Javidian v. Subaru of America CA2/4 ( 2024 )

Filed 2/16/24 Javidian v. Subaru of America CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
BAHRAM JAVIDIAN, B322136
(Los Angeles County
Plaintiff and Appellant, Super. Ct. No. 20STCV24554)
v.
SUBARU OF AMERICA, INC.,
Defendant and
Respondent.
APPEAL from an order of the Superior Court of Los
Angeles County, Michael P. Linfield, Judge. Reversed and
remanded.
Strategic Legal Practices, Payam Shahian; Greines,
Martin, Stein & Richland, Cynthia E. Tobisman, Joseph V. Bui,
and Anne Guidroz, for Plaintiff and Appellant.
Lehrman, Villegas, Chinery & Douglas, Jacqueline Bruce
Chinery, and Robert A. Philipson, for Defendant and Respondent.
__________________________
At a status conference, appellant Bahram Javidian
(Javidian) and respondent Subaru of America, Inc. (Subaru)
informed the trial court they had reached a settlement in
principle but had not finalized it in writing. The court set a
hearing on an order to show cause (OSC) why the case should not
be dismissed in less than two months and ordered any motion for
attorney fees to be filed and heard by or before the OSC hearing.
Javidian filed his fee motion after the court-ordered deadline, and
the court denied it as untimely. Javidian contends California
Rules of Court, rule 3.1702,1 which governs claims for attorney
fees in civil cases, entitled him to at least 60 days to file the
motion. He argues it was improper to order him to file his motion
before the entry of dismissal. We agree and reverse. On remand,
the court shall consider the motion on the merits.
FACTUAL AND PROCEDURAL BACKGROUND
Javidian filed this action against Subaru for violations of
the Song-Beverly Consumer Warranty Act (Civ. Code, § 1793.2)
and negligent repair of his vehicle. In October 2021, the parties
attended a mediation where Subaru offered to settle the action
for $40,000, plus attorney fees, costs, and expenses. Javidian
accepted the offer, and the parties agreed he would serve a Code
of Civil Procedure section 9982 offer to memorialize the
settlement terms. The same day, Javidian’s counsel appeared at
a final status conference and informed the trial court the parties
were resolving the matter through settlement. The court vacated
1 Subsequent references to rules are to the California Rules of
Court.
2 All further statutory references are to the Code of Civil
Procedure unless otherwise indicated.
2
the trial date and set a status conference for November 10, 2021,
to allow the parties to finalize the settlement terms.
At the November 10 status conference, at which there was
no court reporter, the trial court set a hearing on an Order to
Show Cause why the case should not be dismissed for January 5,
2022. The court further ordered that a “Motion for Attorneys [sic]
Fees, if any, is to be filed and heard by the above-mentioned
hearing date.” This gave Javidian less than 40 days to finalize
and execute the settlement documents and prepare and file a
motion for fees.3 The court further instructed, “If the parties fail
to have a signed settlement agreement within a week of today’s
Order, Plaintiff may come in Ex Parte and seek relief from
today’s Court Order.”
The parties continued to negotiate the language of the
section 998 offer until December 7, 2021, when Subaru returned
the signed offer to Javidian. The offer included the following
attorney fee provision: “[Subaru] will . . . pay Plaintiff’s costs,
expenses, and attorneys’ fees, in accordance with Civil Code
section 1794, subdivision (d), in an amount to be agreed upon by
the parties, or if the parties cannot agree, to be determined by the
Court upon properly noticed Motion. For the limited purposes of
such Motion, defendant acknowledges and stipulates to the fact
that Plaintiff is the ‘prevailing party.’”
At the OSC on January 5, 2022, there was no court reporter
present, but Javidian’s counsel’s declaration and the court’s order
show Javidian informed the trial court Subaru accepted the
3 The time between the status conference and the OSC was
56 days. Section 1005, subdivision (b), requires all moving and
supporting papers to be filed at least 16 court days before a hearing
(assuming personal service).
3
section 998 offer. Javidian’s counsel requested the action not be
dismissed yet because Javidian had not yet been paid his
attorney fees and costs. The court dismissed Javidian’s operative
first amended complaint but retained jurisdiction pursuant to
section 664.6 “to make orders to enforce any and all terms of
settlement, including judgment.” The parties waived notice, and
neither they nor the court served a notice of entry of dismissal.
