Timeframe to file memorandum of costs begins when remittitur is entered into the record. . .

In a matter of first impression, the Fifth District held the 40-day period to file a memorandum of costs under Cal Rules of Court, rule 8.278(c)(1) [award of costs on appeal] begins to run when the remittitur is entered into the record, not when it is sent to the parties, and, as such, the two-day extension under CCP §1010.6(a)(3)(B) for documents electronically served does not apply to the 40-day period.

In 2017, John Wash filed a civil harassment restraining order under CCP §527.6 against Maria Banda-Wash, his neighbor who is also his brother's widow. The trial court denied John's request and reserved Maria's request for attorney's fees. John appealed, and the Fifth District affirmed the order denying John's request and awarded Maria her costs on appeal.

In December 2020, John filed a petition for review with the California Supreme Court. On March 10, 2021, the Supreme Court denied John's petition. On March 11, 2021, a deputy clerk of the Court of Appeal filed the Supreme Court's denial and sent a copy of the remittitur to the parties. According to the E-Notice signed by the deputy clerk, she notified the trial court and Maria's attorney by emailing a copy of the remittitur to their email addresses on March 11, 2021. The E-Notice also indicated she sent John a copy of the remittitur by mail.

Maria files her memorandum of costs two days late. . .
On April 22, 2021, Maria filed and served a memorandum of cost and a motion to determine and fix the amount of attorney fees awarded as an item of costs. The memorandum of costs requested a $390 appearance fee, and the motion requested $16,483.50 in attorney fees. Maria's motion and memorandum of costs on appeal were filed 42 days after the remittitur was issued.

On May 6, 2021, John filed with the trial court, among other things, an opposition and objection to Maria's notice and motion to determine and fix attorney fees. Specifically, John argued Maria's memorandum of costs was filed after the 40-day period in Cal Rules of Court, rule 8.278(c)(1) [award of costs on appeal] had expired.

In June 2021, Maria filed a reply, arguing the 40-day period was extended five days by operation of CCP §1013(a), because the remittitur was mailed to the parties. Later, on appeal, Maria's counsel acknowledged the remittitur had been sent to him by email and, therefore, asserted that, instead of the aforementioned five-day extension, Maria's requests were timely pursuant to the two-day extension under CCP §1010.6(a)(3)(B) for documents served electronically.

After a hearing, the trial court took the matter under submission. Two days later, the trial court filed a five-page order determining Maria was the prevailing party and was entitled to seek attorney fees as an item of costs. The trial court also concluded the 40-day deadline was subject to a five-day extension under CCP §1013(a) and, therefore, Maria's memorandum of costs was timely filed. The trial court (Fresno County's Cullers) awarded Maria $16,258.50 in attorney fees and $390 in costs. John appealed, but, in a partially published opinion, the Fifth District vacated the trial court's order and remanded the matter for further proceedings.

In the published part of its opinion, the panel first described the basis for Maria recovering costs on appeal. Per rule 8.278(a)(1), except as provided by the rule or statute, the prevailing party in a civil appeal is entitled to costs on appeal. Rule 8.278(a)(2) provides that a prevailing party includes "'the respondent if the Court of Appeal affirms the judgment without modification.'" The justices noted that Maria qualified as a prevailing party under rule 8.278(a)(2). As a result, in their prior opinion affirming John's appeal from the denial of his restraining order request, the justices stated that Maria "'shall recover her costs on appeal.'"

The justices next noted that attorney fees are recoverable as costs only where expressly authorized by contract or statute. Per CCP §527.6(s), "'[t]he prevailing party in an action brought pursuant to this section may be awarded court costs and attorney fees, if any.'" Noting that the general rule provides that attorney fee statutes apply to attorney fees on appeal unless the statute provides otherwise, the justices observed that CCP §527.6 does not provide otherwise. Additionally, the justices interpreted "action" in the statute to include both trial court and appellate proceedings. As such, the justices concluded that CCP §527.6 expressly authorizes the recovery of attorney fees incurred on appeal.

The justices next noted that a request for attorney fees on appeal is made subject to the 40-day period by rule 3.1702(c)(1) [memo of appellate fees/costs requested by litigant must be filed and served within 40 days after issuance of remittitur]. The justices further noted that although these timing provisions for filing of a memorandum of costs and motion claiming attorney fees are mandatory, they are not jurisdictional and, as such, may be extended.

40-day period begins to run when remittitur is entered into the record. . .
Turning to the central issue on appeal, the justices noted to decide whether Maria's requests were timely based on the two-day extension contained in CCP §1010.6(a)(3) requires them to interpret rule 8.278(c)(1). In a matter of first impression, the justices concluded the 40-day period to file a memorandum of costs under rule 8.278(c)(1) begins to run when the remittitur is entered into the record, not when it is sent to the parties, and, as such, the two-day extension under CCP §1010.6(a)(3)(B) for documents electronically served does not apply to the 40-day period. In reaching this conclusion, the justices noted that rule 8.278(c)(1) does not use the term "service" of the remittitur. Instead, the rule provides the prevailing party's memorandum of costs must be filed and served "'[w]ithin 40 days after issuance of the remittitur.'"

The justices concluded that "'issuance' and 'service' mean different things." First, since rule 8.278(c)(1) itself does not define "issuance," the justices turned to rule 8.272(d)(1) for guidance. That rule provides, "'The remittitur is deemed issued when the clerk/executive officer enters it in the record.'" Thus, this rule supports the conclusion that a remittitur is issued at the time the clerk/executive officer enters the remittitur in the record.

