Filed 12/3/14 Van Loon v. Winchester-Wesselink CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



RICHARD VAN LOON et al.,

         Plaintiffs and Appellants,                                      E058826

v.                                                                       (Super.Ct.No. RIC427504)

WINCHESTER-WESSELINK, LLC et al.,                                        OPINION

         Defendants and Respondents.



         APPEAL from the Superior Court of Riverside County. Sharon J. Waters, Judge.

Affirmed.

         Lizarraga Law Firm, Frank J. Lizarraga, Jr., and Justin M. Crane for Plaintiffs and

Appellants.

         Burkhalter Kessler Clement & George, Daniel J. Kessler and Amber M. Sanchez

for Defendants and Respondents David Thornton, Leo Wesselink, and Cornelia

Wesselink.

         Law Offices of Carl Pentis and Carl J. Pentis for Defendant and Respondent

Winchester-Wesselink, LLC.
                                                             1
       Plaintiffs and appellants Richard and Dianne Van Loon challenge the trial court’s

denial of a contract-based award of attorney fees following our affirmance of a judgment

in their favor. Plaintiffs contend the court abused its discretion in denying the fee award

as untimely because their request for attorney fees pursuant to Code of Civil Procedure

section 1033.51 was referenced in their timely filed memorandum of costs. They argue

that such reference amounted to substantial compliance with California Rules of Court,

rule 3.1702(c), such that defendants and respondents David Thornton, Leo Wesselink,

and Cornelia Wesselink2 were on notice and not prejudiced by the lack of an

accompanying motion for attorney fees. Alternatively, plaintiffs fault the trial court for

leading them to believe that the time for filing the motion had been extended, and for

denying relief under Code of Civil Procedure section 473. We reject plaintiffs’

contentions and affirm.

                           I. PROCEDURAL BACKGROUND

       Plaintiffs initiated this action for breach of contract, declaratory and injunctive

relief against defendants regarding the operation of Winchester-Wesselink, LLC, a cheese

company. Judgment was entered in favor of plaintiffs and we affirmed, awarding costs,


       1All further statutory references are to the Code of Civil Procedure unless
otherwise indicated.

       2 Initially Jules Wesselink, Sr. was named as a defendant; however, on
February 2, 2010, he died. On September 23, 2010, the court granted Cornelia
Wesselink’s request to substitute as defendant in his place. (Richard Van Loon, et al. v.
Thornton, et al.; Winchester-Wesselink, LLC et al. (Aug. 22, 2012, E049942) [nonpub.
opn.].) Although others were named as defendants, the jury’s verdict was limited to only
David Thornton, Leo Wesselink, and Jules (Cornelia) Wesselink.

                                              2
including attorney fees, on appeal to be determined by the trial court. (Richard Van Loon

et al. v. Thornton et al., supra, case No. E049942.) The remittitur was issued by this

court on October 25, 2012, and filed by the Superior Court on October 29, 2012. On

November 30, 2012, plaintiffs filed their memorandum of costs, identifying other costs as

attorney fees pursuant to section 1033.5, subdivision (a), in the amount of $160,535.55.

       Defendants moved to strike/tax costs, and on February 5, 2013, the trial court

stated: “As to the attorney’s fees, you need to bring a motion.” Plaintiffs’ counsel stated

he would be bringing the motion, and defendants’ counsel objected, arguing that the issue

of attorney fees is separate from the issue of costs. The court agreed with defendants’

counsel and indicated that it needed further briefing, i.e., a “supplemental declaration . . .

with appropriate documentation of all costs paid for reporters’ transcripts . . . .” The

matter was continued to February 20, 2013, wherein costs were awarded in an agreed-

upon amount.

       On February 21, 2013, plaintiffs filed their motion for attorney fees, noting that it

was being brought “after Plaintiffs timely filed their Memorandum of Costs on Appeal,”

because the trial court had “stated that it prefers a noticed motion to fix attorney’s fees.”

According to plaintiffs, the court’s statement of preference amounted to an instruction

that “extended the time for Plaintiffs’ to file their Motion for Attorney’s Fees.”

Nonetheless, out of an abundance of caution, plaintiffs also attached their attorney’s

declaration pursuant to section 473, subdivision (b). Counsel explained in the motion

that if the motion was deemed to be untimely, then it was “due to the ‘mistake,

inadvertence, surprise, or excusable neglect’ of Plaintiffs[’] legal counsel.” He added, in

                                              3
his declaration, that “[p]ursuant to [his] experience, training, and understanding, an award

of attorney’s fees based upon [California Code of Civil Procedure section] 1033.5[,

subdivision] (a) does not require a noticed motion.”