On April 29, 2022, Javidian filed a motion for attorney fees
requesting $119,470.98 in fees. Subaru opposed the motion
arguing it was untimely because it had not been filed by the
court-ordered deadline of January 5, 2022. In reply, Javidian
argued his motion was timely because when the court dismissed
the action it retained jurisdiction to enforce the settlement
agreement, which included a provision entitling Javidian to
attorney fees.
At the hearing on May 24, 2022, Javidian’s attorneys said
it was their understanding the trial court’s January 2022 order
retaining jurisdiction to enforce the terms of the settlement
superseded the court’s previous order setting the January 5,
2022, deadline. They believed the January 2022 order was
intended to address issues created by the length of time it took
for the parties to reach a final written settlement and the fact
that Javidian had not filed a motion for attorney fees by
January 5. The trial court stated Javidian’s counsel’s
understanding was mistaken. The court retained jurisdiction
“simply to make sure that the checks had been sent, that
Subaru’s check didn’t bounce . . . . [The] Court was quite clear
that any attorney’s fees were going to be heard before
January 5th.” Javidian’s counsel requested a continuance to file
a request for relief from the consequences of their mistaken
4
interpretation. The trial court stated it was not going to grant a
continuance, as no relief was warranted. Javidian’s counsel
pointed out that in November 2021, when the court-ordered
deadline was imposed, “there was no settlement agreement
document . . . signed in order to begin” preparing the fee motion.
Counsel argued that the document signed thereafter in December
2022 provided that Javidian would be paid attorney fees as
decided by noticed motion. Counsel asserted they were trying to
enforce that provision, as they believed they could pursuant to
the January order. The court reiterated that it ordered on
November 10, 2021, that any motion for attorney fees needed to
be heard on or before January 5, 2022, and denied the motion as
untimely.
Javidian timely appealed the order.4
DISCUSSION
Javidian argues the trial court did not have authority to set
the January 5, 2022, deadline for him to file his motion for
attorney fees, as it fell before entry of dismissal and thus violated
rule 3.1702. Subaru contends the court was authorized to
shorten the deadline to file the fee motion under rule 1.10,
subdivision (c). It is undisputed that had the court not shortened
4 Weeks after filing his reply brief, Javidian requested we take
judicial notice of 15 documents he claims are relevant to rule 3.1702’s
enactment. As Subaru did not have an adequate opportunity to
respond, we deny the request. (Lent v. California Coastal Com. (2021)
62 Cal.App.5th 812, 855 [denial of request for judicial notice “is
particularly appropriate where judicial notice has been requested in
support of a reply brief to which the opposing party has no opportunity
to respond”].)
5
the deadline, the fee motion would have been timely.5 We agree
with Javidian the deadline set forth in rule 3.1702 applies in this
case, making his motion timely.
A. Forfeiture
At the outset, we acknowledge Javidian did not raise
rule 3.1702 below or argue the trial court did not have the
authority to set the deadline to file a fee motion. Javidian asserts
he believed the court’s order dismissing the action and retaining
jurisdiction to enforce the settlement agreement superseded the
court’s original order setting the deadline for filing the motion.
Thus, arguments about the original order would have been
superfluous. Subaru argues Javidian forfeited any argument
based on rule 3.1702 on appeal.6
A reviewing court will ordinarily not consider claims made
for the first time on appeal which could have been but were not
5 The trial court dismissed Javidian’s first amended complaint on
January 5, 2022, and neither the parties nor the court served a notice
of entry of dismissal. 180 days from January 5, 2022, was July 4, 2022,
a state holiday, with the next court day being July 5, 2022. (Rule 1.10,
subd. (b).) Therefore, the deadline to file a motion for attorney fees
would have been July 5, 2022. (Rules 3.1702, subd. (b)(1), 8.104,
subd. (a)(3).) Javidian’s fee motion, filed on April 29, 2022, would have
been timely.
6 Subaru also notes that Javidian failed to seek relief under
section 473, subdivision (b), for missing the court-ordered deadline.
Javidian requested a continuance at the hearing on his fee motion to
file a motion under section 473. The trial court would not grant the
continuance, as it believed a section 473 motion would lack merit.
