First District, Division 3 Affirms Trial Court’s Denial of Fees After Litigant Waited 17 Months Before Moving For a Fee Award.
Boy, we knew that the next case was ominous for somebody when the appellate court opened with this sentence: “By their inaction, counsel for the plaintiff, have permitted a large measure of victory to slip from their jaws into the hands of defeat.” As you will see, the moral of the story is to observe the fee motion deadlines contained in the California Rules of Court or else risk the mixed fate of the “victor” in this next case—who won a merit judgment but lost the ability to recoup fees.
In Nutt v. U.S. Food Service, Inc., Case No. A122333 (1st Dist., Div. 3 May 5, 2009) (unpublished), plaintiff accepted defendant’s $201,000 998 offer, with the court to determine the reasonable attorney’s fees and costs to be awarded. It took some time for the judgment to be entered, and the defense sent several letters asking for the timing of the fee motion so that the entire case could be resolved. Approximately seventeen months after entry of judgment, plaintiff finally moved for a fees award. The trial court initially denied the motion because it was untimely. Plaintiff filed a motion to be relieved of his default pursuant to Code of Civil Procedure section 473(b). The lower court denied the motion based on lack of jurisdiction, given that it was sixth months after the deadline for bringing the motion. Plaintiff moved for reconsideration, arguing that the section 473(b) six-month period did not begin to run until the date on which the court ruled that the fee motion was untimely. (Actually, there is good authority for this. See Lee v. Wells Fargo Bank, 88 Cal.App.4th 1187, 1199-1200 (2001); Colburn Biological Institute v. DeBolt, 6 Cal.2d 631 (1936).) The lower court granted reconsideration, but again denied the motion based on finding no mistake, inadvertence, or excusable neglect.
Plaintiff appealed, but lost upon review by the First District, Division 3—failing to surmount the abuse of discretion standard used to scrutinize the 473 ruling.
The Court of Appeal focused upon the fact that plaintiff’s counsel was familiar enough with procedural rules to have been on notice of the time deadlines. This conclusion was buttressed by the fact that the defense sent several letters pleading for a fee motion resolution so that the entire case could be resolved. The trial court was justified in determining that the delay in moving for fees was unreasonable, even if the 473 motion was made within the jurisdictional six-month period. So, the “hands of defeat” was what plaintiff landed into after scoring a victory on the merits.
