Filed 9/2/21 Gallop v. Duval CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION TWO

MARILYN GALLOP,

Plaintiff and Appellant,

v.

VICTOR DUVAL et al.,

Defendants and Respondents.

 B308531

 (Los Angeles County

 Super. Ct. No.

 SS027452)

APPEAL from an order of the Superior Court of 

Los Angeles County. Henry Jay Ford III, Judge. Reversed and 

remanded with directions.

Law Offices of Bennett Kerns and Bennett Kerns for 

Plaintiff and Appellant.

Law Offices of Joseph F. Hart and Joseph F. Hart for 

Defendants and Respondents.

_________________________
2

Marilyn Gallop (appellant) contends that the trial court 

erred when it denied her motion for attorney fees as untimely

when it was filed on February 5, 2020. We agree. Contrary to 

what the trial court concluded, appellant’s notice of ruling on 

posttrial matters did not constitute notice of entry of that order. 

Thus, California Rules of Court, rules 3.1702(b)(1), 8.104(a)(1)(A), 

8.108(b)(1)(A) and 8.108(c)(1) did not require appellant to serve 

her motion in January 2020.

1 Rather, because there was no 

notice of entry of the posttrial order, rules 1.10(b), 3.1702(b)(1),

8.108(b)(1)(C) and 8.108(c)(3) gave appellant to Wednesday,

May 13, 2020, to file her motion by extending the time to 180

days after entry of judgment on November 15, 2019. Thus, we

1 All further references to rules are to the California Rules of 

Court.

Rule 3.1702(b)(1) ties the time to file a motion for attorney 

fees to the time to notice an appeal under rules 8.104 and 8.108. 

The trial court determined that rule 8.104(a)(1)(A) applied and 

required the motion to be filed 60 days after notice of entry of 

judgment was mailed on Monday, November 18, 2019. The trial 

court stated that the final day for appellant to file her motion was 

Monday, January 20, 2020. “The time in which any act provided 

by law is to be done is computed by excluding the first day, and 

including the last, unless the last day is a holiday, and then it is 

also excluded.” (Code Civ. Proc., § 12.) “[I]f the last day for the 

performance of any act that is required by these rules to be 

performed within a specific period . . . falls on a Saturday, 

Sunday, or other legal holiday, the period is extended to and

includes the next day that is not a holiday.” (Rule 1.10(b).) The 

60th day, not including November 18, 2019, was January 17, 

2020. We note that January 20, 2020, was observed as a holiday 

by the Los Angeles Superior Court to celebrate the birthday of 

Martin Luther King, Jr.
3

reverse the denial of appellant’s motion. On remand, the trial 

court shall consider the motion on the merits.

FACTS

Appellant sued Canon Opticians, Inc., Victor Duval, and 

Claudia Lewis (collectively respondents) for Elder Financial 

Abuse after they sold her over 100 pairs of luxury eyeglasses for 

which she paid $79,530 and still owed $173,000. On October 4, 

2019, the trial court filed its Statement of Decision and Order for 

Judgment awarding appellant $25,000. The trial court filed its 

judgment on November 15, 2019, and its clerk mailed notice of 

entry of judgment on November 18, 2019.

2 At some point, 

appellant and respondents filed motions to vacate the judgment 

and for a new trial. The trial court denied those motions on 

December 9, 2019. That same day, appellant served a notice of 

ruling. 

Three weeks later, appellant filed an ex parte application to 

shorten time to hear her motion for attorney fees. She noted that 

her “motion for attorney’s fees initially needed to have been filed 

by January 15, 2020, sixty (60) days after notice of judgment. . . . 

