Failure to Comply with CRC 3.1702’s Deadline Was Dispositive.
California Rules of Court, rule 3.1702 requires that a motion to claim attorney’s fees for services up to and including the rendition of a trial court judgment must be served and filed within the time for filing a notice of appeal, which is normally (a) 60 days after notice of entry is given by the superior court clerk or opposing party or 60 days after a file-stamped copy of an appealable order is mailed by the opposing party, or (b) 180 days after entry of judgment where no notice is provided. This Judicial Council rule must be rigorously followed in order to avoid timeliness arguments that can cost a litigant an opportunity to recoup fees for prevailing on an anti-SLAPP motion (with fees being mandatory for a prevailing defendant).
An attorney felt the brunt of not complying with rule 3.1702 deadlines in Pyle v. Horowitz, Case No. A117105 (1st Dist., Div. 3 Sept. 30, 2008) (unpublished).
Attorney won an anti-SLAPP motion by which a malicious prosecution action against him was dismissed through service of a notice of entry of the dismissal on April 5, 2006. However, attorney did not timely file his fee motion on June 5, 2006, waiting instead to file on July 25, 2006. The trial court denied attorney’s fee motion as untimely. Attorney then filed a motion for relief under Code of Civil Procedure section 473, arguing that his failure to timely file was caused by excusable neglect. During the section 473 law and motion proceeding, attorney conceded that the proffered excuse for failure to file did not affect his failure to file by June 5, 2006 (the fee motion deadline). The trial court predictably denied the 473 request, prompting an appeal by aggrieved attorney.
The First District, Division 3, in a 3-0 opinion by Presiding Justice McGuiness, affirmed the 473 denial, determining that attorney did not timely file his fee motion.
The order of dismissal was a final judgment triggering the 60-day deadline to file a fee motion. (See Melbostad v. Fisher, 165 Cal.App.4th 987, 995 (2008); Kahn v. Lasorda’s Dugout, Inc., 109 Cal.App.4th 1118, 1120 n. 1 (2003).)
Attorney tried to blunt this result by relying upon Carpenter v. Jack in the Box Corp., 151 Cal.App.4th 454 (2007). Carpenter was not helpful to attorney, because it interpreted “rule 3.1702 such that the time limits imposed by the rule do not commence to run in connection with a motion for fees under [the ant-SLAPP statute] until entry of judgment.” (Id. at 466 n. 9.) In attorney’s case, however, the “entry of judgment” was the entry of the order of dismissal, with the April 5, 2006 service triggering the 60 day deadline. Furthermore, the appeal of the anti-SLAPP grant by plaintiff did not impact the result, because “[t]he filing deadline for seeking attorney fees for services rendered before entry of a trial court judgment is not automatically stayed by an appeal.” (Slip Opn., at p. 15.) Attorney’s failure to timely file the fee motion was damning, compounded by his failure to proffer any excuse for not filing by the June 5, 2006 deadline.