Javidian contends he would have filed a motion for relief had the trial
court granted the continuance and refrained from indicating the
motion would be futile. (See Mundy v. Lenc (2012) 203 Cal.App.4th
1401, 1406 [“a party need not object if it would be futile”].) There is
6
presented to the trial court. (Truck Ins. Exchange v. AMCO Ins.
Co. (2020) 56 Cal.App.5th 619, 635.) However, application of the
forfeiture rule is not automatic, and we have discretion to
consider pure questions of law raised for the first time on appeal.
(Cox v. Griffin (2019) 34 Cal.App.5th 440, 450 [“[C]ourts have
discretion to consider a new theory on appeal if it involves a legal
question based on undisputed facts”].) Because Javidian’s appeal
raises a purely legal issue, to which Subaru has provided a
response, we exercise our discretion to consider his challenge to
the court’s order shortening the deadline for him to file his
motion for attorney fees.
B. The Order Requiring Javidian to File a Fee Motion
Before Entry of Dismissal Violated Rule 3.1702
1. Legal Principles and Standard of Review
“The Judicial Council . . . is the entity charged by the
California Constitution with adopting statewide rules for court
administration, practice, and procedure. (Cal. Const., art. VI, § 6;
see also Gov. Code, § 68070, subd. (b); Cal. Rules of Court,
rule 10.1.) The California Rules of Court ‘“have the force of
statute to the extent that they are not inconsistent with
legislative enactments and constitutional provisions.”’
[Citation.]” (Silverbrand v. County of Los Angeles (2009) 46
Cal.4th 106, 125.)
case law suggesting a party may seek relief under the discretionary
relief provision of section 473, subdivision (b), for an untimely fee
motion. (Russel v. Trans Pacific Group (1993) 19 Cal.App.4th 1717,
1729 [“trial court may not disregard noncompliance with the
procedural requirements for claiming contractual attorney fees but
may grant relief under [CCP §] 473”].)
7
“The ordinary principles of statutory construction govern
our interpretation of the California Rules of Court. [Citations.]
Our objective is to determine the drafter’s intent.” (Alan v.
American Honda Motor Co., Inc. (2007) 40 Cal.4th 894, 902.) We
begin with the statutory language as it is generally the most
reliable indicator of intent. (City of Alhambra v. County of Los
Angeles (2012) 55 Cal.4th 707, 718–719; DeNike v. Mathew
Enterprise, Inc. (2022) 76 Cal.App.5th 371, 378.) “‘[I]f the
statutory language may reasonably be given more than one
interpretation, “‘“courts may consider various extrinsic aids,
including the purpose of the statute, the evils to be remedied, the
legislative history, public policy, and the statutory scheme
encompassing the statute.”’”’” (Catlin v. Superior Court (2011) 51
Cal.4th 300, 304.) “We are obligated to give a rule of court ‘a
reasonable and commonsense interpretation consistent with its
apparent purpose, practical rather than technical in nature,
which upon application will result in wise policy rather than
mischief or absurdity.’” (Volkswagen of America, Inc. v. Superior
Court (2001) 94 Cal.App.4th 695, 706.)
“[T]he proper interpretation of a statute and the
application of the statute to undisputed facts are questions of
law, which we review de novo.” (In re R.C. (2011) 196
Cal.App.4th 741, 748; see also In re William M.W. (2019) 43
Cal.App.5th 573, 583 [“We independently review interpretations
of California Rules of Court”].)
8
2. Rule 3.1702 Expressly Authorizes a Trial Court to
Extend the Time for Filing a Fee Motion, but Not to
Shorten Time
Javidian points out rule 3.1702 provides a motion for
attorney fees is to be filed and served within the time for filing a
notice of appeal after entry of judgment or dismissal. He
contends that while the rule authorizes a trial court to extend the
deadline to file a fee motion, it does not permit a court to shorten
it. He argues the trial court therefore violated the rule by
ordering Javidian to file his motion on or before the hearing on
the OSC regarding dismissal, which was earlier than the
deadline rule 3.1702 sets.
