Wednesday, February 18, 2026
Page 3
Court of Appeal:
Noticed Date of Dismissal Triggered Clock for Attorney Fees
Opinion Says Even Though Order Disposing of Complaint After Settlement Followed Request to Recover Legal Costs, Time Period Started When Earlier Notice Said Case Would Be ‘Deemed’ Dismissed
By a MetNews Staff Writer
Div. One of the Fourth District Court of Appeal held yesterday that a plaintiff’s request for attorney fees following a favorable settlement was properly denied as untimely where it was not served on the other side until seven months after the date on which a notice indicated that the case would be “deemed dismissed without prejudice.”
Finding that the fact that the court did not order the complaint to be dismissed until after the plaintiff filed a motion for fees did not affect the timeline, the court rejected the plaintiff’s view that the clock does not start to run on requests for attorney fees until the court disposes of the case by way of an appealable decree.
The timeline at stake is governed by Rule 3.1702 of the California Rules of Court, which provides that a motion for fees incurred up to the time 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.”
Subject to certain exceptions, Rules 8.104 and 8.108 specify that the deadline for filing a notice of appeal is the earlier of 60 days after service of notice of entry of judgment or 180 days after judgment is entered, and case law has established that a voluntary dismissal operates as a judgment for purposes of the timeline.
Justice Joan K. Irion authored yesterday’s opinion, joined in by Presiding Justice Judith McConnell as well as Justice Truc T. Do. She wrote:
“We acknowledge no dismissal order was filed in the case until June 17, 2024, when the trial court signed a minute order dismissing the operative complaint without prejudice. But that date is not the date of dismissal for purposes of starting the clock running on the time [the plaintiff] had to move for attorney fees.”
Defective Vehicle
Appealing the denial of his request for attorney fees was Matthew Hatlevig, who filed a complaint against General Motors LLC in February 2021 relating to a purportedly defective vehicle he purchased in 2017. The parties arranged to settle the matter for $100,000 plus an agreement that the defendant would pay fees to Hatlevig as the prevailing party, in an amount to be determined by the trial court.
On June 2, 2023, Hatlevig notified the trial court of the settlement and, nine days later, the clerk generated a “NOTICE OF DISMISSAL BY COURT,” which said that the “CASE [WOULD BE] DEEMED DISMISSED WITHOUT PREJUDICE ON 08/15/2023” unless a judgment or dismissal was filed or a party showed good cause.
After the date passed without action by either party, Hatlevig moved for fees on Aug. 31. The plaintiff served his motion on the defendant in early April 2024.
General Motors opposed the motion, asserting that it was untimely because it had not been served within 180 days of Aug. 15, 2023. On April 26, 2024, San Diego Superior Court Judge Robert C. Longstreth denied the motion, opining that the “case was dismissed on August 15, 2023, since no cause was shown why it should not be,” and Hatlevig did not timely serve the motion on GM “[e]ven giving [him] the benefit of the full 180 days after that date.”
Two months later, Longstreth signed a minute order providing that “[t]he court orders the Amended Complaint (SECOND), filed by plaintiff dismissed without prejudice.”
Clock Running
Noting that “[t]he main issue in dispute in this appeal is what event started the clock running,” Irion wrote:
“Hatlevig argues it was the entry…of the signed minute order that dismissed the operative complaint without prejudice….Hatlevig…argues the notice the clerk mailed to the parties stating the case would be deemed dismissed on August 15, 2023, was not appealable and thus did not start the clock on the time to file a notice of appeal or to move for attorney fees. GM counters that an appealable order…is not required to start the clock running…That time, says GM, ‘was triggered by the conclusion of the litigation on the merits on August 15, 2023, when…the case was deemed dismissed without prejudice.’ ”
Saying that “[w]e conclude GM has the better argument,” the jurist continued: “Rule 3.1702 does not require an appealable order or judgment even though it uses ‘the time for filing a notice of appeal’ to set the deadline for serving and filing a motion for attorney fees….A voluntary dismissal, though not appealable, starts the clock running on the time to move for attorney fees when the dismissal concludes the litigation and triggers a right to fees.”
Date of Dismissal
Turning to what day qualifies as the “date of dismissal,” she pointed out that a plaintiff, absent special circumstances, is required to request that the entire case be dismissed within 45 days of settlement and, if he fails to do so, the court is obligated to dismiss on its own accord unless good cause is shown.
Based on these principles, the justice said:
“[C]onsistent with the notice of dismissal, the case was dismissed without prejudice on August 15, 2023.”
Irion added:
“By filing the motion on August 31, 2023, Hatlevig implicitly acknowledged the case had been dismissed….When we consider the entire dismissal order and the surrounding circumstances, as we must…, we conclude the court entered the [June] order to fulfill the mandatory duty to dismiss settled cases…and intended it as a nunc pro tunc correction of the failure to file a dismissal order on August 15, 2023….”
Reasoning that “[o]ur conclusion the case was voluntarily dismissed on August 15, 2023, compels the conclusion the motion for attorney fees was untimely,” she said:
“One hundred eighty days after the dismissal was February 11, 2024. Hatlevig filed his motion before that date (on Aug. 31, 2023), but he did not serve it until nearly two months after February 11, 2024 (on Apr. 4, 2024). The trial court therefore did not err in denying the motion as untimely.”
The case is Hatlevig v. General Motors LLC, D084360.
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