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Waiting for a Formal Judgment Before Filing an Attorney Fee Motion Rendered the Motion Untimely

Tim Kowal     February 9, 2022

If you won your case and you have a right to recover attorney fees, mind the deadlines. The prevailing parties in Wallace v. Alameda Cnty. Mgmt. Emps. Ass'n (D1d5 Jan. 25, 2022) Case No. A162044 (nonpub. opn.) blew the deadline. The petitioners, who had won a writ of mandate in the trial court, actually had a couple of decent ways to salvage the situation. But they were not aware of them until it was too late.

The case was a union dispute over the election of the union’s board. The petitioners sought a writ of mandate under Code of Civil Procedure section 1085, and a declaration the officials breached their fiduciary duties. The trial court granted writ relief, directing a new election be held. Five months later, the respondents filed a return stating they’d complied and the new election had been held. Two months after that, the petitioners moved for their fees.

The Deadline to Move for Fees Runs from the Final Order, and No Formal Judgment Was Required:

The petitioner’s fee motion was filed more than 180 days after the court had granted the writ. That was too late. "A notice of motion to claim attorney's fees for services up to and including 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 . . . ." (Cal. Rules of Court, rule 3.1702(b)(1).) Rule 8.104 requires a notice of appeal be filed, as relevant here, no later than "180 days after entry of judgment." (Rule 8.104(a)(1)(C).)

But wait, the petitioners argued. The time to appeal or file a fee motion could not have begun running, they argued, because there was no formal judgment. Not so. Here is a good statement of the law to clip-and-save:

“"A judgment is the final determination of the rights of the parties (Code Civ. Proc., § 577)' "when it terminates the litigation between the parties on the merits of the case and leaves nothing to be done but to enforce by execution what has been determined."' [Citation.]' "It is not the form of the decree but the substance and effect of the adjudication which is determinative. As a general test, which must be adapted to the particular circumstances of the individual case, it may be said that where no issue is left for future consideration except the fact of compliance or noncompliance with the terms of the first decree, that decree is final . . . ." '" (Dana Point Safe Harbor Collective v. Superior Court (2010) 51 Cal.4th 1, 5.)

Accordingly, it is immaterial that no formally designated "judgment" issued.

The same rule applies to orders granting or denying a petition for an extraordinary writ:

"[A]n order granting or denying a petition for an extraordinary writ constitutes a final judgment for purposes of an appeal, even if the order is not accompanied by a separate formal judgment." (Public Defenders' Organization v. County of Riverside (2003) 106 Cal.App.4th 1403, 1409.)

"That there are additional proceedings involving the return on the writ does not change the finality of the judgment issuing the writ." (Los Angeles Internat. Charter High School v. Los Angeles Unified School Dist. (2012) 209 Cal.App.4th 1348, 1354-1355.) 3 * attr(page-number) Instead, a subsequent order regarding "the adequacy of the [responding party's] return on the writ is appealable as an order enforcing the judgment." (Id. at p. 1355.)

The Petitioners Waived and Forfeited Their Remaining Arguments to Salvage Their Fee Motion:

The petitioners had two good arguments that might have salvaged their fee motion. Unfortunately, those arguments appear to have occurred to them too late.

First, the petitioners noted that the order granting the writ could not have been a final, appealable order, because that order did not dispose of all claims in the case. Recall that the petitioners also had asserted a cause of action for declaratory relief, seeking a declaration that the union officials had breached their fiduciary duties. And that claim was nowhere mentioned in the order granting the writ of mandate.

Good argument. Except for one thing, as the court noted: “But in their motion for attorney fees, appellants argued they ‘achieved complete success and a full remedy in this action.’” It was not until after the respondents argued the fee motion was untimely that appellants belatedly claimed the declaratory relief claim remained unresolved and they were really only seeking "interim attorney fees.”

So the petitioners had already neutered that argument.

The second way the petitioners might have salvage their fee motion was by seeking a good-cause extension of time. Under California Rules of Court rule 3.1702(d), the trial court may extend the time for filing a motion for fees for good cause. But the petitioners did not seek a good-cause extension. So obviously the trial court did not abuse its discretion in failing to consider granting an extension the petitioners never asked for.

The Upshot: Carefully calculate your post-trial and post-order deadlines, including deadlines to move for attorney fees. Entry of a key order is a good time to consult an appellate attorney.

Thanks to Marc Alexander and Mike Hensley of the California Attorney’s Fees blog for the tip to this case.

Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at CALpodcast.com, and publishes summaries of cases and appellate tips for trial attorneys. Contact Tim at [email protected] or (949) 676-9989.
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