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Filed 12/3/14 Van Loon v. Winchester-Wesselink CA4/2 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT 

DIVISION TWO 

RICHARD VAN LOON et al., 

 Plaintiffs and Appellants, 

v. 

WINCHESTER-WESSELINK, LLC et al., 

 Defendants and Respondents. 

 E058826 

 (Super.Ct.No. RIC427504) 

 OPINION 

 APPEAL from the Superior Court of Riverside County. Sharon J. Waters, Judge. 

Affirmed. 

 Lizarraga Law Firm, Frank J. Lizarraga, Jr., and Justin M. Crane for Plaintiffs and 

Appellants. 

 Burkhalter Kessler Clement & George, Daniel J. Kessler and Amber M. Sanchez 

for Defendants and Respondents David Thornton, Leo Wesselink, and Cornelia 

Wesselink. 

Law Offices of Carl Pentis and Carl J. Pentis for Defendant and Respondent 

Winchester-Wesselink, LLC. 
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 Plaintiffs and appellants Richard and Dianne Van Loon challenge the trial court’s 

denial of a contract-based award of attorney fees following our affirmance of a judgment 

in their favor. Plaintiffs contend the court abused its discretion in denying the fee award 

as untimely because their request for attorney fees pursuant to Code of Civil Procedure 

section 1033.51 was referenced in their timely filed memorandum of costs. They argue 

that such reference amounted to substantial compliance with California Rules of Court, 

rule 3.1702(c), such that defendants and respondents David Thornton, Leo Wesselink, 

and Cornelia Wesselink2 were on notice and not prejudiced by the lack of an 

accompanying motion for attorney fees. Alternatively, plaintiffs fault the trial court for 

leading them to believe that the time for filing the motion had been extended, and for 

denying relief under Code of Civil Procedure section 473. We reject plaintiffs’ 

contentions and affirm. 

I. PROCEDURAL BACKGROUND 

 Plaintiffs initiated this action for breach of contract, declaratory and injunctive 

relief against defendants regarding the operation of Winchester-Wesselink, LLC, a cheese 

company. Judgment was entered in favor of plaintiffs and we affirmed, awarding costs, 

 1 All further statutory references are to the Code of Civil Procedure unless 

otherwise indicated. 

2 Initially Jules Wesselink, Sr. was named as a defendant; however, on 

February 2, 2010, he died. On September 23, 2010, the court granted Cornelia 

Wesselink’s request to substitute as defendant in his place. (Richard Van Loon, et al. v. 

Thornton, et al.; Winchester-Wesselink, LLC et al. (Aug. 22, 2012, E049942) [nonpub. 

opn.].) Although others were named as defendants, the jury’s verdict was limited to only 

David Thornton, Leo Wesselink, and Jules (Cornelia) Wesselink. 
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including attorney fees, on appeal to be determined by the trial court. (Richard Van Loon 

et al. v. Thornton et al., supra, case No. E049942.) The remittitur was issued by this 

court on October 25, 2012, and filed by the Superior Court on October 29, 2012. On 

November 30, 2012, plaintiffs filed their memorandum of costs, identifying other costs as 

attorney fees pursuant to section 1033.5, subdivision (a), in the amount of $160,535.55. 

 Defendants moved to strike/tax costs, and on February 5, 2013, the trial court 

stated: “As to the attorney’s fees, you need to bring a motion.” Plaintiffs’ counsel stated 

he would be bringing the motion, and defendants’ counsel objected, arguing that the issue 

of attorney fees is separate from the issue of costs. The court agreed with defendants’ 

counsel and indicated that it needed further briefing, i.e., a “supplemental declaration . . . 

with appropriate documentation of all costs paid for reporters’ transcripts . . . .” The 

matter was continued to February 20, 2013, wherein costs were awarded in an agreedupon amount. 

 On February 21, 2013, plaintiffs filed their motion for attorney fees, noting that it 

was being brought “after Plaintiffs timely filed their Memorandum of Costs on Appeal,” 

because the trial court had “stated that it prefers a noticed motion to fix attorney’s fees.” 

According to plaintiffs, the court’s statement of preference amounted to an instruction 

that “extended the time for Plaintiffs’ to file their Motion for Attorney’s Fees.” 

Nonetheless, out of an abundance of caution, plaintiffs also attached their attorney’s 

declaration pursuant to section 473, subdivision (b). Counsel explained in the motion 

that if the motion was deemed to be untimely, then it was “due to the ‘mistake, 

inadvertence, surprise, or excusable neglect’ of Plaintiffs[’] legal counsel.” He added, in 
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his declaration, that “[p]ursuant to [his] experience, training, and understanding, an award 

of attorney’s fees based upon [California Code of Civil Procedure section] 1033.5[, 

subdivision] (a) does not require a noticed motion.” 

