Wells v. Ciotti

Filed 9/28/06 Wells v. Ciotti CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

APPEAL from an order of the Superior Court of Los Angeles County.Morris Jones, Judge. Reversed.

W. G. Wells, in pro. per., for Plaintiffs and Appellants.

No appearance for Defendant and Respondent.

___________________________________________________

W.G. Wells and Valuation Systems have appealed an award of attorney fees and costs. We reject appellants’ request to vacate the award due to the purported disqualification of the trial judge. (Code Civ. Proc., § 170.3, subd. (c)(4).)^[1] We agree, however, that the trial court erred in awarding attorney fees, because the motion for costs was untimely.

FACTS

Appellants leased commercial real estate to respondent Richard Ciotti. In 2002, Ciotti secured a judgment against appellants in a dispute over the lease. The parties’ lease agreement requires an award of fees and costs to the prevailing party. Numerous postjudgment appeals were taken by Wells and Valuation Systems. Their first appeal was dismissed for failure to timely file an opening brief. (Jan. 22, 2004, B164403.) Appellants’ next two appeals resulted in the trial court’s rulings being vacated because the trial judge failed to timely respond to appellants’ statement of disqualification. (Apr. 5, 2004, B166077 [nonpub. opn.] & Nov. 30, 2004, B171571 [nonpub. opn.].)

In August 2004, the trial court awarded Ciotti attorney fees and costs totaling over $56,000 for the period starting August 2001 and ending January 2003. Appellants challenged the August 2004 attorney fee award, which we affirmed on appeal. (Feb. 3, 2006, B179092 [nonpub. opn.].)

In April 2005, while B179092 was pending on appeal, Ciotti filed another motion for attorney fees and costs, covering the period beginning February 2003 and ending March 2005. Ciotti requested an award of $51,645 spent defending against “unnecessary motions and appeals brought by Wells.”

Before the request for attorney fees was resolved, appellants sought to disqualify the trial judge. In a verified statement filed on May 18, 2005, appellants claimed an improper ex parte communication between the judge and Ciotti’s attorney, arising from defense counsel’s delivery of documents directly to the court, without serving them on appellants. The trial judge was served with appellants’ disqualification statement on June 14, 2005.

On June 14, 2005, the court addressed Ciotti’s request for attorney fees and appellants’ disqualification efforts. The court awarded Ciotti the requested $51,645 in attorney fees. At the same time, the court rejected appellants’ disqualification papers as being meritless, noting that appellants examined and were allowed to respond to Ciotti’s documents. Appeal is taken from the order awarding postjudgment attorney fees.

DISCUSSION

1. Appeal And Review

A postjudgment order awarding attorney fees is appealable. (R.P. Richards, Inc. v. Chartered Construction Corp. (2000) 83 Cal.App.4th 146, 158.) In an action on a contract containing an attorney fees clause, the prevailing party is entitled to recover its fees and costs. (Civ. Code, § 1717, subd. (a).) The trial court has broad authority to determine the appropriate amount of the award, and its exercise of discretion “‘will not be disturbed unless the appellate court is convinced that it is clearly wrong.’” (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095.)

2. Disqualification Of The Trial Judge

Appellants argue that the attorney fees order, dated June 14, 2005, is void because it was entered after the trial judge was disqualified by operation of law. A party who seeks to disqualify a trial judge must file a verified statement setting forth the grounds for disqualification. The statement “shall be personally served on the judge alleged to be disqualified, or on his or her clerk, provided that the judge is present in the courthouse or in chambers.” (§ 170.3, subd. (c)(1).) A judge who fails to timely respond is deemed to have consented to the disqualification. (§ 170.3, subd. (c)(4).) Appellants have filed supplemental papers showing that the trial judge was personally served with their statement of disqualification on June 14, 2005.^[2]

A verified statement from a party that discloses no legal grounds for disqualification on its face may be stricken by the trial judge within 10 days after the judge is served with the statement of disqualification. (§ 170.4, subd. (b); PBA, LLC v. KPOD, Ltd. (2003) 112 Cal.App.4th 965, 972; Lewis v. Superior Court (1988) 198 Cal.App.3d 1101, 1104.) If the statement is not stricken or answered in a timely manner, automatic disqualification occurs. (Urias v. Harris Farms, Inc. (1991) 234 Cal.App.3d 415, 420-421.)

The supplemented record now shows that the trial judge timely addressed appellants’ disqualification statement on June 14, 2005, the same day that he was personally served. A minute order reflects that the court found “absolutely no merit“ to or legal basis for appellants’ disqualification statement. We do not know whether the judge used the word “stricken” during the June 14 hearing, because appellants failed to provide us with the reporter’s transcript of that hearing. Regardless of the language used, the court’s intent was clearly to strike the statement of disqualification.

If the court’s timely rejection of appellants’ statement of disqualification was in any way lacking, appellants’ sole remedy was to petition for a writ of mandate. (§ 170.3, subd. (d) [“The determination of the question of the disqualification of a judge is not an appealable order and may be reviewed only by a writ of mandate . . .”].) The court’s rejection of appellants’ disqualification efforts cannot now be challenged by way of this appeal.

3. Timeliness Of Ciotti’s Request For Attorney Fees

Ciotti’s costs relate to the many appeals taken by Wells, and to posttrial motions made by Wells. Appellants challenge Ciotti’s attempt to recover the attorney fees, arguing that the motion was untimely.

The California Rules of Court permit a party claiming costs on appeal to file a motion and memorandum of costs in the superior court within 40 days after the clerk sends notice of issuance of the remittitur. (Rule 27(d)(1).) A motion to claim contractual attorney fees on appeal must be filed and served within the 40 day time frame. (Rule 870.2(c)(1).) The 40 days can be extended only by stipulation or by the trial judge. (Rule 870.2(c)(2), (d).)

In this instance, the remittiturs in Wells’s appeals issued more than 40 days before Ciotti filed his motion for attorney fees. The remittitur in B166077 issued on June 9, 2004. The remittitur in B171571 issued on February 4, 2005. Ciotti’s motion for attorney fees was not filed until April 2005.

Appellants did not raise the issue of untimeliness in the trial court. The time limits for filing a memorandum of costs are not jurisdictional in character. (Nazemi v. Tseng (1992) 5 Cal.App.4th 1633, 1640.) However, the time limits are mandatory and the trial court has no discretion to ignore them. (Ibid.; Russell v. Trans Pacific Group (1993) 19 Cal.App.4th 1717, 1726.) Ciotti forfeited his entitlement to costs by failing to file a timely costs bill. (Moulin Electric Corp. v. Roach (1981) 120 Cal.App.3d 1067, 1070.) As a result, the trial court’s award of attorney fees was in error.

DISPOSITION

The order awarding attorney fees and costs is reversed. In the interests of justice, appellants are denied their attorney fees and costs on appeal, due to appellants’ dishonest conduct in this Court, as described in footnote 2, ante. (Rule 27(a)(4).)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

BOREN, P.J.

We concur:

DOI TODD, J.

CHAVEZ, J.

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^[1] All statutory references in this opinion are to the Code of Civil Procedure, unless otherwise indicated. All rule references are to the California Rules of Court.

^[2] In their opening brief, appellants falsely claim that the trial judge was served with their disqualification papers on May 18, 2005. Using this manufactured date of service, appellants argue that the court was disqualified by operation of law before the June 14 hearing on the motion for attorney’s fees. Not until this Court questioned appellants’ service on the trial judge did they admit that the trial court was not served with their papers until June 14, the very day of the hearing, and almost a month after the date specified in their opening brief.