The trial court found the time limit imposed by rule 870.2(b) started to run when the amended rule became effective. On November 28, 1994, the trial court denied SOF's fee motion. On September 28, 1994, county filed an opposition to the motion in which it argued SOF's request for fees was untimely under rule 870.2(b). 3 SOF requested a total of $819,000 in attorney fees. On August 4, 1994, after an unsuccessful effort to reach an agreement as to its right to recover attorney fees and the amount of such fees, SOF filed a motion to recover its attorney fees under section 1021.5. The trial court's judgment was entered on July 2, 1993, and the clerk mailed the parties a file-stamped copy of the order on that date. SOF alleged the environmental impact report prepared by respondent County of San Diego (county) with respect to the plan amendment was defective and that the amendment was inconsistent with other provisions of county's general plan.Ī trial on the merits was conducted in March 1993 and the trial court issued a decision in SOF's favor in May 1993. In 1992 petitioner and appellant Save Our Forest and Ranchlands (SOF), a California corporation, filed a petition for a writ of mandate in which it challenged the validity of an amendment to the San Diego County general plan. Accordingly we reverse that order and remand for further proceedings. On the other hand, because the appellant moved for relief from default within six months after rule 870.2 was asserted by its adversary, the trial court erred in finding it had no power to consider the appellant's section 473 motion. The motion was untimely because the parties had 60 days in which to appeal the trial court's 1993 judgment and the motion for attorney fees was filed more than 60 days after the effective date of the amended version of rule 870.2(b). Thus in this case we affirm a trial court order denying the appellant's initial motion to recover attorney fees.
Importantly, we agree with appellant that the six-month period in which to seek relief under section 473 commences to run from the date on which a party's failure to meet the requirements of rule 870.2 is raised by an opponent or enforced by the trial court. However we also find any failure to meet the time limitation set forth in rule 870.2 is subject to relief under section 473.
In such cases the time in which to make a motion began running when the amended version of the rule became effective. While initially this limitation only applied to claims based on attorney fee provisions in contracts, by way of an amended version of the rule which became effective on January 1, 1994, this time limitation was also made applicable to statutory fee claims.Ĭontrary to the appellant's argument, we find the limitation imposed by rule 870.2(b) applies to all motions for attorney fees made after the effective date of the amendment, even where, as here, at the time the underlying trial court judgment was entered, no time limit governed the appellant's statutory claim to attorney fees. Under rule 870.2(b) a motion to recover attorney fees incurred in the trial court in civil cases must be filed within the period permitted for filing a notice of appeal from the trial court's judgment.
JUDGE WILLIAM S DATO CODE
In this case we are called upon to interpret and apply the provisions of California Rules of Court 1 rule 870.2(b), as recently amended, and Code of Civil Procedure 2 section 473. Mead, Deputy County Counsel, for Respondent. Sansone, Acting County Counsel, Diane Bardsley, Chief Deputy County Counsel, and Mark C. Crandall, San Diego, Michael Ray Harris, Los Angeles, Milberg, Weiss, Bershad, Hynes & Lerach, William S. COUNTY OF SAN DIEGO et al., Defendants and Respondents. SAVE OUR FOREST AND RANCHLANDS, Plaintiff and Appellant, v. Court of Appeal, Fourth District, Division 1, California.
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