Subaru, on the other hand, contends that rule 3.1702
imposes no limitation on a trial court’s authority to shorten the
time limit for filing a fee motion. Subaru asserts that as a result
rule 1.10, subdivision (c), authorizes the court to shorten the time
limits set forth in rule 3.1702. Rule 1.10, subdivision (c), states:
“Unless otherwise provided by law, the court may extend or
shorten the time within which a party must perform any act
under the rules.” Subaru relies exclusively on rule 1.10 as
authority for the court to shorten the time in which the motion
could be filed. Subaru cites no other rule or statute in support of
its argument.
Rule 3.1702 governs claims for attorney fees in civil cases.
It applies to claims for statutory attorney fees and for attorney
fees provided for in a contract.7 (Rule 3.1702, subd. (a).)
Subdivision (b)(1) of the rule, provides: “A notice of motion to
7 While the parties dispute the trial court’s authority under
rule 3.1702, they do not dispute the rule applies to Javidian’s fee
motion.
9
claim attorney’s fees for services up to and including the
rendition of judgment in the trial court—including attorney’s fees
on an appeal before the rendition of judgment in the trial court—
must be served and filed within the time for filing a notice of
appeal under rules 8.104 and 8.108 in an unlimited civil case.”
The parties may stipulate, before the expiration of the time
allowed under subdivision (b)(1), to extend the time for filing a
motion for attorney’s fees: “(A) Until 60 days after the expiration
of the time for filing a notice of appeal in an unlimited civil
case . . . ; or (B) If a notice of appeal is filed, until the time within
which a memorandum of costs must be served and filed under
rule 8.278(c) in an unlimited civil case.” (Id., subd. (b)(2).) “For
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.” (Id., subd. (d).)
Under rule 8.104, subdivision (a), an appeal must be filed
at the earliest of (1) 60 days after the superior court clerk serves
on the party filing the appeal a document entitled “Notice of
Entry” of judgment, (2) 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 (3) 180 days after entry of judgment. Rule 8.108
extends the time to appeal under exceptions not applicable here.
We begin with rule 3.1702’s plain language. The rule
provides that a party must file and serve a motion for attorney’s
fees “for services up to and including the rendition of judgment in
the trial court” “within the time for filing a notice of appeal.”
(Rule 3.1702, subd. (b)(1).) The language contemplates a motion
for the fees incurred to bring a case to its conclusion being filed
after the case has clearly concluded, as reflected by a judgment or
10
dismissal. (Ibid.; see also Sanabria v. Embrey (2001) 92
Cal.App.4th 422, 427 (Sanabria) [voluntary dismissal is
effectively a “judgment” within meaning of rule 8.104].)
Regarding a trial court’s authority to alter the rule’s deadlines,
the rule authorizes the court for good cause to extend the time for
filing a motion for attorney fees. (Id., subd. (d).) However, it does
not expressly authorize the court to shorten the filing periods set
forth in subdivision (b)(1).
Javidian primarily relies on Karamzai v. Digitcom (1996)
51 Cal.App.4th 547 (Karamzai) in arguing the lack of an express
provision means the rule does not allow a court to shorten the
deadlines for filing a fee motion. Karamzai involved
section 1141.20, subdivision (a), which provided at the time that
“[a]n arbitration award shall be final unless a request for a de
novo trial is filed within 30 days after the date the arbitrator files
the award with the court.” (Id. at p. 550.) In Karamzai, the trial
court ordered the parties to participate in judicial arbitration.
(Id. at p. 549.) The plaintiff later asked the court to continue the
arbitration date. (Ibid.) The court agreed but ordered that any
request for a trial de novo was to be filed within 10 days after the
award. (Ibid.) The arbitrator subsequently awarded judgment
for the plaintiff. (Ibid.) At a status conference 11 days later, one
of the defendants attempted to file a request for a trial de novo,
but the court refused to accept it pursuant to its earlier order
shortening time from 30 to 10 days. (Ibid.)
The appellate court held this was error and reversed. It
reasoned: “A trial court does not have inherent or unrestricted
power to extend or shorten the time specified by the Legislature
in which an act in a civil action must be done. Rather, the court
has such power only to the extent granted by the Legislature.
11
The Legislature has given trial courts broad authority to extend
the time in [ ] which an act must be done. . . . [¶] The Legislature
has not granted such sweeping authority to the courts to shorten
time. However, the Legislature has included specific
authorizations to shorten time, or to alter time limits, in a
number of individual sections which contain time limits.” (Id. at
p. 550.)
