Chase Livio v. Savin



















Filed 2/27/13 Chase Livio v. Savin CA4/2













NOT TO BE PUBLISHED IN OFFICIAL REPORTS



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opinion has not been certified for publication or ordered published for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>



FOURTH APPELLATE DISTRICT



DIVISION TWO






>

CHASE LIVIO LLC, Plaintiff and Respondent, v. RONALD R. SAVIN, Defendant and Appellant.

E055084 (Super.Ct.No. INC079265) >OPINION

APPEAL
from the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Riverside
County. Harold W. Hopp,
Judge. Reversed.

Blakely
Law Group, Brent H. Blakely and Michael Marchand for Defendant and Appellant.

The
Law Offices of Paul D. Bojic, Paul D. Bojic and P. Marissa Marino for Plaintiff
and Respondent.

I

INTRODUCTION

On September 22, 2011, the trial court
denied defendant and appellant Ronald R. Savin’s motion for costs and attorney
fees as untimely under California Rules of Court, rule 3.1702.href="#_ftn1" name="_ftnref1" title="">>^[1] Savin appeals, contending that the trial
court erred because his motion was timely filed under rules 3.1702 and
8.104(a).href="#_ftn2" name="_ftnref2" title="">>^[2]


Since
the sole issue in the case is a legal issue, we apply a de novo standard of
review.

Rule 3.1702(b)(1)
applies to claims for statutory attorney fees and in contract actions. It provides: “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 href="http://www.mcmillanlaw.com/">notice of appeal under rules 8.104 and
8.108 in an unlimited civil case . . . .”

Rule
8.104(a)(1) provides that an appeal must be filed “on or before the earliest
of: [¶]
(A) 60 days after the superior court clerk serves on the party
filing the notice of appeal a document entitled ‘Notice of Entry’ of judgment
or a file-stamped copy of the judgment, showing the date either was
served; [¶] (B) 60 days after the party filing the notice
of appeal serves or is served by a party with a document entitled ‘Notice of
Entry’ of judgment or a file-stamped copy of the judgment, accompanied by proof
of service; or [¶] (C) 180 days after entry of judgment.”href="#_ftn3" name="_ftnref3" title="">>^[3]

Savin
argues that subsections (A) and (B) of rule 1804(a)(1) are inapplicable because
neither the court clerk nor the opposing party ever served him with “a document
entitled ‘Notice of Entry’ of judgment or a file stamped copy of the judgment,
accompanied by proof of service.” (Rule
8.104(a)(1)(B).) If no such document was
served, Savin’s motion for attorney fees was timely because he complied with
subsection (C) by filing his motion 178 days after entry of judgment.

Plaintiff
and respondent Chase Livio, LLC (Chase Livio) contends: (1) subsection (A) of rule 1804(a)(1) was
applicable because the superior court clerk did mail out a document entitled
“Notice of Entry” on February 10, 2011; and (2) subsection (B) of rule
1804(a)(1) was applicable because Savin served the proposed order on Chase Livio on January 27, 2011.

II

DISCUSSION

A. Time
began to Run Upon the Filing of the Formal Order on

February 7, 2011>.

Although
our record is extremely limited,href="#_ftn4"
name="_ftnref4" title="">^>[4]
it shows that Savin’s motion for judgment on the pleadings was granted on January 14, 2011. The minute order requires Savin to prepare,
submit, and serve a formal order. The
formal order was signed and filed on February
7, 2011. It grants the
motion for judgment on the pleadings and dismisses all claims against
Savin. It also provides that Savin is
awarded costs and fees in an amount to be determined.

Subsequently,
Savin served a proposed order on
other parties to the underlying action, including Chase Livio, on January 27, 2011. The trial court signed the proposed order,
and it was filed on February 7, 2011. That date is the date of entry of
judgment. (Rule 8.104(c).)

B. The
Motion for Attorney Fees and Costs Was Filed on August 5, 2011>,

178 Days Later.

Unless there was a
notice of entry of judgment or file-stamped copy of the judgment served under
rule 8.104(a)(1)(A) or (B), a notice of appeal had to be filed within 180
days. Under rules 3.1700(a)(1) and
3.1702, the motion for attorney fees also had to be filed within 180 days, if
no earlier limit applies. The motion was
actually filed 178 days later.href="#_ftn5"
name="_ftnref5" title="">^>[5]

C. The Trial Court Denied
the Motion as Untimely.

The trial court
denied the motion for attorney fees and costs.
It found that the “motion was filed far beyond the time limits required
by [rule] 3.1702.” It therefore found
that notice had been given under rule 8.104(a)(1)(A) or (B), i.e., either the
court clerk or one of the parties had served a “‘Notice of Entry’ of judgment
or a file-stamped copy of the judgment,” showing the date either was served.

D. Neither Party Has
Demonstrated That a Notice of Entry of Judgment or a

File-Stamped Copy of
the February 7, 2011,
Order Was Served by the

Clerk of the Court or
a Party.

As
noted, ante, the requisite notice is
provided by service of the notice of entry of judgment or a file-stamped copy
of the judgment, accompanied by a proof of service. (Rule 8.104(a)(1)(A) & (B).)

Chase Livio has
submitted a copy of the order filed February
7, 2011, and has cited it in support of its argument that the order
was served.href="#_ftn6" name="_ftnref6"
title="">^[6] However, the copies of the order and
declaration of service in the record show that it was submitted and served as a
proposed order on January 27, 2011. The trial court deleted the word “proposed”
on the face of the order, signed it on February
7, 2011, and it was filed on that date. There is no declaration of service of the
final signed order on or after February
7, 2011, in our record.

Chase Livio also
argues that service of the proposed
order occurred on January 27, 2011,
and counts days from there. But the
proposed order was only a request until it was approved by the trial court on February 7, 2011. As noted, ante,
there is no evidence that the signed and filed order was ever served on anyone
by anyone.

In the absence of
any showing in Savin’s appendix, Chase Livio’s appendix, or anywhere else in
the record that the August 7, 2011, order or a notice of entry of judgment was
served, we must conclude that it was not.

Accordingly, Savin
is correct that his motion was timely under rules 3.1702(b)(1) and
8.104(a)(1)(C). The trial court
therefore erred in finding that the motion was untimely.

III

DISPOSITION

The trial court’s
order of September 22, 2011,
is reversed. The case is remanded for
further proceedings in accordance with this opinion. Appellant is awarded costs on appeal.

NOT TO BE
PUBLISHED IN OFFICIAL REPORTS



RICHLI

Acting
P. J.



We concur:





MILLER

J.





CODRINGTON

J.