       Defendants opposed the motion for attorney fees on the ground that it was

untimely. They also challenged plaintiffs’ counsel’s claim that he believed a noticed

motion was not required and that his failure to timely file such motion should be excused.

Defendants pointed out that plaintiffs’ counsel’s actions in this case showed his

awareness of the requirements of section 1033.5, subdivision (c). For example, on

November 13, 2009, plaintiffs moved for their attorney fees pursuant to section 1033.5

and California Rules of Court, rule 3.1702, after obtaining judgment in their favor. At

that time, plaintiffs’ memorandum of costs noted that a motion for attorney fees was filed

concurrently. Defendants further pointed out that “the present motion includes a

declaration from [plaintiffs’ counsel] that verifies the time and charges requested.

Amongst those time and charge entries on October 19, [2012,] is the following

description of work . . . : ‘legal research regarding deadline for motion for attorney’s

fees.’ . . . 45 days prior to the date on which [California Rules of Court, rule] 3.1702(c)

bars the instant motion. What is more, [plaintiffs’ counsel] held a conference with his

staff on October 18, 2012 regarding a motion [for] attorney’s fees. And, 5 months

earlier, on May 14, 2012, [he] held a conference with his staff about how to proceed with

costs, and the next day [a paralegal] began drafting (a) a motion for attorney’s fees, and

(b) a motion for costs.” In total, plaintiffs’ counsel claimed “36.5 hours ($4,751) related

to preparing a motion for attorney’s fees and researching the time bar to filing the

                                              4
motion.” Thus, defendants argued that plaintiffs’ counsel was unable to establish good

cause to support an extension of time to bring a motion for attorney fees. (Calif. Rules of

Court, rule 3.1702(d).)

       On March 27, 2013, the trial court denied the motion for attorney fees, stating:

“Contrary to moving party’s suggestion, this Court, on February 5, 2013, at the hearing

on defendant’s motion to tax costs, did not simply ‘request’ moving party to file a

motion. Rather the Court specifically stated that a noticed motion was required. The

Court further advised the parties at that time that it was not ruling on whether any such

motion could be properly and timely filed. [¶] “[California Rules of Court, rule] 3.1702

allows the Court to extend the time for filing a motion for attorney fees ‘for good cause

shown.’ Assuming that rule applies, here moving party has failed to establish good cause

for the belated filing of this motion. [Code of Civil Procedure] Section

1033.5[, subdivision] (c)(5) could not be any clearer in requiring a noticed motion when

seeking fees based on a contract. Counsel previously filed a motion for pre-judgment

attorney’s fees reflecting his awareness of the requirement for a noticed motion.

[California Rules of Court, rule] 3.1702(c) also could not be any clearer. Moving party’s

counsel’s vague reference to prior experience that somehow led him to conclude that

attorney fees on appeal were properly sought by way of a cost bill is insufficient to

establish good cause. For the same reasons, moving party has failed to establish

inadvertence or excusable neglect under Code of Civil Procedure Section 473.”




                                             5
                                     II. DISCUSSION

       Plaintiffs challenge the trial court’s ruling denying their motion for attorney fees

contending the trial court (1) abused its discretion in concluding that they failed to

comply with the timeline established in California Rules of Court, rule 3.1702; (2) led

them to believe that it had extended the time for such compliance; and (3) abused its

discretion in refusing to grant relief under section 473, subdivision (b).

       A. A Timely Motion for Attorney Fees Is Required and the Trial Court

Lacks Discretion to Disregard Noncompliance

       Code of Civil Procedure section 1033.5, subdivision (a)(10), permits an award of

attorney fees as an item of costs when authorized by contract (subd. (a)(10)(A)), statute

(subd. (a)(10)(B)), or law (subd. (a)(10)(C)). Subdivision (c)(5) of section 1033.5 further

provides that attorney fees awarded under Civil Code section 1717 fall within the scope

of section 1033.5, subdivision (a)(10)(A), and thus “shall be fixed either upon a noticed

motion or upon entry of a default judgment, unless otherwise provided by stipulation of

the parties.” (Code Civ. Proc., § 1033.5, subd. (c)(5), italics added.) The Legislature

enacted the relevant portions of section 1033.5, subdivision (c)(5) to clarify that the

proper method to recover contractual attorney fees is “as an item of costs awarded upon

noticed motion,” rather than as an element of damages pleaded in the complaint. (Chinn

v. KMR Property Management (2008) 166 Cal.App.4th 175, 194.)

