Order Granting a Belated Fee Motion Affirmed on Appeal Due to Appellant's Inadequate Record

Timothy Kowal, Esq.
February 17, 2021

Most attorneys have missed a deadline at some point in their careers, or have awoken in the night worrying about it. The attorney in this recent case, Ojeda v. Azulay (D2d3 Feb. 10, 2021) No. B302440 (unpublished), missed a deadline to file a fee motion. But he owned up to the mistake, acknowledging it in his reply brief, explaining he had miscalculated the deadline under Code of Civil Procedure section 1013. The trial court granted his motion despite its untimeliness.

The Second District affirmed. Although the motion was untimely, the deadline to file a fee motion is not jurisdictional. That deadline may be extended by stipulation or by the trial judge for good cause under California Rules of Court, rule 3.1702(b)(2). "An honest mistake of law may constitute good cause for relief depending on the reasonableness of the misconception. (Robinson v. U-Haul Co. of California (2016) 4 Cal.App.5th 304, 327-328.) We review a trial court's finding of good cause for an abuse of discretion, and a litigant challenging that finding has an "uphill battle." (Id. at p. 326.)"

But, appellant urged, the trial court made no finding of good cause! Without a finding of good cause, and without a stipulation, there can be no extension under the rule!

Appellants often make technical arguments like this on appeal. But appellants often fail to meet their own technical requirements on appeal to establish them. Here, appellant did not appear at the hearing and did not otherwise argue against the moving party's showing of good faith mistake. Appellant also failed to provide a record of what happened at the hearing.

"Given the standard of review—abuse of discretion—that failure is fatal to this issue." The appellant "bears the burden of affirmatively showing prejudicial error, and, to satisfy this burden, had to provide an adequate record to assess error. (See, e.g., Nielsen v. Gibson (2009) 178 Cal.App.4th 318, 324.)"

What appellant should have done: Appellant needed to make a record to establish any extension was not supported by good cause. Appellant might have done this by requesting leave to file a sur-reply to address the moving party's proffer of good cause, made for the first time in its reply brief. Appellant ought to have pointed out to the trial court that a mistake of law ordinarily is not excusable unless it is a complex and debatable point, and here, the interpretation of section 1013 ordinarily is not. And of course, appellant needed to have attended oral argument with a court reporter, so that the trial court's reasoning and findings on the point, if any, would be made part of the record.

Failing any of that, the Court of Appeal will nearly always hold an implied finding was made, and that it was supported by those portions of the record appellant failed to furnish on appeal.

Tim Kowal helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes a newsletter of appellate tips for trial attorneys at www.tvalaw.com/articles. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.