Filed 6/9/20 Ruiz v. NDS Default Services 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 APPELLATE DISTRICT

DIVISION TWO

GLORIA RUIZ,

Plaintiff and Appellant,

v.

NDS DEFAULT SERVICES, LLC,

Defendant and Respondent.

E072061

(Super.Ct.No. CIVDS1508170)

OPINION

APPEAL from the Superior Court of San Bernardino County. Wilfred J. Schneider, Jr. Affirmed.

Law Office of West & Associates and Al West for Plaintiff and Appellant.

Akerman LLP, Preston K. Ascherin and Parisa Jassim for Defendant and Respondent.

Appellant, Gloria Ruiz, brought a motion in the trial court seeking prevailing party attorney fees. She brought her motion 86 days after receiving notice of entry of judgment. The trial court denied her motion because the California Rules of Court require such motions be filed within 60 days after receiving notice of entry of judgment.

Ruiz argues the 60-day deadline applies only in cases where one party has filed a notice of appeal and in all other cases a 180-day deadline triggered by the entry of judgment applies. Ruiz misreads the court rule, which in plain terms requires a prevailing party to request attorney fees no later than 60 days after notice of entry of judgment. The 180-day deadline applies only in cases where the party requesting attorney fees did not receive notice of entry of judgment. Because it is uncontested that Ruiz received notice and her motion came after the application 60-day period, we affirm the trial court order.

I

FACTS

Appellant, Gloria Ruiz, obtained a judgment against respondent, NDS Default Services, LLC, in a wrongful foreclosure and wrongful unlawful detainer action. The trial court entered judgment on July 3, 2018, and respondents served notice of entry of the judgment 20 days later, on July 23, 2018.

Eighty-six days later, Ruiz filed a motion for prevailing party attorney fees. NDS objected that a motion for attorney fees must be filed within 60 days of notice of entry of judgment. The trial court agreed and denied Ruiz’s motion.

Ruiz filed a timely notice of appeal.

II

ANALYSIS

Ruiz argues the trial court applied the wrong deadline on filing a motion for attorney fees. This is a legal question we review de novo. (Carpenter v. Jack in the Box Corp. (2007) 151 Cal.App.4th 454, 460.) We agree with the trial court’s analysis.

California Rules of Court, rule 3.1702(b) requires a party seeking attorney fees to file a motion within the time specified for filing a notice of appeal under California Rules of Court, rule 8.104 (Rule 8.104) and rule 8.108 (Rule 8.108) in unlimited civil cases.

Rule 8.104 sets out the deadlines for filing a notice of appeal, subject to certain extensions set out in Rule 8.108, which are not at issue in this case. It says a party seeking to appeal must file a notice of appeal by the earliest of three dates:

“(A) 60 days after the superior court clerk serves on the party filing the notice of appeal a document entitled ‘Notice of Entry’ of judgment or a filed-endorsed copy of the judgment, showing the date either was served;

“(B) 60 days after the party filing the notice of appeal serves or is served by a party with a document entitled ‘Notice of Entry’ of judgment or a filed-endorsed copy of the judgment, accompanied by proof of service; or

“(C) 180 days after entry of judgment.”

Rule 3.1702(b) incorporates as to a party seeking to file a motion for attorney fees the same deadlines applicable under Rule 8.104 to a party seeking to file a notice of appeal. That means a party seeking attorney fees must file a motion within the earliest of 60 days after the superior court clerk serves them with notice of entry of judgement, or 60 days after either party serves on the other party a notice of entry of judgment, or 180 days after entry of judgment. Since it is uncontested respondents served Ruiz with a notice of entry of judgment on July 23, 2018, at the latest Ruiz was required to file her motion for attorney fees 60 days after that date. Since it is uncontested Ruiz filed her motion for attorney fees later than that, the trial court correctly denied the motion.

Ruiz argues that the 180-day period in subpart (a)(1)(C) of Rule 8.104 applies because the time limits in subparts (A) and (B) apply only where one party has filed a notice of appeal. That is a misreading of the rule. Rule 3.1702(b) controls when a party must file a motion for attorney fees. It incorporates the deadlines for filing a notice of appeal from Rule 8.104, but not the part of the Rule 8.104 making the deadlines applicable to the party filing a notice of appeal. (See Sanabria v. Embrey (2001) 92 Cal.App.4th 422, 429 [applying equivalent predecessor rules].)

Ruiz’s proposed reading of Rule 3.1702(b) simply makes no sense. The rule incorporates the “time periods” in Rule 8.104, not any other portion of that rule. The language in Rule 8.104 referring to the party filing a notice of appeal is there to identify which party must have notice. The party who must have notice of the deadline for seeking attorney fees is the party filing a motion for attorney fees. It’s irrelevant whether any party is pursuing an appeal.

We therefore conclude the trial court correctly denied Ruiz’s motion for attorney fees as untimely.

III

DISPOSITION

We affirm the trial court order denying Ruiz’s motion for attorney fees. NDS Default Services, LLC is entitled to costs on appeal.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

SLOUGH

J.

We concur:

RAMIREZ

P. J.

RAPHAEL

J.