Such sixty (60) days marks the time by which a Notice of Appeal 

must be filed. [¶] However, such deadline has been extended to 

2 The only notice attached to the judgment is an October 21, 

2019, notice of the proposed judgment. However, appellant does 

not dispute that the superior court clerk served notice of entry of 

judgment. We observe that the register of actions states that the

notice was filed November 15, 2019. While appellant states that 

the notice was sent on November 15, 2019, and a minute order 

states that notice was sent on November 18, 2019, the 

discrepancy is immaterial. For purposes of this opinion, we 

accept November 18, 2019, as the date the superior court clerk 

mailed notice of entry of judgment.
4

thirty (30) days after ‘the superior court clerk or a party serves 

an order denying’, a motion for new trial or a notice thereof. But 

for this ex parte request, [appellant’s] motion would be set 

beyond the latest anticipated date a notice of appeal . . . need [to]

be filed.”3 She also stated that “sixty (60) days from 

November 15, 2019 (undetermined as now extended) to file a

notice of appeal.” The trial court denied the ex parte application.

On February 5, 2020, appellant served a motion for 

attorney fees.

4 The trial court denied the motion as untimely. By 

rule, the motion had to be filed within the time for appellant to 

notice an appeal. It noted that the 60-day deadline for appellant 

to file a notice of appeal under rule 8.104(a) was triggered when 

notice of entry of judgment was mailed on November 18, 2019, by 

the superior court clerk, and the time to appeal under that rule 

expired on January 20, 2020. Per the trial court, service of 

appellant’s notice of ruling started a 30-day clock that expired on 

January 9, 2020, and therefore rule 8.108 did not provide 

appellant more time to file an appeal than did rule 8.104. As a 

consequence, appellant was required to file her motion for 

attorney fees on or before January 20, 2020.

This timely appeal followed.

3 Appellant believed the notice of entry of judgment was sent 

on November 15, 2019. If that was true, and if the 60-day rule 

set forth in rule 8.104(a)(1)(A) had been applicable, then the 

motion for attorney fees would have needed to be filed by 

Tuesday, January 14, 2020.

 

4 Appellant also requested costs. The request for costs is not 

at issue in this appeal.
5

DISCUSSION

We are called upon to apply the law to undisputed facts. 

Our review is de novo. (Tsasu LLC v. U.S. Bank Trust, N.A.

(2021) 62 Cal.App.5th 704, 715.)

A motion for attorney fees must be filed and served “within 

the time for filing a notice of appeal under rules 8.104 and 8.108 

in an unlimited civil case[.]” (Rule 3.1702(b)(1).) Under 

rule 8.104(a), an appeal must be filed at the earliest of 60 days 

after the superior court clerk serves on the party filing the appeal 

a document entitled “Notice of Entry” of judgment, 60 days after 

the party filing the notice of appeal serves or is served by a party 

with a document entitled “Notice of Entry” of judgment or a fileendorsed copy of the judgment, or 180 days after entry of 

judgment. 

Rule 8.108 extends the “time to appeal otherwise 

prescribed in rule 8.104(a); it does not shorten the time to appeal. 

If the normal time to appeal stated in rule 8.104(a) is longer than 

the time provided in this rule, the time to appeal stated in 

rule 8.104(a) governs.” (Rule 8.108(a).) 

If a properly noticed motion for new trial is denied, the time 

to appeal the judgment is extended to the earliest of “30 days 

after the superior court clerk, or a party[,] serves an order 

denying the motion or a notice of entry of that order[,]” “30 days 

after denial of the motion by operation of law[,]” or “180 days 

after entry of judgment.” (Rule 8.108(b)(1)(A)-(C).) If a properly 

noticed motion to vacate is denied, the time to appeal is extended 

to the earliest of “30 days after the superior court clerk, or a 

party[,] serves an order denying the motion or a notice of entry of 

that order[,]” “90 days after the first notice of intention to move—
6

or motion—is filed[,]” or “180 days after entry of judgment.” 

(Rule 8.108(c)(1)-(3).)