Second, the justices noted that materials discussing a change to an earlier version of rule 8.278(c)(1) supports their conclusion. The earlier version of rule 8.278(c)(1) provided "'Within 40 days after the clerk sends notice of 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 under rule 3.1700.'" In 2015, the Judicial Council circulated for comment a proposal to revise the italicized words. The invitation to comment provided, "'[R]ule 8.278 addresses costs on appeal. Subdivision (c)(1) establishes the timeframe within which a memorandum of costs must be filed. Currently, this provision requires that the memorandum be filed within 40 days after the clerk sends notice of issuance of the remittitur. However, because reviewing courts do not use a proof of service when sending the remittitur, parties do not have an easy way to determine when the remittitur was sent. This proposal would amend rule 8.278 to instead require the memorandum of costs to be filed within 40 days of the date of issuance of the remittitur. This date can easily be determined by the parties because it will be reflected on the docket and on the remittitur document itself.'" According to the justices, these materials further support the conclusion that the Judicial Council intended the 40-day period to be calculated from the date the remittitur was entered into the record.

And finally, the justices pointed out that the Judicial Council knows how to use the term "service" as the event starting a time period. For example, rule 3.1700(a)(1) provides in relevant part, "'A prevailing party who claims costs must serve and file a memorandum of costs within 15 days after the date of service of the notice of entry of judgment or dismissal by the clerk under…section 664.5 or the date of service of written notice of entry of judgment or dismissal, or within 180 days after entry of judgment, whichever is first.'" As such, the justices inferred that the Judicial Council recognized that starting a time period with the "issuance" of a document was different from using service as the starting date.

In so concluding, the justices rejected Maria's argument that a liberal interpretation of the rules should be applied to "'ensure the just and speedy determination of the proceedings they govern.'" To this point, the justices noted that a bright line rule is not inherently unjust and where a bright line rule may result in an unjust result, trial courts may use their discretion to extend the timeframe.

Nevertheless, trial court has discretion to grant Maria an extension. . .
In the unpublished part of the opinion, the justices held that the trial court has authority under rule 3.1700(b)(3) to grant Maria a discretionary two-day extension for filing and serving her memorandum of costs on appeal. Rule 3.1702(d) authorizes a trial judge to extend the time of filing a motion for attorney's fees for good cause. Because this rule does not expressly state that such an extension must be granted before the 40-day period expires, the justices concluded that such an extension may be granted after the 40-day period has expired and, as a result, is available to Maria. In so ruling, the justices rejected John's argument that a trial court's authority to grant extensions under rule 3.1702(d) does not apply to discretionary attorney's fees. Instead, the justices noted that the text of rule 3.1702(d) does not expressly state or imply that the authority to grant extensions is limited to mandatory awards of attorney fees. The justices further noted that a trial court may grant extensions on its own motion.

Despite this authority, the justices concluded they cannot infer that the trial court impliedly granted discretionary extensions under the circumstances of the case. First, Maria did not mention the court's discretionary authority to grant her extension in her moving and reply papers. Second, the trial court expressly stated that Maria's requests were timely based on the five-day extension for service by mail. And third, the trial court did not mention its discretionary authority to grant the extension. For these reasons, the justices noted that general rule requiring appellate courts to presume a trial court's order is correct does not apply under these circumstances.

Next, the justices concluded the trial court did not err in awarding attorney fees. In so concluding, the justices rejected John's argument that the trial court was under the mistaken belief that it was required to award attorney fees under CCP §527.6(s). Instead, the justices noted that "nothing in the order expressly stat[ed] or impl[ied] that the award of attorney fees was mandatory." The justices added that the fact the trial court cited a case involving discretionary attorney fees in its order further supports the conclusion that the trial court was not under an impression that it was required to award such fees.

Next, the panel held the trial court did not commit due process violation or abuse its discretion by cutting off or discontinuing oral argument at the hearing on August 3, 2022. As noted by the justices, "[a] right to a full hearing is recognized where required by statute and on 'critical pretrial matters.'" The justices then noted that a motion for attorney fees and motions to tax costs neither are critical pretrial matters nor motions that require hearing by statute. As a result, whether a hearing is held on these matters is to the trial court's discretion. The justices determined that the trial court did not abuse its discretion since it allowed John to present his argument concerning the missed deadlines and there was not evidence in the record that the trial court cut off John's argument.

The justices also concluded the trial court did not violate John's due process rights by failing to allow him to prevent testimony or to cross-examine Maria's attorney. The justices noted that John failed to comply with rule 3.1306, which requires a party seeking permission to introduce oral evidence to file a written statement stating the nature and extent of the evidence proposed to be introduced.

Lastly, the justices concluded that John did not demonstrate that the trial court failed to decide his motion to strike attorney fees or the issues raised in his motion. First, the issues presented in John's motion were decided based on the court's decision to award Maria attorney fees. And second, John did not present any authority suggesting the trial court was required to expressly set forth its ruling on each argument.

For these reasons, the Fifth District vacated the trial court's order awarding attorney fees and remanded the matter for further proceedings. The Fifth District further held that the trial court must decide whether to exercise its discretionary authority under rule 3.1702(d) and grant Maria a two-day extension. If the trial court decides not to grant an extension, it must deny Maria's motion for attorney fees on the ground it is untimely. If the trial court decides to grant an extension, it may either reinstate its earlier determination to award Maria attorney fees under CCP §527.6(s) or revisit its determination.