First District, Division 4 Finds That Filing of Fee/Costs Motion 42 Days After Remittitur Issuance Was Proper.
In a case of first impression, parties successfully prevailing on an appeal with a fee-shifting situation filed their costs memorandum and motion for fees 42 days after issuance of the remittitur in the appellate cause. CRC, rules 8.278(c) and 3.1702(c) prescribe a 40-day deadline for a party claiming costs or fees awarded for winning on appeal to file the costs memorandum/fee motion. Was the 40-day deadline absolute or did the winning parties get the 5 extra days added for mailing of the remittitur under CCP § 1013?
The First District, Division 4 answered that question in Zarate v. Manuel, Case No. A125662 (1st Dist., Div. 4 Mar. 30, 2010) (unpublished).
And, the answer is . . . . the winning parties got the benefit of the 5-day mailing extension.
The Court of Appeal, in a 3-0 opinion authored by Presiding Justice Ruvolo, believed this was a straightforward matter of statutory interpretation, because the only exceptions to the general 5-day extension are motions for new trials, motions to vacate judgments, and notices of appeal. Because the 42-day filing by the winning parties was within the 45-day time frame (40 plus the 5-day mailing extension time), the lower court did not err in awarding those parties $23,760 in attorney’s fees and $125.03 in costs.
Query: Why is this an unpublished opinion?