Hearing Date:             Tuesday, April 03, 2024 

Case Name: POMONA ISLANDER, L.P., a California limited partnership dba POMONA ISLANDER MOBILE HOME PARK v. MIGUEL A. MURILLO aka MIGUEL MURILLO, an individual; and DOES 1 through 10, inclusive 

Case No.: 23STCP02756 

Motion: Motion for Attorney’s Fees and Costs 

Moving Party: Petitioner, Pomona Islander, L.P. 

Responding Party: None  

Notice: OK 

 

Tentative Ruling: Petitioner Pomona Islander, L.P.’s Motion for Attorney’s Fees and Costs is DENIED. 

 

 

SERVICE:   

 

[X] Proof of Service Timely Filed (CRC, rule 3.1300) OK 

[X] Correct Address (CCP §§ 1013, 1013a) OK  

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) OK   

 

OPPOSITION: None filed as of March 20, 2024 [¿¿ ] Late [X] None¿ 

REPLY: None filed as of March 26, 2024 [¿¿ ] Late [X] None¿ 

 

BACKGROUND 

On July 31, 2023, Petitioner Pomona Islander, L.P. dba Pomona Islander Mobile Home Park (“Petitioner”) filed a Petition for Permanent Injunction Pursuant to Civil Code section 798.88 (the “Petition”) against Respondent Miguel A. Murillo (“Respondent”).  

Petitioner entered proof of service on Respondent on September 25, 2023, via personal service.  

On October 02, 2023, the Court granted Petitioner’s petition and issued a permanent injunction pursuant to Civil Code § 798.88.   

On October 05, 2023, Petitioner filed Notice of Ruling indicating that Respondent has been served with a copy of the Court’s Order.  

On December 08, 2023, Petitioner filed the instant Motion for Attorney’s Fees and Costs. The Court on its own motion continued the hearing on the Motion to allow Petitioner to submit supplemental papers which support its argument and establishes authority for the Court to toll the period from the date of duplicate service of the Order on November 9, 2023, rather than the initial date of service on October 5, 2023.   

 

On March 05, 2024, the Petitioner filed its supplemental brief in support of the motion. 

No opposition has been filed.  

MOVING PARTY POSITION 

 

 Petitioner prays for the Court to enter an award of attorney’s fees of $10,425.00 and recoverable court costs of $550.28, for a total amount of $10,975.28. Petitioner argues that under Civil Code §§ 798.85, 1717(a) and (b), since it prevailed on its petition for a permanent injunction under Civil Code § 798.88, it is the prevailing party in the matter and thus entitled to recover its attorney’s fees and costs incurred in the action.   

 

OPPOSITION 

 

No opposition has been filed.  

 

REPLY 

 

No reply has been filed.   

 

ANALYSIS 

 

I. Legal Standard 

¿A prevailing party in an action is entitled to recover costs, including attorney’s fees, as a matter of right.¿ (See Code Civ. Proc. §§ 1032(a)(4), 1032(b), 1033.5.)¿ Attorney’s fees are allowable as costs when authorized by contract, statute, or law.¿ (Code Civ. Proc. § 1033.5(a)(10).)¿ 

¿ 

Civil Code § 798.85 provides:¿ 

¿ 

“In any action arising out of the provisions of this chapter the prevailing party shall be entitled to reasonable attorney's fees and costs.¿ A party shall be deemed a prevailing party for the purposes of this section if the judgment is rendered in his or her favor or where the litigation is dismissed in his or her favor prior to or during the trial, unless the parties otherwise agree in the settlement or compromise.”¿ 

¿ 

“A notice of motion to claim attorney's fees for services up to and including the rendition of judgment in the trial court . . . must be served and filed within the time for filing a notice of appeal under . . . rules 8.822 and 8.823 in a limited civil case.” (Cal. Rules of Court, rule 3.1702(b)(1).)¿ In a limited civil case, a notice of appeal must be filed on or before the earliest of 30 days after service of a document entitled “Notice of Entry” of judgment or 90 days after the entry of judgment. (Cal. Rules of Court, rule 8.822(a)(1).)¿ 

¿ 

II. Discussion  

 

In its previous order, the Court noted that the Motion was not timely filed. The Court specifically found that it “fail[ed] to see how [the] October 5, 2023, Notice of Ruling did not commence the tolling of the 30-day period, and by what authority the Court can toll such period until Petitioner’s service of such order a second time on November 9, 2023.” (02/15/24 Minute Order.)  

Petitioner contends that its motion is timely because no judgment has yet been entered in this case.  Petitioner argues that although both a judgment and an injunction order are appealable it does not mean that the injunction order is the same thing as a judgment. Moreover, the term “appealable order” is not used in Rule 3.1702(b)(1) when it describes the time within which a party may file a motion for attorney’s fees “‘up to and including the rendition of judgment.’” (Supp. Mot. p 3:9.) Alternatively, Petitioner argues that good cause exists to extend the deadline for filing the motion under Rule 3.1702(d).  The Court is not persuaded by Petitioner’s arguments. 