       It is relevant here to note the Legislature’s comments accompanying its 1990

amendments to section 1033.5: “‘The Legislature finds and declares that there is great

uncertainty as to the procedure to be followed in awarding attorney’s fees where

                                              6
entitlement thereto is provided by contract to the prevailing party. It is the intent of the

Legislature in enacting this act to confirm that these attorney’s fees are costs which are to

be awarded only upon noticed motion, except where the parties stipulate otherwise or

judgment is entered by default. It is further the intent of the Legislature to vest the

Judicial Council with the discretion provided in Section 1034 of the Code of Civil

Procedure to adopt procedural guidelines establishing the time for the hearing of these

motions . . . .’ (Stats. 1990, ch. 804, § 2.)” (Bankes v. Lucas (1992) 9 Cal.App.4th 365,

371 [untimely motion for attorney fees resulted in reversal of attorney fee award on

appeal]; italics added.)

       Thus, plaintiffs were required to file a noticed motion for attorney fees, and were

further required by California Rules of Court to do so “within the time for serving and

filing the memorandum of costs” (Cal. Rules of Court, rule 3.1702(c)(1)), specifically

“[w]ithin 40 days after the clerk sends notice of issuance of the remittitur” (Cal. Rules of

Court, rule 8.278(c)(1)). They did not do so, and contrary to plaintiffs’ claim, the trial

court lacks discretion to disregard their noncompliance, even if defendants are not

prejudiced. (Russell v. Trans Pacific Group (1993) 19 Cal.App.4th 1717, 1726-1730

(Russell).)

       “Nevertheless, the mandatory nature of the procedural requirements does not mean

that the trial court is deprived of jurisdiction to grant relief under section 473 . . . upon a

proper showing of mistake, inadvertence, surprise, or excusable neglect. [Citations.] We

find nothing in the 1990 legislation that would alter the nonjurisdictional nature of the

mandatory procedural steps for claiming costs.” (Russell, supra, 19 Cal.App.4th at pp.

                                               7
1728-1729, fn. omitted.) Accordingly, we turn to the trial court’s denial of relief under

section 473.

       B. No Abuse of Discretion in Denying Relief

       As indicated, plaintiffs moved for relief under section 473 assuming there was a

default under the 40-day rule and there was no substantial compliance with it. (§ 473,

subd. (b).) Plaintiffs contend the trial court abused its discretion in denying relief

because their counsel “declared that it was his understanding that an attorney’s fee award

under . . . [section] 1033.5 did not require a noticed motion,” that “the trial court was

either requesting a noticed motion . . . or that the trial court was exercising its discretion

to extend the time in which to file a motion for attorney’s fees.” We conclude plaintiffs

fail to show the trial court abused its discretion in refusing relief under the standards of

section 473.

       Section 473 permits the trial court to grant relief upon a showing of excusable

neglect, mistake, inadvertence, or surprise. The determination of a section 473 motion

lies in the trial court’s discretion. (Russell, supra, 19 Cal.App.4th at p. 1729.) Here,

plaintiffs’ argument in favor of relief was based on their counsel’s “understanding” that

the law did not require a separate motion for attorney fees, that the trial court was the one

that required such motion, and that the trial court extended the time for filing such

motion. As for counsel’s “understanding” that no separate motion for attorney fees was

necessary, ignorance of the law is no excuse. (Robbins v. Los Angeles Unified School

Dist. (1992) 3 Cal.App.4th 313, 319 [“‘Ignorance of the law coupled with negligence in

ascertaining it will certainly sustain a finding denying relief’”].) As stated above,

                                               8
compliance with the procedural requirements of section 1033.5, subdivision (c)(5), and

California Rules of Court, rules 3.1702(c)(1) and 8.278(c)(1), is mandatory, and the trial

court lacks discretion to disregard their noncompliance, even if defendants are not

prejudiced. (Russell, supra, 19 Cal.App.4th at pp. 1726-1729.) Moreover, we have

reviewed the transcript and conclude that the trial court never authorized an extension of

time for plaintiffs to file their motion for attorney fees.

       Plaintiffs failed to make a proper showing for section 473 relief and have failed to

show that the trial court abused its discretion in denying such relief.

                                        III. DISPOSITION

       The judgment is affirmed. Defendants and respondents shall recover their costs on

appeal.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                                 HOLLENHORST
                                                                                        J.
We concur:


       RAMIREZ
                                P.J.

       RICHLI
                                   J.




                                               9