Analyzing the statute at issue, the appellate court observed
that under section 1141.20(a) an arbitration award “shall be
final” unless a timely request for a de novo trial was filed.
(Karamzai, supra, 51 Cal.App.4th at p. 550.) Further, former
rule 1616 (now rule 3.826) explicitly stated that the 30-day period
could not be extended. (Ibid.) There was no provision
authorizing the court to shorten the time within which a party
could request a de novo trial. (Ibid.) “From this specific
prohibition against extending time, and the lack of any
authorization to shorten time, we conclude that a trial court has
no authority to alter the time in which a party must file a request
for a de novo trial.” (Id. at p. 551.) Accordingly, the trial court’s
order shortening the time in which the defendant was required to
file a request for a trial de novo was void, and the court erred in
refusing to accept the timely request.
While its reasoning may sound applicable, Karamzai is
distinguishable from this matter because it involved a strict,
jurisdictional time limit on the right to request a trial de novo.
This right could be exercised solely within the period prescribed
by section 1141.20, and the trial court had no right to alter the
deadline, either by extending or shortening the deadline.
(Karamzai, supra, 51 Cal.App.4th at p. 550; see also rule 3.826,
subd. (a).) In contrast, rule 3.1702, authorizes a trial court to
12
alter the deadline to file a motion for attorney fees by extending
time.
Javidian also relies on the principle of expressio unius est
exclusio alterius (the expression of one thing is the exclusion of
another). He asserts the inclusion of a provision for extending
the deadline, and the absence of a provision for shortening the
deadline, reflects a conscious choice to deprive trial courts of the
authority to shorten the deadline for filing a fee motion. “Under
that canon of statutory construction, ‘where exceptions to a
general rule are specified by statute, other exceptions are not to
be implied or presumed,’ absent ‘a discernible and contrary
legislative intent.’ [Citations.]” (People v. Galambos (2002) 104
Cal.App.4th 1147, 1161.) This principle “‘expresses the learning
of common experience that when people say one thing they do not
mean something else.’” (Arden Carmichael, Inc. v. County of
Sacramento (2001) 93 Cal.App.4th 507, 515–516.)
However, “[t]he expressio unius inference arises only when
there is some reason to conclude an omission is the product of
intentional design.” (Howard Jarvis Taxpayers Assn. v. Padilla
(2016) 62 Cal.4th 486, 514; Singer, 2A Sutherland Statutes and
Statutory Construction (7th ed. 2022) § 47:25, fns. omitted
[“[C]ourts look for some evidence a legislature intended
application of expressio unius”].) Because rule 3.1702 does not
expressly address shortening the deadline to bring a motion for
attorney fees to a date preceding the conclusion of the case, we
turn to rule 3.1702’s history.
13
3. Rule 3.1702’s History Shows an Intent to Provide
Sufficient Time After Entry of Judgment or Dismissal
to Move for Fees
To determine what purpose the rule was intended to serve,
we consider its history. (Laurel Heights Improvement Assn. v.
Regents of University of California (1993) 6 Cal.4th 1112, 1127.)
Rule 3.1702’s history supports the conclusion that trial courts do
not have unlimited authority to shorten the specified time limits
for filing a motion for attorney fees.
The intent behind rule 3.1702 was examined in Sanabria,
supra, 92 Cal.App.4th at pp. 427–429. “In 1992, the Supreme
Court asked the Administrative Office of the Courts to review the
timing of claims for attorney fees under Code of Civil Procedure
section 1021.5 (private attorney general fees). The Supreme
Court was concerned that case law arguably permitted claims for
such fees to be pursued at any time. A time limit appeared
desirable. (Jud. Council of Cal., Admin. Off. of Cts., [Oct. 19,
1992] Rep. on Time to Claim Attorney Fees (rule 870.2), p. 1.)”
(Id. at p. 427.) “Rather than address only attorney fees under
Code of Civil Procedure section 1021.5, an amendment to
California Rules of Court, rule 870.2 [8] was proposed that would
address the procedure for claims for attorney fees under statute
or contract. (Jud. Council of Cal., Admin. Off. of Cts., [June 22,
1992] Request for Comment: Specifying Time to Claim Attorney
Fees by Rule.) The proposed rule provided that a ‘notice of
motion to claim prejudgment attorney fees shall be served and
filed before or at the same time the memorandum of costs is
served and filed.’ (Ibid.)” (Id. at pp. 427–428.) At that time, a
8 Rule 3.1702, formerly rule 870.2, was renumbered and amended
effective January 1, 2007.
