Judge: Stephen I. Goorvitch, Case: 22STCP03828, Date: 2024-06-26 Tentative Ruling

Case Number: 22STCP03828    Hearing Date: June 26, 2024    Dept: 82

Donray Jones, Jr. v. Steve Gordon

Case No. 22STCP03828

[Tentative] Order Denying Motion for Attorneys’ Fees

            Petitioner Donray Jones, Jr. (“Petitioner”) filed a petition for writ of mandate against Steve Gordon, Director of the Department of Motor Vehicles (the “DMV”), in his official capacity (“Respondent”).  Petitioner alleged that the hearing to suspend his driver’s license did not comply with California DUI Lawyers Assn. v. Department of Motor Vehicles (2022) 77 Cal.App.5th 517 (hereinafter, “CDLA”).  The court (Beckloff, J.) granted the petition on July 31, 2023, and remanded the matter to the DMV.  On March 12, 2024, Petitioner filed a motion for attorneys’ fees under Government Code section 800.  Respondent opposes the motion on several grounds, including the timeliness of the motion. 

            The court denies the motion as untimely.  Under California Rules of Court, rule 3.1702, a motion for attorneys’ fees must be filed under the time period afforded by rules 8.104 and 8.108.  Under rule 8.104, the motion must be filed on or before the earliest of: (A) 60 days after the clerk serves the “Notice of Entry” of judgment; (B) 60 days after the appealing party serves the “Notice of Entry” of judgment; or (C) 180 days after entry of judgment.  This motion was filed 225 days after Judge Beckloff signed the “order granting petition for writ of mandate.” 

            Petitioner’s counsel argues that no judgment was entered and therefore the deadline has not yet started running.  As an initial matter, Petitioner’s counsel is responsible for the lack of a formal judgment.  On July 31, 2024, in a separate minute order, Judge Beckloff ordered Petitioner’s counsel as follows:

Counsel for Petitioner is to prepare a proposed judgment, serve on the opposing parties for approval as to form, wait ten days after service for any objections, meet and confer if there are objections, and then lodge (do not file) the proposed judgment directly in Department 86 and file (do not lodge) a declaration stating the existence or non-existence of any unresolved objections (LASC Local Rule 3.231(n).) 

(See Court’s Minute Order, dated July 31, 2023.)  Petitioner’s counsel failed to do so.  Petitioner’s counsel cannot now take advantage of his own dilatory conduct by arguing that the deadline to file a motion for attorneys’ fees never started running.  “No one can take advantage of his own wrong.”  (Civ. Code § 3517.)    

            Regardless, Judge Beckloff’s signed order of July 31, 2023, operated as a “final appealable order” for purposes of rule 8.104.  This order completely adjudicated the underlying petition; the order was signed by Judge Beckloff; the order was file-stamped by the clerk’s office’ and the order was accompanied by a certificate of mailing to the parties.  This was sufficient in the absence of “a further signed order to finalize the adjudication.”  (Russell v. Foglio (2008) 160 Cal.App.4th 653, 660.)  Therefore, the deadline under rule 8.104 started running on July 31, 2023, which means that Petitioner’s motion for attorneys’ fees is untimely.

            Based upon the foregoing, the court order as follows:

            1.         Plaintiff’s motion for attorneys’ fees is denied.

            2.         Plaintiff’s counsel shall provide notice and file proof of service with the court.