1 Filed 12/3/14 Van Loon v. Winchester-Wesselink CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 APPELL ATE 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 Rive rside County. Sharon J. Waters, Judge. Affirmed. Lizarraga Law Firm, Frank J. Lizarraga, J r., and Justin M. Crane for Plaintiffs and Appellants. Burkhalter Kessler Clement & George, Da niel J. Kessler and Amber M. Sanchez for Defendants and Respondents David T hornton, Leo Wesselink, and Cornelia Wesselink. Law Offices of Carl Pentis and Carl J. Pentis for Defendant and Respondent Winchester-Wesselink, LLC.2 Plaintiffs and appellants Richard and Di anne 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 1033.5 1 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 Thor nton, Leo Wesselink, and Cornelia Wesselink 2 were on notice and not prejudiced by the lack of an accompanying motion for attorney f ees. Alternatively, plainti ffs fault the trial court for leading them to believe that the time for filing the motio n had been exte nded, 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 opera tion of Winchester-Wesselink, LLC, a cheese company. Judgment was entere d 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. wa s named as a defe ndant; however, on February 2, 2010, he died. On Septem ber 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.3 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 re mittitur 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 cost s, identifying other costs as attorney fees pursuant to s ection 1033.5, subdivision (a), in the amount of $160,535.55. Defendants moved to strike/tax costs, a nd 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 objec ted, arguing that the issue of attorney fees is separate from the issue of costs. The court agreed with defendants’ counsel and indicated that it n eeded further briefing, i.e., a “supplemental declaration . . . with appropriate documentation of all costs paid for reporters’ transcripts . . . .” The matter was continued to Februa ry 20, 2013, wherein costs we re awarded in an agreedupon amount. On February 21, 2013, plai ntiffs filed their motion for attorney fees, noting that it was being brought “after Plaintiffs timely file d their Memorandum of Costs on Appeal,” because the trial court had “stated that it prefer s a noticed motion to fix attorney’s fees.” According to plaintiffs, the court’s statemen t of preference amounted to an instruction that “extended the time for Pl aintiffs’ to file their Motio n for Attorney’s Fees.” Nonetheless, out of an abundan ce of caution, plaintiffs al so attached their attorney’s declaration pursuant to secti on 473, subdivision (b). Counsel explained in the motion that if the motion was deemed to be untim ely, then it was “due to the ‘mistake, inadvertence, surprise, or excusable neglect’ of Plaintiffs[’] legal counsel.” He added, in4 his declaration, that “[p]ursuan t 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 atto rney 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’ c ounsel’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 thei r attorney fees pursuan t to section 1033.5 and California Rules of Court, rule 3.1702, after obtaining judgment in their favor. At that time, plaintiffs’ memoran dum of costs noted that a moti on for attorney fees was filed concurrently. Defendants further pointed out that “the present motion includes a declaration from [plaintiffs’ counsel] that ve rifies the time and charges requested. Amongst those time and charge entries on October 19, [2012, ] is the following description of work . . . : ‘l egal research regarding dead line for motion for attorney’s fees.’ . . . 45 days prior to the date on whic h [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 rega rding 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 to tal, plaintiffs’ counsel claime d “36.5 hours ($4,751) related to preparing a motion for atto rney’s fees and researchin g the time bar to filing the5 motion.” Thus, defendants argued that plai ntiffs’ counsel was unable to establish good cause to support an extension of time to bring a motion for attorney f ees. (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 sugg estion, this Court, on Februa ry 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 stat ed that a noticed motion was required. The Court further advised the parties at that tim e 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 filin g a motion for attorney fees ‘for good cause shown.’ Assuming that rule applies, here m oving 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 hi s awareness of the requirement for a noticed motion. [California Rules of Court, rule] 3.1702(c) al so 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 sou ght by way of a cost b ill 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.”6 II. DISCUSSION Plaintiffs challenge the trial court’s ru ling denying their motion for attorney fees contending the trial court (1) abused its disc retion in concluding that they failed to comply with the timelin e established in California Rules of Court, rule 3.1702; (2) led them to believe that it had extended the tim e for such compliance; and (3) abused its discretion in refusing to grant reli ef 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 se ction 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 10 33.5, 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 Le gislature’s comments accompanying its 1990 amendments to section 1033.5: “‘The Legislature finds and de clares that there is great uncertainty as to the proced ure to be followed in awar ding attorney’s fees where7 entitlement thereto is provi ded by contract to the prevailing party. It is the intent of the Legislature in enacting th is 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 furt her 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 es tablishing the time for the hearing of these motions . . . .’ (Stats. 199 0, ch. 804, § 2.)” ( Bankes v. Lucas (1992) 9 Cal.App.4th 365, 371 [untimely motion for attorn ey 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 Cour t to do so “within the time for serving and filing the memorandum of cost s” (Cal. Rules of Court, ru le 3.1702(c)(1)), specifically “[w]ithin 40 days after the cler k 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 no ncompliance, 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 jurisdicti on to grant relief under section 473 . . . upon a proper showing of mistake, ina dvertence, surprise, or excusabl e neglect. [Citations.] We find nothing in the 1990 legisla tion that would alter the nonjurisdictional nature of the mandatory procedural step s for claiming costs.” ( Russell , supra , 19 Cal.App.4th at pp.8 1728-1729, fn. omitted.) Accordi ngly, we turn to the trial c ourt’s denial of relief under section 473. B. No Abuse of Disc retion in Denying Relief As indicated, plaintiffs moved for relie f 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 c ourt 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 fo r attorney’s fees.” We conclude plaintiffs fail to show the trial court abused its discre tion 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 ba sed on their counsel’s “understanding” that the law did not require a separa te motion for attorney fees, th at the trial court was the one that required such motion, and that the tr ial court extended the time for filing such motion. As for counsel’s “understanding” that no separate motion for attorney fees was necessary, ignorance of th e law is no excuse. ( Robbins v. Los Angeles Unified School Dist. (1992) 3 Cal.App.4th 313, 319 [“‘Ignorance of the law coupled w ith negligence in ascertaining it will certainly sustain a findi ng denying relief’”].) As stated above,9 compliance with the procedural requirement s 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 no ncompliance, 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 th eir motion for attorney fees. Plaintiffs failed to make a proper showin g for section 473 relie f and have failed to show that the trial court abused its discretion in denying such relief. III. DISPOSITION The judgment is affirmed. Defendants a nd respondents shall recover their costs on appeal. NOT TO BE PUBLISHED IN OFFICIAL REPORTS

HOLLENHORST J. We concur:

RAMIREZ P.J. RICHLI J.