14
prevailing party who claimed costs was required to serve and file
a memorandum of costs within 15 days after the date of mailing
the notice of entry of judgment or dismissal by the clerk or the
date of service of written notice of entry of judgment or dismissal,
or within 180 days after entry of judgment, whichever was
sooner. (Id. at p. 427, fn. 4.) The proposed rule was circulated for
comment. (Id. at p. 428.)
The Judicial Council’s 1992 request for comments
demonstrates “the drafters’ intent to set an outer time limit after
judgment within which statutory attorney fee claims could be
made.” (Carpenter v. Jack in the Box Corp. (2007) 151
Cal.App.4th 454, 466 (Carpenter).) In the request for comments,
the Judicial Council stated that the proposed amendments would
“‘eliminate any possible implication that an attorney fee claim
could be presented in an unlimited time after entry of judgment
or issuance of a remittitur on appeal.’” (Id. at pp. 466–467.)
The Administrative Office of the Courts received a
substantial number of comments to the proposed rule.
“Comments opposed the proposed amendment on the basis that
the time suggested for claiming attorney fees would be
inadequate for the more complex attorney fee issues that could
arise under Code of Civil Procedure section 1021.5. The bulk of
the comments, including [a] comment from the State Bar of
California, agreed that a 60-day time period would be reasonable
for all attorney fee motions.” (Sanabria, supra, 92 Cal.App.4th at
p. 428.) “The State Bar’s response to the request for comments
was considered significant and was attached as an exhibit to the
Administrative Office of the Courts’ report on the proposal. In its
response, the State Bar offered its own proposed language for
California Rules of Court, rule 870.2, which provided, in
15
pertinent part, as follows: ‘A notice of motion to claim
prejudgment attorney fees shall be served and filed within 60
days after the date of mailing of the notice of entry of judgment or
dismissal by the clerk under Code of Civil Procedure
section 664.5 or the date of service of written notice of entry of
judgment or dismissal, or within 180 days after entry of
judgment, whichever is first.’” (Ibid.) “The Administrative Office
of the Courts interpreted this proposal as ‘a requirement that the
notice of motion for fees be filed within what is, in effect, the time
for filing a notice of appeal.’” (Ibid.)
Believing a 60-day time period to be appropriate, the
Administrative Office of the Courts prepared another draft of
rule 870.2, incorporating the time periods for filing a notice of
appeal. (Sanabria, supra, 92 Cal.App.4th at p. 428.) To address
concerns that the proposed time period after notice of entry or
entry of judgment might not be sufficient, the rule was further
amended to allow the parties to stipulate to extend the time until
60 days after the deadline to file an appeal, or, in the event an
appeal was filed, until the deadline for claiming costs on appeal.
The rule was also amended to authorize the trial court to grant
further extensions of time for good cause. (Carpenter, supra, 151
Cal.App.4th at p. 468.) The new draft was circulated and the
language of then rule 870.2 was adopted. (Sanabria, at p. 428.)
The Sanabria Court concluded, “Two things are apparent
from this history. The first is that California Rules of Court, rule
870.2 was adopted in order to provide time limits within which
all motions for attorney fees in civil cases must be made. The
second is that any omission in the language of the rule with
respect to setting forth time limits for moving for attorney fees
after the entry of voluntary dismissal was wholly inadvertent.”
16
(Sanabria, supra, 92 Cal.App.4th at pp. 428–429.) It was clear
that rule 870.2 “provides time limits for motions for attorney fees
in all civil cases, and its 60-day time limit commences to run at
notice of entry of judgment or dismissal. Any other
interpretation would be irrational and thwart the rulemaker’s
intent.” (Id. at p. 429.)
Rule 3.1702’s history indicates that neither the drafters of
the rule nor the parties commenting on the proposed rule
contemplated a trial court shortening the deadline for filing a
motion for attorney fees so that the motion had to be filed before
entry of judgment or dismissal. The drafters intended to have a
uniform rule for all claims for statutory or contractual attorney
fees, and they determined the 60 and 180-day periods after entry
of judgment or dismissal provided adequate time for preparing
motions. These factors lead us to conclude that if a trial court
could shorten the filing period for a fee motion to occur before
entry of judgment or dismissal, it would thwart the drafters’
intent.
