Second District, Division 8 Remands In Procedural Nightmare Case.
Just to show you that procedure and facts may drive a matter--stay tuned for this one.
In New Star Realty, Inc. v. Park, Case No. B220602 (2d Dist., Div. 8 Nov. 18, 2010) (unpublished), defendant filed an attorney’s fees motion one day late, but sought relief to have it deemed timely filed under CCP § 473, after prevailing in a contract dispute with plaintiff where there was a contract with a fees clause. The trial court, however, granted fees to defendant in the amount of $25,410, incorrectly determining that the mail service extension applied to the fee motion which was tied to appeal periods that did not include the mail extension. Plaintiff appealed--because the fee motion was filed one day late from a procedural standpoint
Plaintiff, at least now, won a reversal and remand (but a hold-your-horses remand).
The appellate court did agree that the mail extension rationale utilized by the lower court did not work. However, section 473 does permit the lower court to excuse an untimely fee motion filing. (Russell v. Trans Pacific Group, 19 Cal.App.4th 1717, 1728 (1993); Ron Burns Construction Co., Inc. v. Moore, 184 Cal.App.4th 637, 643-646 (2010); Lee v. Wells Fargo Bank, 88 Cal.App.4th 1187, 1193 (2001).)
This meant the matter had to be remanded to the lower court to determine if good cause existed under section 473 to extend the fee motion filing or other basis existed to hear the fee motion one day late. So, defendant gets another chance, and plaintiff has to hold its breath on fee exposure.
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