Case Number: BC485428 Hearing Date: January 17, 2018 Dept: 34

SUBJECT: Motion for Attorney Fees on Appeal

Moving Party: Defendant/Cross-Complainant Igor Daza

Resp. Party: Cross-Complainant/Cross-Defendant Los Angeles Community College District (“LACCD”)

The motion for attorney’s fees on appeal is DENIED because it is untimely.

BACKGROUND:

Plaintiff commenced this action on 5/25/12. After the Court sustained a demurrer to the complaint, plaintiff filed a first amended complaint on 11/9/12 against defendants for: (1) negligence; (2) injuries to employee within the scope of employment; (3) negligent supervision; (4) negligent hiring/retention; (5) IIED; (6) sexual battery; (7) battery; (8) assault; (9) sexual harassment; (10) gender violence; (11) false imprisonment; (12) negligent sexual abuse; and (13) Civil Code section 51.7. Plaintiff was a student at a college within defendant LACCD’s district and alleges that she was sexually assaulted by defendant Igor Daza, a guidance counselor and advisor employed by LACCD.

Defendant Daza had filed a cross-complaint against LACCD. Daza filed a third amended cross-complaint (“TACC”) on 3/6/14. The third amended complaint asserts causes of action for statutory defense, statutory indemnity, and petition for writ of mandate. LACCD filed a demurrer and motion to strike as to the TACC, which the Court heard on 4/22/14. The Court granted the motion to strike the entire TACC because Daza failed to file the TACC within the time allowed in the 5/24/13 order. Because it was a motion to strike, which was limited to the pleadings or judicially noticed items, the Court declined to consider extrinsic facts or evidence in ruling on the motion. The Court then dismissed the cross-action.

Plaintiff dismissed her complaint with prejudice on 5/27/14.

On 7/17/14, the Court granted Daza’s motion to set aside dismissal. The operative third amended complaint was filed on 7/17/14 and asserts causes of action for: (1) statutory defense; (2) statutory indemnity; and (3) petition for writ of mandate.

On 9/22/14, the Court overruled LACCD’s demurrer to Daza’s TACC. On 10/9/14, the Court, on its own motion, set a hearing for reconsideration of its 9/22/14 ruling based on an opinion issued by the Court of Appeal after the 9/22/14 ruling. On 11/12/14, the Court sustained the demurrer without leave to amend. Daza thereafter appealed.

A remittitur was issued on 7/15/16. The Court of Appeal reversed the Court’s ruling sustaining the demurrer with leave to amend.

ANALYSIS:

Daza moves for an award of his appellate attorney fees under Code of Civil Procedure sections 1033.5 and 1021.5. Section 1033.5 allows a prevailing party to recover reasonable attorney fees so long as they are authorized by contract, statute, or law. (Id. at subd. (a)(10)(A)–(C).) Daza argues that section 1021.5 provides the statutory authority for his recovery of attorney fees in this case. That section provides:

Upon motion, a court may award attorneys’ fees to a successful party against one or more opposing parties in any action which has resulted in the enforcement of an important right affecting the public interest if: (a) a significant benefit, whether pecuniary or nonpecuniary, has been conferred on the general public or a large class of persons, (b) the necessity and financial burden of private enforcement, or of enforcement by one public entity against another public entity, are such as to make the award appropriate, and (c) such fees should not in the interest of justice be paid out of the recovery, if any. With respect to actions involving public entities, this section applies to allowances against, but not in favor of, public entities, and no claim shall be required to be filed therefor, unless one or more successful parties and one or more opposing parties are public entities, in which case no claim shall be required to be filed therefor under Part 3 (commencing with Section 900) of Division 3.6 of Title 1 of the Government Code.

(Code Civ. Proc. § 1021.5.)