This interpretation is also consistent with the numerous
cases holding that the time to begin calculating the deadline for a
party to file a motion for attorney fees under rule 3.1702
commences with the entry of judgment or dismissal. The
deadline is triggered by the “‘conclusion of the litigation,’” “a
terminus point typically marked by the ‘entry of judgment or
dismissal.’” (Catlin Ins. Co., Inc. v. Danko Meredith Law Firm,
Inc. (2022) 73 Cal.App.5th 764, 781.) “Under this timing scheme,
the clock starts to run from either the service of notice of entry of
judgment or dismissal (starting a 60-day clock), or if no such
notice is given, the entry of judgment or dismissal (starting a
180-day clock). (Rules 3.1702(b)(1), 8.104(a)(1)(A)–(C).)” (Ibid.)
17
A reading contrary to these holdings would require a prevailing
party to seek fees “for services up to and including the rendition
of judgment in the trial court” before judgment or dismissal is
actually entered and all prejudgment fees are known.
(Rule 3.1702, subd. (b)(1).) It could promote piecemeal litigation
over fees, rather than the filing of a single motion to seek all fees
incurred to bring a matter to conclusion within a reasonable
amount of time after the matter has clearly concluded.
4. Rule 1.10 Did Not Authorize the Trial Court to
Shorten the Deadline for Filing a Fee Motion to Before
Entry of Dismissal
Subaru does not address the history behind rule 3.1702
raised in Javidian’s opening brief. Subaru relies solely on
rule 1.10, subdivision (c), to argue the trial court was authorized
to shorten the time for filing a fee motion. That rule grants trial
courts authority to “extend or shorten the time within which a
party must perform any act under the rules,” “[u]nless otherwise
provided by law.” As analyzed above, rule 3.1702 restricts a trial
court’s ability to shorten the deadline so that it occurs prior to
judgment or dismissal. Thus, rule 3.1702 prevents the court from
shortening the time to file the motion in the manner that it did in
this case.
Subaru also contends that even if there was error, the
decision to deny Javidian’s fee motion must be affirmed because
there was no miscarriage of justice.9 According to Subaru,
9 Our state Constitution provides that “[n]o judgment shall be set
aside, or new trial granted, in any cause, . . . for any error as to any
matter of procedure, unless, after an examination of the entire cause,
including the evidence, the court shall be of the opinion that the error
complained of has resulted in a miscarriage of justice.” (Cal. Const.,
18
Javidian was not prejudiced by the trial court’s ruling because it
was his own fault that he did not file his motion for attorney fees
prior to the court’s deadline. However, Subaru does not dispute
that Javidian would have recovered at least some portion of his
attorney fees had the court considered his motion on the merits.
The parties’ settlement agreement explicitly provided that
Subaru agreed to pay Javidian’s attorney fees. Therefore, the
court-ordered deadline prejudiced Javidian, as it deprived him of
his entitlement to a fee award.
art. VI, § 13.) A miscarriage of justice is shown where it appears
“reasonably probable” that the appellant would have achieved a more
favorable result in the absence of error. (Cassim v. Allstate Ins. Co.
(2004) 33 Cal.4th 780, 800.)
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DISPOSITION
The order denying Javidian’s motion for attorney fees is
reversed and the case is remanded to the trial court for a
determination of the amount to be awarded. The parties are to
bear all their own costs on appeal.10
MORI, J.
We concur:
COLLINS, Acting P. J.
ZUKIN, J.
10 Our opinion should not be read as precluding a party from filing
a fee motion earlier than the deadline. (See Yuba Cypress Housing
Partners, Ltd. v. Area Developers (2002) 98 Cal.App.4th 1077, 1086
[“plaintiff's motion for attorney fees, filed a little over one month after
the parties reached a stipulated judgment but almost two months prior
to entry of the judgment,” and decided more than six months after
judgment, was timely as the other party was not misled or
prejudiced].) Nor do we address a court’s ability to set a shorter
deadline under other circumstances, for example, where the parties
stipulate to an earlier deadline.
20