial court also does not lose jurisdiction to amend a judgment or extend the time to file a fee motion because the rule specifically begins to run only after a judgment has been entered. Certainly, the case upon which New Star relies supports the proposition that the court does not lose jurisdiction. (Gill v. Epstein (1965) 62 Cal.2d 611, 614-616 [trial court has no power to correct a judicial error in judgment which has become final, except in certain statutory proceedings]; see also APRI Ins. Co. v. Superior Court (1999) 76 Cal.App.4th 176, 182.) Further, New Star’s argument that the court may not amend the judgment to include attorney fees is not supported by statutory authority. Attorney fees to which a party is entitled under contract are treated as an item of costs. (§ 1033.5, subds. (a)(10) & (c)(5).) Accordingly, the June 1, 2009 judgment implicitly provided for attorney fees when it included an award of costs “in the manner provided by law.”
We also summarily dispense with New Star’s second argument. New Star argued at the hearing that section 1005 did not apply. The court found the argument without merit. There was no abuse of discretion in refusing to consider supplemental briefing on the same argument.
We now consider New Star’s third argument – whether section 473 permits the court to excuse an untimely filing. Section 473(b) affords the trial court the ability to, “upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” Although the time limits for an attorney fees motion are mandatory, that “does not mean that the trial court is deprived of jurisdiction to grant relief under section 473....” (Russell v. Trans Pacific Group (1993) 19 Cal.App.4th 1717, 1728 (Russell); see also Ron Burns Construction Co., Inc. v. Moore (2010) 184 Cal.App.4th 637, 643-646 (Ron Burns Construction); Lee v. Wells Fargo Bank (2001) 88 Cal.App.4th 1187, 1193; Wegner et al., Cal. Practice Guide: Civil Trials and Evidence (The Rutter Group 2010) ¶ 17:168, p. 17-137.)
We decline to apply the line of cases cited by New Star which hold that section 473 cannot excuse the untimely filing of a notice of appeal. (Maynard v. Brandon (2005) 36 Cal.4th 364, 372; Estate of Hanley (1943) 23 Cal.2d 120, 123.) As discussed above, both the trial and appellate courts lack jurisdiction to extend the time to file an appeal. That is not the case with a motion for attorney fees. This distinction renders the cases cited by New Star inapplicable.
We reject New Star’s attempts to distinguish Russell and Ron Burns Construction. These casesstand for the proposition that section 473 relief is available to relieve a party from an untimely motion for attorney fees. None of the distinguishing facts highlighted by New Star changes that holding.
Here, Park’s attorney submitted a declaration showing that he mistakenly confused the deadline for a fee motion in this case with another case. The trial court, however, believed that section 1005 applied thereby making the motion timely. As a result, it did not consider relief under section 473(b) or rule 3.1702. Thus, because we find sections 1005 and 1013 inapplicable, we remand to the trial court for the limited purpose of determining whether good cause existed to extend the filing deadline under rule 3.1702 or whether Park’s attorney’s section 473(b) declaration otherwise provided relief from the filing deadline.
DISPOSITION
The matter is remanded for the limited purpose of determining whether the attorney’s declaration provided good cause under section 473(b) to excuse the late-filed motion or under rule 3.1702 to extend the filing deadline for the motion for attorney fees. If the court so finds, the judgment is then reinstated. Otherwise, the judgment is reversed in part to strike the award of attorney fees. In all other respects, the judgment is affirmed. Each party to bear their own costs on appeal.
We concur: RUBIN, Acting P. J., GRIMES, J.