Zarate v. Manuel

Zarate v. Manuel

















Filed 3/30/10 Zarate v. Manuel CA1/4

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>NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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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opinion has not been certified for publication or ordered published for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



FIRST
APPELLATE DISTRICT



DIVISION
FOUR




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FLORO ZARATE et al., Plaintiffs and Respondents, v. RODELIO MANUEL et al., Defendants and Appellants.

A125662 (Alameda County Super. Ct. No. RG05-241380)

I.

Appellants
appeal from the trial court’s award of attorney fees in the amount of $23,760,
and costs of $125.03, relating to a prior appeal in this case. The sole issue raised is appellants’ claim
that the trial court improperly denied
their motion to tax costs because respondents’ memorandum of costs and
accompanying motion were untimely filed in the trial court following issuance
of the remittitur in case A117808.

We
disagree that the memorandum was untimely filed. Therefore, we affirm.

II.

This
is the third appeal filed in connection with the above-captioned civil action. The first appeal (A117808) addressed the
merits of the underlying judgment, which we affirmed in a written opinion filed
on October 10, 2008. As part of the disposition in that opinion,
we awarded respondents their costs on appeal.

The
second appeal (A120686) challenged an award of attorney fees to respondents in
the amount of $69,753.97, incurred in litigating the merits of the case in the
trial court. We affirmed that award in a
written opinion filed on May 28, 2009.

The
current appeal (A125662) challenges the award of attorney fees in the amount of
$23,760, and costs of $125.03, awarded to respondents by the trial court >after we issued our opinion in A117808,
the first appeal, and the remittitur issued.

The
remittitur in A117808 was issued by the clerk of this court to the parties and
to the superior court on January 22,
2009.[1] It is undisputed that respondents filed their
memorandum of fees and costs and accompanying motion for attorney fees and
costs on March 5—42 days after the remittitur issued. >[2]

Appellants
filed both their opposition to the motion for fees and costs and a motion to
tax costs on March 23 and March 25, respectively. One of the grounds raised was that the motion
for fees and costs, and the filing of the memorandum
of fees and costs, were untimely.

By
order dated April 3, the trial court granted respondents’ motion for fees and
costs. Appellants’ motion to tax costs
and fees was denied by minute order on May 29.

III.

California
Rules of Court, rule 8.278(c)[3]
provides: “(c) Procedure for claiming or opposing costs
[¶] (1) 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. [¶] (2) A party may
serve and file a motion in the superior court to strike or tax costs claimed
under (1) in the manner required by rule 3.1700. [¶] (3) An award of costs is
enforceable as a money judgment.”

Similarly,
rule 3.1702(c) governs the timing of motions for attorney fees brought in the
trial court following an appeal: “(c) Attorney[] fees on appeal
[¶] (1) Time for motion [¶] A notice of motion to claim
attorney[] fees on appeal—other than the attorney[] 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).”

It
is undisputed that respondents’ motion for attorney fees and their memorandum
of costs were not filed until March 5,
42 days after the remittitur in case A117808 was “issued.” Both had to be filed no later than 40 days
after issuance. Respondents primarily
argue that there is no evidence this court’s docket entry indicating the
remittitur “issued” on January 22, meant that a “notice of issuance” was sent
the same day, within the meaning of rule 8.278(c)(1).

We
need not address this question because, even assuming the clerk’s entry on
January 22 constitutes sending “notice of
issuance” of the remittitur, respondents had the benefit of Code of Civil
Procedure section 1013 (section 1013), which extended the time to respond
to such notice an additional five days.
That section states, in part, as follows:

“The
service is complete at the time of the deposit, but any period of notice and
any right or duty to do any act or make any response within any period or on a
date certain after the service of the document, which time period or date is prescribed by statute or rule of court,
shall be extended five calendar days, upon service by mail, if the place of
address and the place of mailing is within the State of California
. . . but the extension shall not apply to extend the time for filing
notice of intention to move for new trial, notice of intention to move to
vacate judgment pursuant to Section 663a, or notice of appeal. This
extension applies in the absence of a specific exception provided for by this
section or other statute or rule of court.”
(Code Civ. Proc., § 1013, italics added.)

By
its very terms, the statute applies to time limits prescribed by rules of
court. Therefore, there is no basis for
appellants to argue that the five additional days’ “grace” for mailing does not
apply to the 40-day limitation period set forth in rule 8.278(c)(1). Appellants have cited no authority which
would so limit application of section 1013.

Moreover,
we note that section 1013 specifies three discrete exceptions to the mailing
grace period, involving motions for new trial, motions to vacate judgments, and
notices of appeal. As this court has
recently observed: “Under the standard rules of statutory construction, we will
not read into the statute a limitation that is not there. [Citation.]’
(People v. Bautista (2008) 163
Cal.App.4th 762, 777 . . . ; see also Friends of Lagoon Valley v.
City of Vacaville (2007) 154 Cal.App.4th 807, 826 . . . [‘it is
not the court’s place to insert words into [a] statute’].) Specifically, ‘ “[u]nder the maxim of
statutory construction, expressio unius
est exclusio alterius, if exemptions are specified in a statute, we may not
imply additional exemptions unless there is a clear legislative intent to the
contrary. [Citation.]” [Citation.]’
(Rojas v. Superior Court
(2004) 33 Cal.4th 407, 424 . . . .)” (Suarez
v. Pacific Northstar Mechanical, Inc. (2009) 180 Cal.App.4th 430, 443.)

Because
respondents filed their motion and memorandum of costs and fees with the time
allowed by rule 8.278(c)(1), as extended by section 1013, the trial court
properly granted the motion and awarded costs, while denying appellants’ motion
to tax costs.

IV.

The
order granting costs and attorney fees to respondents, and the order denying
appellants’ motion to tax costs, are affirmed.
Each party to bear their own costs and attorney fees incurred in this
appeal.









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RUVOLO,
P. J.





We concur:





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REARDON, J.





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SEPULVEDA, J.



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