Commentary about Zarate v. Manuel
Judicial Council Report of 10/3/2002 Showing mass substitution of word "mail" by word "send".
Unpublished decision that 40 day rule for deadline of memo of fees and costs is extended by 5 days due to the sending of the Notice of Remittitur by mail. This issue is complicated by the sloppy appellate court language and procedure of most "Notices of Remittitur". DCA's often create no record whatsoever of the date the Notice of Issuance of Remittitur. Riverside's 4DCA2 merely mails an unsigned, unstamped template of the text of the Remittitur, but no document is generated having a title of Notice of Remittitur. Since no sending and no date of sending is established, one might argue that the 40 day period to respond never begins to toll.
Zarate v. Manuel, Case No. A125662 (1st Dist., Div. 4 Mar. 30, 2010) Unpublished
Rule 3.1702. Claiming attorney's fees
2011 California Rules of Court
Rule 3.1702. Claiming attorney's fees
(a) Application
Except as otherwise provided by statute, this rule applies in civil cases to claims for statutory attorney's fees and claims for attorney's fees provided for in a contract. Subdivisions (b) and (c) apply when the court determines entitlement to the fees, the amount of the fees, or both, whether the court makes that determination because the statute or contract refers to "reasonable" fees, because it requires a determination of the prevailing party, or for other reasons.
(Subd (a) amended effective January 1, 2007.)
(b) Attorney's fees before trial court judgment
(1)
Time for motion
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 notice of appeal under rules 8.104 and 8.108 in an unlimited civil case or under rules 8.822 and 8.823 in a limited civil case.
Rule 8.104. Time to appeal
2011 California Rules of Court
Rule 8.104. Time to appeal
(a) Normal time
Unless a statute or rule 8.108 provides otherwise, a notice of appeal must be filed on or before the earliest of:
(1)60 days after the superior court clerk serves the party filing the notice of appeal with a document entitled "Notice of Entry" of judgment or a file-stamped copy of the judgment, showing the date either was served;
(2)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
(3)180 days after entry of judgment.
(4)Service under (1) and (2) may be by any method permitted by the Code of Civil Procedure, including electronic service when permitted under Code of Civil Procedure section 1010.6 and rules 2.250-2.261.
(Subd (a) amended effective January 1, 2010; previously amended effective January 1, 2007.)
(b) No extension of time; late notice of appeal
Except as provided in rule 8.66, no court may extend the time to file a notice of appeal. If a notice of appeal is filed late, the reviewing court must dismiss the appeal.
Rule 8.108. Extending the time to appeal
2011 California Rules of Court
Rule 8.108. Extending the time to appeal
(a) Extension of time
This rule operates only to extend the time to appeal otherwise prescribed in rule 8.104(a); it does not shorten the time to appeal. If the normal time to appeal stated in rule 8.104(a) is longer than the time provided in this rule, the time to appeal stated in rule 8.104(a) governs.
(Subd (a) adopted effective January 1, 2008.)
(b) Motion for new trial
If any party serves and files a valid notice of intention to move for a new trial, the time to appeal from the judgment is extended for all parties as follows:
(1)If the motion is denied, until the earliest of:
(A)30 days after the superior court clerk or a party serves an order denying the motion or a notice of entry of that order;
(B)30 days after denial of the motion by operation of law; or
(C)180 days after entry of judgment.
(2)If any party serves an acceptance of a conditionally ordered additur or remittitur of damages pursuant to a trial court finding of excessive or inadequate damages, until 30 days after the date the party serves the acceptance.
Rule 8.278. Costs on appeal
2011 California Rules of Court
Rule 8.278. Costs on appeal
(a) Award of costs
(1)Except as provided in this rule, the party prevailing in the Court of Appeal in a civil case other than a juvenile case is entitled to costs on appeal.
(2)The prevailing party is the respondent if the Court of Appeal affirms the judgment without modification or dismisses the appeal. The prevailing party is the appellant if the court reverses the judgment in its entirety.
(3)If the Court of Appeal reverses the judgment in part or modifies it, or if there is more than one notice of appeal, the opinion must specify the award or denial of costs.
(4)In probate cases, the prevailing party must be awarded costs unless the Court of Appeal orders otherwise, but the superior court must decide who will pay the award.
(5)In the interests of justice, the Court of Appeal may also award or deny costs as it deems proper.
(b) Judgment for costs
(1)The Court of Appeal clerk must enter on the record, and insert in the remittitur, a judgment awarding costs to the prevailing party under (a)(2) or as directed by the court under (a)(3), (a)(4), or (a)(5).