V3I v. Western Digital

























Filed 9/29/10 V3I v. Western Digital CA4/3











>NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
THREE




>

V3I, Plaintiff and Appellant, v. WESTERN DIGITAL CORPORATION et al., Defendants and Respondents.

G041386 (Super. Ct. No. 03CC00179) O P I N I O N

Appeal from a judgment
of the Superior Court
of Orange
County, Stephen J. Sundvold, Judge. Motion to consolidate. Judgment affirmed. Motion denied.

Mazda Butler, Mark N.
Mazda and Mark J. Butler for Plaintiff and Appellant.

Bird, Marella, Boxer,
Wolpert, Nessim, Drooks & Lincenberg, Terry W. Bird, Ekwan E. Rhow, Sharon
Ben-Shahar and Thomas R. Freeman for Defendants and Respondents.



As set out in the
opinion in the related case (V3I v.
Western Digital Corporation (Sept. 29, 2010, G040832) [nonpub. opn.]),
which we file concurrently, we affirm a judgment in favor of defendants Western
Digital Corporation, Keen Personal Media, Inc., Russell M. Krapf, and Frank
Paulson. In this case plaintiff V3I
appeals from attorney fees and certain costs awarded to defendants. It claims the motion for fees was untimely,
Keen incurred no fees, and the award to Western is too high. It also asserts the court abused its
discretion in awarding expert witness fees.
We are not persuaded by any of these arguments and affirm the
judgment. Defendants filed a motion to consolidate the two appeals,
which we deny.



FACTS
AND PROCEDURAL HISTORY



The substantive facts
underlying this action are set out in the opinion in G040832 and we incorporate
them by reference to the extent relevant.
We set out only additional information relevant to the issues in this
opinion.

> Judgment
in defendants' favor was entered in June 2008, including that defendants were
entitled to costs, although no amount was included. Plaintiff filed a motion for new trial and
two JNOV motions, which were denied.
Plaintiff filed its first appeal.
The judgment was amended in September to award almost $289,000 in costs
to defendants and in November to award them almost $1.6 million in attorney
fees. Plaintiff then filed the current
appeal from the award of fees and costs.




DISCUSSION



>1.
Timeliness of Attorney Fee Motion

Relying on the date notice of entry of judgment was served,
June 18, plaintiff contends the motion for attorney fees was untimely because
not filed until August 18, 61
days thereafter. (Cal. Rules of Court,
3.1702(b)(1) [unless time extended motion must be filed within normal time for
filing notice of appeal].) This is
incorrect for several reasons, including that the 60th day, August 17, fell on
a Sunday, thereby extending the time to file the motion. (Cal.
Rules of Court, rule 1.10(b) [time to file motion if due date falls on Sunday];
Code Civ. Proc., §12a, subd. (a).) We
need not discuss the other reasons why this argument fails, including that
plaintiff failed to assert this in the trial court, thereby waiving it. (In re
Marriage of King (2000) 80 Cal.App.4th 92, 117.)



>2.
Keen's Attorney Fees

Plaintiff claims that
because Keen was defunct before the lawsuit was even filed, it never incurred
or paid attorney fees and therefore is not entitled to recover any. This argument has no merit.

Exhibit 24 provides that
in an action to enforce its terms, the prevailing party is entitled to recover
reasonable attorney fees. Civil Code
section 1717, subdivision (a) states that where a contract contains such a
provision, the party who is determined to be prevailing is entitled to such
fees. The section says nothing about
payment of fees. It requires only that
fees be â€