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Court of Appeal:
Clock Starts at Issuance of Remittitur for Request for Fees as Costs on Appeal
Opinion Says Date of Entry on Record Starts 40-Day Time Limit for Motion; Requestor Not Entitled to Statutory Two-Day Extension for Documents Served Electronically
By a MetNews Staff Writer
The 40-day time limit set forth in the California Rules of Court for seeking attorney fees as costs on appeal begins to run when the remittitur is issued, and a two-day extension, applicable when documents are served by electronic means, does not apply, the Fifth District Court of Appeal held yesterday in a case of first impression.
The applicable rule references “issuance” and not “service” as the triggering event, it pointed out.
At issue is California Rule of Court 8.278, which provides that “[e]xcept as provided in this rule or by statute, the party prevailing in the Court of Appeal in a civil case…is entitled to costs on appeal” and “[w]ithin 40 days after issuance of the remittitur, a party claiming costs awarded by a reviewing court must serve and file in the superior court a verified memorandum of costs….”
Civil Restraining Order
The question arose after a request for a civil harassment restraining order was filed, under Code of Civil Procedure §527.6, by John Wash against the wife of his deceased brother, Maria Banda-Wash. After the trial court denied his request and reserved the issue of attorney fees, the Fifth District on Nov. 19. 2020, affirmed the denial and awarded costs on appeal to Banda-Wash.
On March 10, 2021, the California Supreme Court denied Wash’s petition for review. The following day, a court clerk with the Fifth District entered the denial and sent the parties a copy of the remittitur, dated March, 11, 2021.
A copy was sent to Banda-Wash’s attorney via email and to Wash, who represented himself in the action, by mail. The Fresno County Superior Court’s receipt of the remittitur is confirmed by the filing of its copy at 11:57 a.m. on March 11, 2021.
Banda-Wash filed a motion requesting attorney fees, and an accompanying memorandum of costs, on April 22, 2021, 42 days after the date of the remittitur. Wash objected to the request, saying the memorandum of costs was filed after the expiration of the 40-day period outlined in Rule 8.278.
Fresno Superior Court Judge Mark E. Cullers found that the deadline was subject to an extension under Code of Civil Procedure §1010.6(a)(3)(B). It provides, with stated exceptions, that “[a]ny period of notice, or any right or duty to do any act or make any response within any period or on a date certain after the service of the document, which time period or date is prescribed by statute or rule of court, shall be extended after service by electronic means by two court days….”
Cullers awarded Banda-Wash $16,258.50 in fees as an item of cost.
In an opinion authored by Justice M. Bruce Smith, and joined in by Acting Presiding Justice Bert Levy and Justice Jennifer R.S. Detjen, the Fifth District vacated the award, finding that the 40-day period had expired.
In an unpublished portion of the opinion, the court found that Rule 3.1702(d) affords a trial judge discretion, for good cause, to extend the deadline for a request for fees and remanded for the court to decide whether to exercise such authority in this case.
Costs on Appeal
Smith said:
“Our opinion affirming the trial court’s denial of John’s request for a restraining order stated Maria ‘shall recover her costs on appeal.’….The opinion did not address, one way or the other, whether Maria should recover the attorney fees she incurred in the appeal. As a result, Maria’s request for attorney fees is subject to Rule 8.278(d)(2), which provides: ‘Unless the court orders otherwise, an award of costs [on appeal] neither includes attorney’s fees on appeal nor precludes a party from seeking them under rule 3.1702.’ ”
He noted that attorney fees are recoverable as costs only where expressly authorized by contract or statute and opined:
“Here, the statutory basis for Maria’s recovery of attorney fees is subdivision (s) of section 527.6, which states in full: ‘The prevailing party in an action brought pursuant to this section may be awarded court costs and attorney’s fees, if any.’….
‘As a general rule, attorney fee statutes are interpreted to apply to attorney fees on appeal unless the statute specifically provides otherwise….The text of section 527.6 does not provide otherwise.
The jurist remarked that “we interpret the word ‘action’ in section 527.6, subdivision (s)’s phrase ‘in an action’ to include both trial court and appellate proceedings.”
Service Extension
Banda-Wash acknowledged that the remittitur had been sent to her counsel by email and asserted that the motion for fees was timely under §1010.6(a)(3)(B). Unpersuaded, Smith remarked:
“Rule 8.278 does not define ‘issuance.’ However, Rule 8.272, which addresses remittiturs, provides insight into that term’s meaning….Rule 8.272(d)(1)…provides: ‘The remittitur is deemed issued when the clerk/executive officer enters it in the record. The clerk/executive officer must immediately send the parties notice of issuance of the remittitur, showing the date of entry.’ (Italics added.) Thus, the provision’s action verbs are ‘enters’ and ‘send,’ not ‘serve.’ ”
Considering the rules together, he said that “[s]ubstituting Rule 8.272(d)(1)’s description of when a remittitur is ‘deemed issued’ for the word ‘issuance’ in Rule 8.278(c)(1) causes the latter provision to read: ‘Within 40 days after [the clerk/executive officer enters] the remittitur [in the record], a party claiming costs awarded by a reviewing court must serve and file in the superior court a verified memorandum of costs under rule 3.1700.’ ”
Under these circumstances, he declared:
“We interpret Rule 8.278(c)(1) to mean the 40-day period begins to run when the remittitur is entered into the record. Furthermore, we interpret the word ‘service’ used in section 1010.6, subdivision (a)(3)(B) to mean something other than the entry of a remittitur into the record. Therefore, the two-day extension for documents served electronically does not apply to the 40-day period specified by Rule 8.278(c)(1). Applying this interpretation to the facts of this case, the 40-day period expired on April 20, 2021, and, as a result, Maria’s cost memorandum and attorney fees motion are untimely….”
The case is Wash v. Banda-Wash, 2025 S.O.S. 327.
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