Metropolitan News-Enterprise


Tuesday, February 20, 2024


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Court of Appeal:

Order That Motion for Attorney Fees Be Filed, Heard Before Dismissal Was Improper

Court Can Extend—but Not Shorten—Deadline to File a Motion for Attorney Fees


By Kimber Cooley, Staff Writer


Div. Four of the Court of Appeal for this district on Friday reversed an order denying attorney fees as untimely where the trial court had erroneously ordered the party claiming fees to have his fee motion “filed and heard” before the case was dismissed pursuant to a settlement agreement.

Justice Audra M. Mori authored the unpublished opinion, which reverses the order of Los Angeles Superior Court Judge Michael P. Linfield. Acting Presiding Justice Audrey B. Collins and Justice Helen Zukin joined in the opinion.

Bahram Javidian filed suit against Subaru of America, Inc. for various warranty and negligent repair claims relating to his vehicle. In October 2021, Subaru offered to settle the action for “$40,000, plus attorney fees, costs, and expenses.”

Javidian accepted and the parties agreed to memorialize the agreement in writing.

Settlement Terms

Linfield set a status conference for Nov. 10, 2021 to allow the parties an opportunity to finalize the terms. At that hearing, the court set a further hearing for Jan. 5, 2022, at which point the court would inquire as to “why the case should not be dismissed.”

The judge further ordered that any motion for attorney fees “be filed and heard by” Jan. 5.

The offer was finalized and agreed to by the parties, and included the following language:

“[Subaru] will…pay Plaintiff’s costs, expenses, and attorneys’ fees, in accordance with Civil Code section 1794, subdivision (d), in an amount to be agreed upon by the parties, or if the parties cannot agree, to be determined by the Court upon properly noticed Motion. For the limited purposes of such Motion, defendant acknowledges and stipulates to the fact that Plaintiff is the ‘prevailing party.’ ”

At the hearing, Javidian requested that the action not be dismissed because he had not yet been paid the attorney fees and costs. Linfield dismissed Javidian’s complaint and retained jurisdiction “to make orders to enforce any and all terms of settlement, including judgment.”

Fee Motion

Believing the court retained jurisdiction over the issue of attorney fees and costs, Javidian filed a motion on April 29, 2022 requesting $119,470.98 in fees. Subaru opposed the motion, arguing it was untimely because it had not been filed by the court-ordered Jan. 5 deadline.

Linfield denied Javidian’s motion for attorney fees, stating that the court had retained jurisdiction “simply to make sure that the checks had been sent, that Subaru’s check didn’t bounce,” adding that “the Court was quite clear that any attorney’s fees were going to be heard before January 5th.”

On appeal, Javidian argued that the trial court did not have authority to set a deadline for him to file his motion for attorney fees before entry of dismissal, in violation of California Rules of Court, rule 3.1702, which provides that a motion for fees is to be filed and served within the time for filing a notice of appeal after entry of judgment or dismissal.

Shortened Deadline

Mori explained that Javidian’s contention was that rule 3.1702 “authorizes a trial court to extend the deadline to file a fee motion, it does not permit a court to shorten it.”

Relying on the plain language of the rule and its documented history, Mori agreed with Javidian, and said:

“Rule 3.1702’s history indicates that neither the drafters of the rule nor the parties commenting on the proposed rule contemplated a trial court shortening the deadline for filing a motion for attorney fees so that the motion had to be filed before entry of judgment or dismissal.”

She continued:

“The drafters intended to have a uniform rule for all claims for statutory or contractual attorney fees, and they determined the 60 and 180-day periods after entry of judgment or dismissal provided adequate time for preparing motions. These factors lead us to conclude that if a trial court could shorten the filing period for a fee motion to occur before entry of judgment or dismissal, it would thwart the drafters’ intent.”

The justice added:

“This interpretation is also consistent with the numerous cases holding that the time to begin calculating the deadline for a party to file a motion for attorney fees under rule 3.1702 commences with the entry of judgment or dismissal….A reading contrary to these holdings would require a prevailing party to seek fees “for services up to and including the rendition of judgment in the trial court” before judgment or dismissal is actually entered and all prejudgment fees are known….It could promote piecemeal litigation over fees, rather than the filing of a single motion to seek all fees incurred to bring a matter to conclusion within a reasonable amount of time after the matter has clearly concluded.”

A remand was ordered for a determination of the amount of the fees.

The case is Javidian v. Subaru of America, Inc., B322136.

Javidian was represented by Cynthia E. Tobisman, Joseph V. Bui, and Anne Guidroz of the mid-Wilshire firm of Greines, Martin, Stein & Richland and by Payam Shahian of the Century City firm of Strategic Legal Practices. Acting for Subaru were Jacqueline Bruce Chinery, and Robert A. Philipson of the Westwood firm of Lehrman, Villegas, Chinery & Douglas.


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