First, Petitioner’s reliance on Crespin and Carpenter is misplaced. The Carpenter court found that CRC rule 3.1702 did not apply to a prejudgment appealable order such as a special motion to strike under section 425.16. Specifically, the Carpenter court evaluated the rule under CCP 425.16 related to the special motion to strike brought in that case which allowed motions for attorney’s fees to be brought, in part, for motions determined to be frivolous or intended to cause unnecessary delay.  The Carpenter court distinguished the language in CRC 3.1702 for purposes of the special motion to strike, noting that the plaintiff’s motion for attorney’s fees incurred in connection with a prejudgment appealable order was a claim for services rendered before “the rendition of judgment” rather than a claim “for services up to an including the rendition of judgment” such that the facts did not fit within the plain language of Rule 3.1702.  Because the term “appealable order” arises from reference in Rule 3.1702 to other rules 8.104 and 8.108 which define ‘judgment’ to include appealable orders, the court determined that interpreting Rule 3.1702 to require motions for attorney’s fees to be brought in connection with a prejudgment appealable order within the time limits set forth would not be practicable or consistent with wise policy, and therefore ruled the plaintiff’s motion as timely even though it was brought well after the time limits referenced in Rules 8.104 and 8.108.  

However, the Carpenter case is distinguishable from the instant matter because here, there was clearly a “rendition of judgment” for the initial petition for permanent injunction when this Court issued its 10-2-2023 Minute Order.  CCP Section 577 defines a judgment as a final determination of the rights of the parties.  In Griset v. Fair Political Practices Com’n (2001) 25 Cal. 4th 688, 698-699, the court recounted the following standard to determine whether an adjudication is final and appealable: ““It is not the form of the decree but the substance and effect of the adjudication which is determinative. As a general test, which must be adapted to the particular circumstances of the individual case, it may be said that where no issue is left for future consideration except the fact of compliance or noncompliance with the terms of the first decree, that decree is final, but where anything further in the nature of judicial action on the part of the court is essential to a final determination of the rights of the parties, the decree is interlocutory.” (Accord,¿California Assn. of Psychology Providers v. Rank¿(1990) 51 Cal.3d 1, 9, 270 Cal.Rptr. 796, 793 P.2d 2¿[summary adjudication on seventh¿cause of action effectively disposing of entire case is an appealable judgment];¿Daar v. Yellow Cab Co.¿(1967) 67 Cal.2d 695, 699, 63 Cal.Rptr. 724, 433 P.2d 732¿[order of dismissal “in legal effect a final judgment from which an¿appeal lies”];¿Belio v. Panorama Optics, Inc.¿(1995) 33 Cal.App.4th 1096, 1101–1102, 39 Cal.Rptr.2d 737¿[order granting summary adjudication of one of three causes of action but effectively disposing of the case construed as appealable judgment].)” 

 Similarly, the Crespin case addressed the primary issue of whether CRC 870.2 sets a time limit for seeking attorney fees under CCP 1021.5 for fees incurred in successfully litigating postjudgment motions in the trial court related to enforcement of an important right affecting public interest.  The defendant in that case argued that Rule 870.2 applied to appealable orders (such as a permanent injunction) and judgments regardless of whether the services were rendered before or after a final judgment.  However, the court ruled that Rule 870.2 was not intended to govern the time for bringing motions for fees arising from post-final judgment activities, such as litigating over modifications to a permanent injunction.  In reaching that conclusion, the court categorizes the permanent injunction as one that is ‘of an executory or continuing nature” specifically in response to defendant’s conclusory assertion that an order denying a motion to modify an injunction is in substance a final judgment.  Here, while Petitioner has added requested fees incurred for this continued motion in its supplemental papers, Petitioner’s initial motion for attorney’s was for litigating the Petition for Permanent Injunction pursuant to Civil Code 798.88.  Respondent never filed any appeal of the Court’s order granting the three-year permanent injunction.  So, Petitioner’s motion for attorney’s fees clearly sought payment for services rendered before, and not postjudgment as in the Crespin case.    

The Court additionally does not find good cause for extending the deadline. While Petitioner sites cases indicating that the CRC 3.1702(d) should be liberally construed, the Court does not find those cases influential in the instant matter.  In Gunlock, the appeals court held that the trial court had jurisdiction to consider a request for contractual attorney fees despite the party’s failure to comply with temporal and procedural requirements in not filing a notice motion for attorney’s fees but including such amounts in a timely noticed and filed memorandum of costs.  The court found that there was no prejudice to defendants from the procedural departure.  In the Robinson case, the Court ultimately granted an extension of time to file the motion for attorney’s fees because of the counsel’s honest mistaken belief that the Court had already ruled plaintiff was entitled to attorney’s fees pursuant to his timely but prematurely filed motion, noting that the trial court’s determination of good cause should be given deferential review and solely for abuse of discretion.  Here, Petitioner does not purport to have made an honest mistake, but rather offers several competing explanations in its supplemental papers as to why this Court’s tentative ruling in its 2-13-24 Minute Order was erroneous as applied to the permanent injunction granted in October 2023.  As mentioned above, the Court’s February order provided an opportunity for Petitioner to provide supplemental briefing as to what date was controlling for the purpose of CRC rule 3.1702(b)(1)’s timing requirement. The Court does not believe Petitioner has provided good cause for providing the secondary proof of service on November 9, 2023, which was substantively identical to the October 5, 2023, Notice of Ruling, and which Petitioner purports should toll the 30-day period to file the instant motion.   

Accordingly, Petitioner’s Motion for Attorney’s Fees and Costs is DENIED.