Daza argues that he is entitled to fees under section 1021.5 in part because his appellate victory conferred a significant benefit on the general public or a large class of persons. (Motion, p. 6:8–12.) As a public employee, Daza demanded that LACCD defend him in the underlying action. LACCD declined on the ground that they were not required to defend him because the sexual harassment alleged by plaintiff Goodwin fell outside the scope of Daza’s employment. (See Gov. Code § 995.) Daza paid for his own defense and subsequently brought a cross-complaint against LACCD to recover his costs under Government Code § 996.4. This Court eventually sustained LACCD’s demurrer, concluding that LACCD was not required to defend Daza because the allegations of sexual harassment fell outside the scope of his employment. Daza appealed this decision and the Court of Appeal reversed this Court’s decision sustaining the demurrer. (Smith Decl. ¶ 3, Exh. 1.) The Court of Appeal concluded that “[n]othing in the language of section 996.4 limits Daza’s ability to present evidence he was acting within the scope of employment, including by disproving the allegations in the main lawsuit.” (Id. at p. 11.) In other words, a public entity could not avoid defending an employee simply on the grounds that a plaintiff had alleged conduct that falls outside of the scope of that employee’s employment: “the determination of whether an employee acted within the scope of employment is factual and cannot be limited to the third party’s allegations in the underlying lawsuit when the employee denies those allegations, and the employee’s version of events would demonstrate acts within the scope of employment.” (Id. at p. 3.) Daza alleges that he is entitled to attorney fees because the Court of Appeal’s decision conferred a significant benefit on all of California’s public employees by serving “to stabilize the relationship between the public employer and its employees, providing the employee some measure of assurance that the employee will not be required to bear the extraordinary expenses of litigation when he or she is simply performing his or her job of providing services to the public.” (Motion, pp. 7–8:22-23, 1–2.)

LACCD argues that Daza is not entitled to recover attorney fees for three primary reasons. First, his motion must be denied because it is untimely. (Opposition, p. 9:15.) Second, Daza is not a “successful party” within the meaning of section 1021.5. (Id. at p. 10:1–2.) And third, this case does not fall within the scope of section 1021.5. (Id. at p. 12:4–6.)

Taking these issues in reverse order, the Court finds that this case does fall within the scope of section 1021.5, and that Daza was a successful party in his appeal. However, his motion for attorney’s fees must be denied because it was not timely.

Daza’s Motion is Not Timely

Daza argues that the instant motion is governed by California Rule of Court rule 3.1702(b)(1) and not, as LACCD argues, by 3.1702(c)(1).) (Reply, p.3:2–4.) Rule 3.1702 subsection (b) provides the time for filing a motion for attorney’s fees before a trial court judgment. It provides that “[a] notice of motion to claim attorney’s fees for services up to and including the rendition of judgment in the trial court — including attorney’s fees on an appeal before the rendition of judgment in the trial court — must be served and filed within the time for filing a notice of appeal under rules 8.104 and 8.108 in an unlimited civil case.” (Cal. Rules of Court rule 3.1702, subd. (b).) By its clear language, rule 3.1702 applies to interlocutory appeals, such as an appeal of a trial court’s decision regarding whether or not to certify a class action. In contrast, Daza appealed from this Court’s final judgment: the Court sustained LACCD’s demurrer to Daza’s Third-Amended Cross-Complaint and entered judgment in favor of LACCD. (See Judgment of 05/25/12.) Although Daza succeeded on his appeal, it was nevertheless an appeal from a final judgment. As a result, Rule 3.1702(b)(1) is inapplicable.

This motion is governed by Rule 3.1702(c)(1), which provides that “[a] notice of motion to claim attorney’s fees on appeal — other than the attorney’s fees on appeal claimed under (b) — under a statute or contract requiring the court to determine entitlement to the fees, the amount of the fees, or both, must be served and filed within the time for serving and filing the memorandum of costs under rule 8.278(c)(1) in an unlimited case.” (Cal. Rules of Court, rule 3.1702(c)(1). Rule 8.278(c)(1) requires the memorandum of costs to be filed in the superior court “[w]ithin 40 days after issuance of the remittitur.” (Id. at rule 8.278(c)(1).) Here, the Court of Appeal issued the remittitur on 07/15/16. Daza filed his motion for attorney fees 522 days later, on 12/19/17. As a result, Daza’s motion is not timely.

Daza further argues that, even if the motion is untimely, the trial court may grant an extension. Daza cites to Robinson v. U-Hal Company of California (2016) 4 Cal.App.5th 304, 326-328 for the proposition that an “attorney’s honest mistake re timeliness and lack of prejudice constitutes good cause” for granting an extension of time to file a motion for attorney’s fees. (Reply, p. 4:1-9.) While counsel’s citation in correct, there has been no request by Daza for an extension of time and – even after LACCD flagged this issue in its opposition – no declaration from counsel accompanying its reply showing good cause for this 522 day delay.

Because the Court finds that the motion for attorney’s fees was untimely – and there was no request for an extension of time or declaration from which the Court could determine good cause for granting such an extension – the Court need not determine whether the fees requested were reasonable or whether a multiplier should be granted to the lodestar fees requested.

The Court DENIES the motion for attorney’s fees.