 Defendants opposed the motion for attorney fees on the ground that it was 

untimely. They also challenged plaintiffs’ counsel’s claim that he believed a noticed 

motion was not required and that his failure to timely file such motion should be excused. 

Defendants pointed out that plaintiffs’ counsel’s actions in this case showed his 

awareness of the requirements of section 1033.5, subdivision (c). For example, on 

November 13, 2009, plaintiffs moved for their attorney fees pursuant to section 1033.5 

and California Rules of Court, rule 3.1702, after obtaining judgment in their favor. At 

that time, plaintiffs’ memorandum of costs noted that a motion for attorney fees was filed 

concurrently. Defendants further pointed out that “the present motion includes a 

declaration from [plaintiffs’ counsel] that verifies the time and charges requested. 

Amongst those time and charge entries on October 19, [2012,] is the following 

description of work . . . : ‘legal research regarding deadline for motion for attorney’s 

fees.’ . . . 45 days prior to the date on which [California Rules of Court, rule] 3.1702(c) 

bars the instant motion. What is more, [plaintiffs’ counsel] held a conference with his 

staff on October 18, 2012 regarding a motion [for] attorney’s fees. And, 5 months 

earlier, on May 14, 2012, [he] held a conference with his staff about how to proceed with 

costs, and the next day [a paralegal] began drafting (a) a motion for attorney’s fees, and 

(b) a motion for costs.” In total, plaintiffs’ counsel claimed “36.5 hours ($4,751) related 

to preparing a motion for attorney’s fees and researching the time bar to filing the 
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motion.” Thus, defendants argued that plaintiffs’ counsel was unable to establish good 

cause to support an extension of time to bring a motion for attorney fees. (Calif. Rules of 

Court, rule 3.1702(d).) 

 On March 27, 2013, the trial court denied the motion for attorney fees, stating: 

“Contrary to moving party’s suggestion, this Court, on February 5, 2013, at the hearing 

on defendant’s motion to tax costs, did not simply ‘request’ moving party to file a 

motion. Rather the Court specifically stated that a noticed motion was required. The 

Court further advised the parties at that time that it was not ruling on whether any such 

motion could be properly and timely filed. [¶] “[California Rules of Court, rule] 3.1702 

allows the Court to extend the time for filing a motion for attorney fees ‘for good cause 

shown.’ Assuming that rule applies, here moving party has failed to establish good cause 

for the belated filing of this motion. [Code of Civil Procedure] Section 

1033.5[, subdivision] (c)(5) could not be any clearer in requiring a noticed motion when 

seeking fees based on a contract. Counsel previously filed a motion for pre-judgment 

attorney’s fees reflecting his awareness of the requirement for a noticed motion. 

[California Rules of Court, rule] 3.1702(c) also could not be any clearer. Moving party’s 

counsel’s vague reference to prior experience that somehow led him to conclude that 

attorney fees on appeal were properly sought by way of a cost bill is insufficient to 

establish good cause. For the same reasons, moving party has failed to establish 

inadvertence or excusable neglect under Code of Civil Procedure Section 473.” 
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II. DISCUSSION 

 Plaintiffs challenge the trial court’s ruling denying their motion for attorney fees 

contending the trial court (1) abused its discretion in concluding that they failed to 

comply with the timeline established in California Rules of Court, rule 3.1702; (2) led 

them to believe that it had extended the time for such compliance; and (3) abused its 

discretion in refusing to grant relief under section 473, subdivision (b). 

 A. A Timely Motion for Attorney Fees Is Required and the Trial Court 

Lacks Discretion to Disregard Noncompliance 

 Code of Civil Procedure section 1033.5, subdivision (a)(10), permits an award of 

attorney fees as an item of costs when authorized by contract (subd. (a)(10)(A)), statute 

(subd. (a)(10)(B)), or law (subd. (a)(10)(C)). Subdivision (c)(5) of section 1033.5 further 

provides that attorney fees awarded under Civil Code section 1717 fall within the scope 

of section 1033.5, subdivision (a)(10)(A), and thus “shall be fixed either upon a noticed 

motion or upon entry of a default judgment, unless otherwise provided by stipulation of 

the parties.” (Code Civ. Proc., § 1033.5, subd. (c)(5), italics added.) The Legislature 

enacted the relevant portions of section 1033.5, subdivision (c)(5) to clarify that the 

proper method to recover contractual attorney fees is “as an item of costs awarded upon 

noticed motion,” rather than as an element of damages pleaded in the complaint. (Chinn 

v. KMR Property Management (2008) 166 Cal.App.4th 175, 194.) 