Under rule 8.104, appellant’s motion for attorney fees had 

to be filed 60 days from notice of entry of judgment mailed by the 

superior court clerk on November 18, 2019. That 60-day time 

frame expired on January 17, 2020. Thus, appellant’s motion for 

attorney fees was untimely unless the time to file was extended 

by rule 8.108. On December 9, 2019, appellant served notice of 

the trial court’s ruling on the posttrial motions. If it operated as 

notice of entry of the order, then the 30-day time frame provided 

for in rule 8.108(b)-(c) expired on January 7, 2020, and therefore 

did not extend the time to file the motion past January 17, 2020. 

But if the notice of the trial court’s ruling did not operate as 

notice of entry of the order, the time for appellant to file her 

motion for attorney fees was extended to 180 days after entry of 

judgment pursuant to rule 8.108(b)(1)(C).

5 Under this latter

scenario, appellant had until Wednesday, May 13, 2020 (180 days 

after notice of entry of judgment) to file her motion for attorney 

fees. Accordingly, her motion was timely filed on February 5, 

2020.

Case law establishes that “serving a notice of ruling is not 

the same as serving a copy of [an] order or a notice of entry of 

[that] order, as contemplated by the rules governing the 

timeliness of appeals. [Citation.]” (Carmel, Ltd. v. Tavoussi

(2009) 175 Cal.App.4th 393, 399 [concluding that a notice of 

5 Respondents do not suggest that the 90-day rule in 

rule 8.108(c)(2) applies. They contend that the time frame is 

either 30 days or 180 days. We express no opinion on the 

applicability of rule 8.108(c)(2).
7

ruling of a denial of a motion to vacate the judgment did not 

trigger the 30-day time period under rule 8.108(c)]; Gassner v. 

Stasa (2018) 30 Cal.App.5th 346, 356 [because a notice of ruling 

“was not entitled ‘Notice of Entry’ and did not attach a filestamped copy of the trial court’s minute order, it did not trigger 

the 60-day deadline to appeal under rule 8.104(a)(1)(B)”]; 

Anderson v. Chikovani (2010) 181 Cal.App.4th 1397, 1398–1399 

[“[W]here a party files a valid motion for new trial, and the trial 

court issues a timely order denying that motion, but no one 

serves the order or notice of entry of that order, then the 

applicable deadline for filing the notice of appeal from the 

judgment is 180 days”].)

Despite these cases, respondents contend that the notice of 

ruling was sufficient to trigger the 30-day time limit in 

rule 8.108(b)-(c). As a backstop, respondents suggest that 

appellant’s motion for attorney fees was properly denied because 

she made binding admissions in her ex parte application that the 

deadline to file her motion was January 15, 2020. (Fassberg

Construction Co. v. Housing Authority of the City of Los Angeles

(2007) 152 Cal.App.4th 720, 752 [“[A]n oral statement by counsel 

in the same action is a binding judicial admission if the

statement was an unambiguous concession of a matter then at 

issue and was not made improvidently or unguardedly”].) 

Case law is settled. The notice of ruling was not the same 

as notice of entry of the order. Respondents have not cited any 

precedent establishing otherwise. Consequently, appellant’s 

motion was timely filed. In addition, we conclude that appellant 

did not make a binding judicial admission that the time to appeal 

and file her motion for attorney fees expired on January 15, 2020. 

Notably, her ex parte papers indicated her belief that the time 
8

had been extended. Moreover, the timeliness of a future motion 

for attorney fees was not at issue in the ex parte application. 

(Timeliness was not an issue until the trial court ruled on that 

future motion.) Finally, any statement regarding the final date a 

motion for attorney fees had to be filed per the California Rules of 

Court was a legal conclusion and cannot be counted as a judicial 

admission. (Stroud v. Tunzi (2008) 160 Cal.App.4th 377, 384 

[“judicial admissions involve facts, not legal theories or 

conclusions”].) Thus, denial of the attorney fees motion was not 

supported by a judicial admission.

DISPOSITION

The order is reversed. On remand, the trial court shall 

consider appellant’s motion for attorney fees. Appellant is 

entitled to her costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

__________________________, J.

ASHMANN-GERST

We concur:

_______________________, P. J.

LUI

_______________________, J.

HOFFSTADT