Gallop v. Duval CA2/2 ( 2021 )

Filed 9/2/21 Gallop v. Duval CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
MARILYN GALLOP, B308531
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No.
v. SS027452)
VICTOR DUVAL et al.,
Defendants and Respondents.
APPEAL from an order of the Superior Court of
Los Angeles County. Henry Jay Ford III, Judge. Reversed and
remanded with directions.
Law Offices of Bennett Kerns and Bennett Kerns for
Plaintiff and Appellant.
Law Offices of Joseph F. Hart and Joseph F. Hart for
Defendants and Respondents.
_________________________
Marilyn Gallop (appellant) contends that the trial court
erred when it denied her motion for attorney fees as untimely
when it was filed on February 5, 2020. We agree. Contrary to
what the trial court concluded, appellant’s notice of ruling on
posttrial matters did not constitute notice of entry of that order.
Thus, California Rules of Court, rules 3.1702(b)(1), 8.104(a)(1)(A),
8.108(b)(1)(A) and 8.108(c)(1) did not require appellant to serve
her motion in January 2020.1 Rather, because there was no
notice of entry of the posttrial order, rules 1.10(b), 3.1702(b)(1),
8.108(b)(1)(C) and 8.108(c)(3) gave appellant to Wednesday,
May 13, 2020, to file her motion by extending the time to 180
days after entry of judgment on November 15, 2019. Thus, we
1 All further references to rules are to the California Rules of
Court.
Rule 3.1702(b)(1) ties the time to file a motion for attorney
fees to the time to notice an appeal under rules 8.104 and 8.108.
The trial court determined that rule 8.104(a)(1)(A) applied and
required the motion to be filed 60 days after notice of entry of
judgment was mailed on Monday, November 18, 2019. The trial
court stated that the final day for appellant to file her motion was
Monday, January 20, 2020. “The time in which any act provided
by law is to be done is computed by excluding the first day, and
including the last, unless the last day is a holiday, and then it is
also excluded.” (Code Civ. Proc., § 12.) “[I]f the last day for the
performance of any act that is required by these rules to be
performed within a specific period . . . falls on a Saturday,
Sunday, or other legal holiday, the period is extended to and
includes the next day that is not a holiday.” (Rule 1.10(b).) The
60th day, not including November 18, 2019, was January 17,
2020. We note that January 20, 2020, was observed as a holiday
by the Los Angeles Superior Court to celebrate the birthday of
Martin Luther King, Jr.
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reverse the denial of appellant’s motion. On remand, the trial
court shall consider the motion on the merits.
FACTS
Appellant sued Canon Opticians, Inc., Victor Duval, and
Claudia Lewis (collectively respondents) for Elder Financial
Abuse after they sold her over 100 pairs of luxury eyeglasses for
which she paid $79,530 and still owed $173,000. On October 4,
2019, the trial court filed its Statement of Decision and Order for
Judgment awarding appellant $25,000. The trial court filed its
judgment on November 15, 2019, and its clerk mailed notice of
entry of judgment on November 18, 2019.2 At some point,
appellant and respondents filed motions to vacate the judgment
and for a new trial. The trial court denied those motions on
December 9, 2019. That same day, appellant served a notice of
ruling.
Three weeks later, appellant filed an ex parte application to
shorten time to hear her motion for attorney fees. She noted that
her “motion for attorney’s fees initially needed to have been filed
by January 15, 2020, sixty (60) days after notice of judgment. . . .
Such sixty (60) days marks the time by which a Notice of Appeal
must be filed. [¶] However, such deadline has been extended to
2 The only notice attached to the judgment is an October 21,
2019, notice of the proposed judgment. However, appellant does
not dispute that the superior court clerk served notice of entry of
judgment. We observe that the register of actions states that the
notice was filed November 15, 2019. While appellant states that
the notice was sent on November 15, 2019, and a minute order
states that notice was sent on November 18, 2019, the
discrepancy is immaterial. For purposes of this opinion, we
accept November 18, 2019, as the date the superior court clerk
mailed notice of entry of judgment.
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thirty (30) days after ‘the superior court clerk or a party serves
an order denying’, a motion for new trial or a notice thereof. But
for this ex parte request, [appellant’s] motion would be set
beyond the latest anticipated date a notice of appeal . . . need [to]
be filed.”3 She also stated that “sixty (60) days from
November 15, 2019 (undetermined as now extended) to file a
notice of appeal.” The trial court denied the ex parte application.
On February 5, 2020, appellant served a motion for
attorney fees.4 The trial court denied the motion as untimely. By
rule, the motion had to be filed within the time for appellant to
notice an appeal. It noted that the 60-day deadline for appellant
to file a notice of appeal under rule 8.104(a) was triggered when
notice of entry of judgment was mailed on November 18, 2019, by
the superior court clerk, and the time to appeal under that rule
expired on January 20, 2020. Per the trial court, service of
appellant’s notice of ruling started a 30-day clock that expired on
January 9, 2020, and therefore rule 8.108 did not provide
appellant more time to file an appeal than did rule 8.104. As a
consequence, appellant was required to file her motion for
attorney fees on or before January 20, 2020.
This timely appeal followed.
3 Appellant believed the notice of entry of judgment was sent
on November 15, 2019. If that was true, and if the 60-day rule
set forth in rule 8.104(a)(1)(A) had been applicable, then the
motion for attorney fees would have needed to be filed by
Tuesday, January 14, 2020.
4 Appellant also requested costs. The request for costs is not
at issue in this appeal.
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DISCUSSION
We are called upon to apply the law to undisputed facts.
Our review is de novo. (Tsasu LLC v. U.S. Bank Trust, N.A.