 It is relevant here to note the Legislature’s comments accompanying its 1990 

amendments to section 1033.5: “‘The Legislature finds and declares that there is great 

uncertainty as to the procedure to be followed in awarding attorney’s fees where 
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entitlement thereto is provided by contract to the prevailing party. It is the intent of the 

Legislature in enacting this act to confirm that these attorney’s fees are costs which are to 

be awarded only upon noticed motion, except where the parties stipulate otherwise or 

judgment is entered by default. It is further the intent of the Legislature to vest the 

Judicial Council with the discretion provided in Section 1034 of the Code of Civil 

Procedure to adopt procedural guidelines establishing the time for the hearing of these 

motions . . . .’ (Stats. 1990, ch. 804, § 2.)” (Bankes v. Lucas (1992) 9 Cal.App.4th 365, 

371 [untimely motion for attorney fees resulted in reversal of attorney fee award on 

appeal]; italics added.) 

 Thus, plaintiffs were required to file a noticed motion for attorney fees, and were 

further required by California Rules of Court to do so “within the time for serving and 

filing the memorandum of costs” (Cal. Rules of Court, rule 3.1702(c)(1)), specifically 

“[w]ithin 40 days after the clerk sends notice of issuance of the remittitur” (Cal. Rules of 

Court, rule 8.278(c)(1)). They did not do so, and contrary to plaintiffs’ claim, the trial 

court lacks discretion to disregard their noncompliance, even if defendants are not 

prejudiced. (Russell v. Trans Pacific Group (1993) 19 Cal.App.4th 1717, 1726-1730 

(Russell).) 

 “Nevertheless, the mandatory nature of the procedural requirements does not mean 

that the trial court is deprived of jurisdiction to grant relief under section 473 . . . upon a 

proper showing of mistake, inadvertence, surprise, or excusable neglect. [Citations.] We 

find nothing in the 1990 legislation that would alter the nonjurisdictional nature of the 

mandatory procedural steps for claiming costs.” (Russell, supra, 19 Cal.App.4th at pp. 
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1728-1729, fn. omitted.) Accordingly, we turn to the trial court’s denial of relief under 

section 473. 

 B. No Abuse of Discretion in Denying Relief 

 As indicated, plaintiffs moved for relief under section 473 assuming there was a 

default under the 40-day rule and there was no substantial compliance with it. (§ 473, 

subd. (b).) Plaintiffs contend the trial court abused its discretion in denying relief 

because their counsel “declared that it was his understanding that an attorney’s fee award 

under . . . [section] 1033.5 did not require a noticed motion,” that “the trial court was 

either requesting a noticed motion . . . or that the trial court was exercising its discretion 

to extend the time in which to file a motion for attorney’s fees.” We conclude plaintiffs 

fail to show the trial court abused its discretion in refusing relief under the standards of 

section 473. 

 Section 473 permits the trial court to grant relief upon a showing of excusable 

neglect, mistake, inadvertence, or surprise. The determination of a section 473 motion 

lies in the trial court’s discretion. (Russell, supra, 19 Cal.App.4th at p. 1729.) Here, 

plaintiffs’ argument in favor of relief was based on their counsel’s “understanding” that 

the law did not require a separate motion for attorney fees, that the trial court was the one 

that required such motion, and that the trial court extended the time for filing such 

motion. As for counsel’s “understanding” that no separate motion for attorney fees was 

necessary, ignorance of the law is no excuse. (Robbins v. Los Angeles Unified School 

Dist. (1992) 3 Cal.App.4th 313, 319 [“‘Ignorance of the law coupled with negligence in 

ascertaining it will certainly sustain a finding denying relief’”].) As stated above, 
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compliance with the procedural requirements of section 1033.5, subdivision (c)(5), and 

California Rules of Court, rules 3.1702(c)(1) and 8.278(c)(1), is mandatory, and the trial 

court lacks discretion to disregard their noncompliance, even if defendants are not 

prejudiced. (Russell, supra, 19 Cal.App.4th at pp. 1726-1729.) Moreover, we have 

reviewed the transcript and conclude that the trial court never authorized an extension of 

time for plaintiffs to file their motion for attorney fees. 

 Plaintiffs failed to make a proper showing for section 473 relief and have failed to 

show that the trial court abused its discretion in denying such relief. 

III. DISPOSITION 

 The judgment is affirmed. Defendants and respondents shall recover their costs on 

appeal. 

 NOT TO BE PUBLISHED IN OFFICIAL REPORTS 

 HOLLENHORST 

 J. 

We concur: 

 RAMIREZ 

 P.J. 

 RICHLI 

 J.