(2021) 62 Cal.App.5th 704, 715.)
A motion for attorney fees must be filed and served “within
the time for filing a notice of appeal under rules 8.104 and 8.108
in an unlimited civil case[.]” (Rule 3.1702(b)(1).) Under
rule 8.104(a), an appeal must be filed at the earliest of 60 days
after the superior court clerk serves on the party filing the appeal
a document entitled “Notice of Entry” of judgment, 60 days after
the party filing the notice of appeal serves or is served by a party
with a document entitled “Notice of Entry” of judgment or a file-
endorsed copy of the judgment, or 180 days after entry of
judgment.
Rule 8.108 extends the “time to appeal otherwise
prescribed in rule 8.104(a); it does not shorten the time to appeal.
If the normal time to appeal stated in rule 8.104(a) is longer than
the time provided in this rule, the time to appeal stated in
rule 8.104(a) governs.” (Rule 8.108(a).)
If a properly noticed motion for new trial is denied, the time
to appeal the judgment is extended to the earliest of “30 days
after the superior court clerk, or a party[,] serves an order
denying the motion or a notice of entry of that order[,]” “30 days
after denial of the motion by operation of law[,]” or “180 days
after entry of judgment.” (Rule 8.108(b)(1)(A)-(C).) If a properly
noticed motion to vacate is denied, the time to appeal is extended
to the earliest of “30 days after the superior court clerk, or a
party[,] serves an order denying the motion or a notice of entry of
that order[,]” “90 days after the first notice of intention to move—
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or motion—is filed[,]” or “180 days after entry of judgment.”
(Rule 8.108(c)(1)-(3).)
Under rule 8.104, appellant’s motion for attorney fees had
to be filed 60 days from notice of entry of judgment mailed by the
superior court clerk on November 18, 2019. That 60-day time
frame expired on January 17, 2020. Thus, appellant’s motion for
attorney fees was untimely unless the time to file was extended
by rule 8.108. On December 9, 2019, appellant served notice of
the trial court’s ruling on the posttrial motions. If it operated as
notice of entry of the order, then the 30-day time frame provided
for in rule 8.108(b)-(c) expired on January 7, 2020, and therefore
did not extend the time to file the motion past January 17, 2020.
But if the notice of the trial court’s ruling did not operate as
notice of entry of the order, the time for appellant to file her
motion for attorney fees was extended to 180 days after entry of
judgment pursuant to rule 8.108(b)(1)(C).5 Under this latter
scenario, appellant had until Wednesday, May 13, 2020 (180 days
after notice of entry of judgment) to file her motion for attorney
fees. Accordingly, her motion was timely filed on February 5,
2020.
Case law establishes that “serving a notice of ruling is not
the same as serving a copy of [an] order or a notice of entry of
[that] order, as contemplated by the rules governing the
timeliness of appeals. [Citation.]” (Carmel, Ltd. v. Tavoussi
(2009) 175 Cal.App.4th 393, 399 [concluding that a notice of
5 Respondents do not suggest that the 90-day rule in
rule 8.108(c)(2) applies. They contend that the time frame is
either 30 days or 180 days. We express no opinion on the
applicability of rule 8.108(c)(2).
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ruling of a denial of a motion to vacate the judgment did not
trigger the 30-day time period under rule 8.108(c)]; Gassner v.
Stasa (2018) 30 Cal.App.5th 346, 356 [because a notice of ruling
“was not entitled ‘Notice of Entry’ and did not attach a file-
stamped copy of the trial court’s minute order, it did not trigger
the 60-day deadline to appeal under rule 8.104(a)(1)(B)”];
Anderson v. Chikovani (2010) 181 Cal.App.4th 1397, 1398–1399
[“[W]here a party files a valid motion for new trial, and the trial
court issues a timely order denying that motion, but no one
serves the order or notice of entry of that order, then the
applicable deadline for filing the notice of appeal from the
judgment is 180 days”].)
Despite these cases, respondents contend that the notice of
ruling was sufficient to trigger the 30-day time limit in
rule 8.108(b)-(c). As a backstop, respondents suggest that
appellant’s motion for attorney fees was properly denied because
she made binding admissions in her ex parte application that the
deadline to file her motion was January 15, 2020. (Fassberg
Construction Co. v. Housing Authority of the City of Los Angeles
(2007) 152 Cal.App.4th 720, 752 [“[A]n oral statement by counsel
in the same action is a binding judicial admission if the
statement was an unambiguous concession of a matter then at
issue and was not made improvidently or unguardedly”].)
Case law is settled. The notice of ruling was not the same
as notice of entry of the order. Respondents have not cited any
precedent establishing otherwise. Consequently, appellant’s
motion was timely filed. In addition, we conclude that appellant
did not make a binding judicial admission that the time to appeal
and file her motion for attorney fees expired on January 15, 2020.
Notably, her ex parte papers indicated her belief that the time
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had been extended. Moreover, the timeliness of a future motion
for attorney fees was not at issue in the ex parte application.
(Timeliness was not an issue until the trial court ruled on that
future motion.) Finally, any statement regarding the final date a
motion for attorney fees had to be filed per the California Rules of
Court was a legal conclusion and cannot be counted as a judicial
admission. (Stroud v. Tunzi (2008) 160 Cal.App.4th 377, 384
[“judicial admissions involve facts, not legal theories or
conclusions”].) Thus, denial of the attorney fees motion was not
supported by a judicial admission.
DISPOSITION
The order is reversed. On remand, the trial court shall
consider appellant’s motion for attorney fees. Appellant is
entitled to her costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
__________________________, J.
ASHMANN-GERST
We concur:
_______________________, P. J.
LUI
_______________________, J.
HOFFSTADT
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