Javidian v. Subaru of Am.

1

BAHRAM JAVIDIAN, Plaintiff and Appellant, v. SUBARU OF AMERICA, INC., Defendant and Respondent.

B322136

California Court of Appeals, Second District, Fourth Division

February 16, 2024

NOT TO BE PUBLISHED

APPEAL from an order of the Superior Court of Los Angeles County No. 20STCV24554 Michael P. Linfield, Judge. Reversed and remanded.

Strategic Legal Practices, Payam Shahian; Greines, Martin Stein & Richland, Cynthia E. Tobisman, Joseph V. Bui, and Anne Guidroz, for Plaintiff and Appellant.

Lehrman, Villegas, Chinery & Douglas, Jacqueline Bruce Chinery, and Robert A. Philipson, for Defendant and Respondent.

MORI J.

At a status conference, appellant Bahram Javidian (Javidian) and respondent Subaru of America, Inc. (Subaru) informed the trial court they had reached a settlement in principle but had not finalized it in writing. The court set a hearing on an order to show cause (OSC) why the case should not be dismissed in less than two months and ordered any motion for attorney fees to be filed and heard by or before the OSC hearing. Javidian filed his fee motion after the court-ordered deadline, and the court denied it as untimely. Javidian contends California Rules of Court, rule 3.1702,^[1] which governs claims for attorney fees in civil cases, entitled him to at least 60 days to file the motion. He argues it was improper to order him to file his motion before the entry of dismissal. We agree and reverse. On remand, the court shall consider the motion on the merits.

FACTUAL AND PROCEDURAL BACKGROUND

Javidian filed this action against Subaru for violations of the Song-Beverly Consumer Warranty Act (Civ. Code, § 1793.2) and negligent repair of his vehicle. In October 2021, the parties attended a mediation where Subaru offered to settle the action for $40,000, plus attorney fees, costs, and expenses. Javidian accepted the offer, and the parties agreed he would serve a Code of Civil Procedure section 998^[2] offer to memorialize the settlement terms. The same day, Javidian's counsel appeared at a final status conference and informed the trial court the parties were resolving the matter through settlement. The court vacated the trial date and set a status conference for November 10, 2021, to allow the parties to finalize the settlement terms.

At the November 10 status conference, at which there was no court reporter, the trial court set a hearing on an Order to Show Cause why the case should not be dismissed for January 5, 2022. The court further ordered that a "Motion for Attorneys [sic] Fees, if any, is to be filed and heard by the above-mentioned hearing date." This gave Javidian less than 40 days to finalize and execute the settlement documents and prepare and file a motion for fees.^[3] The court further instructed, "If the parties fail to have a signed settlement agreement within a week of today's Order, Plaintiff may come in Ex Parte and seek relief from today's Court Order."

The parties continued to negotiate the language of the section 998 offer until December 7, 2021, when Subaru returned the signed offer to Javidian. The offer included the following attorney fee provision: "[Subaru] will . . . pay Plaintiff's costs, expenses, and attorneys' fees, in accordance with Civil Code section 1794, subdivision (d), in an amount to be agreed upon by the parties, or if the parties cannot agree, to be determined by the Court upon properly noticed Motion. For the limited purposes of such Motion, defendant acknowledges and stipulates to the fact that Plaintiff is the 'prevailing party.'"

At the OSC on January 5, 2022, there was no court reporter present, but Javidian's counsel's declaration and the court's order show Javidian informed the trial court Subaru accepted the section 998 offer. Javidian's counsel requested the action not be dismissed yet because Javidian had not yet been paid his attorney fees and costs. The court dismissed Javidian's operative first amended complaint but retained jurisdiction pursuant to section 664.6 "to make orders to enforce any and all terms of settlement, including judgment." The parties waived notice, and neither they nor the court served a notice of entry of dismissal.

On April 29, 2022, Javidian filed a motion for attorney fees requesting $119,470.98 in fees. Subaru opposed the motion arguing it was untimely because it had not been filed by the court-ordered deadline of January 5, 2022. In reply, Javidian argued his motion was timely because when the court dismissed the action it retained jurisdiction to enforce the settlement agreement, which included a provision entitling Javidian to attorney fees.

At the hearing on May 24, 2022, Javidian's attorneys said it was their understanding the trial court's January 2022 order retaining jurisdiction to enforce the terms of the settlement superseded the court's previous order setting the January 5, 2022, deadline. They believed the January 2022 order was intended to address issues created by the length of time it took for the parties to reach a final written settlement and the fact that Javidian had not filed a motion for attorney fees by January 5. The trial court stated Javidian's counsel's understanding was mistaken. The court retained jurisdiction "simply to make sure that the checks had been sent, that Subaru's check didn't bounce .... [The] Court was quite clear that any attorney's fees were going to be heard before January 5th." Javidian's counsel requested a continuance to file a request for relief from the consequences of their mistaken interpretation. The trial court stated it was not going to grant a continuance, as no relief was warranted. Javidian's counsel pointed out that in November 2021, when the court-ordered deadline was imposed, "there was no settlement agreement document . . . signed in order to begin" preparing the fee motion. Counsel argued that the document signed thereafter in December 2022 provided that Javidian would be paid attorney fees as decided by noticed motion. Counsel asserted they were trying to enforce that provision, as they believed they could pursuant to the January order. The court reiterated that it ordered on November 10, 2021, that any motion for attorney fees needed to be heard on or before January 5, 2022, and denied the motion as untimely.

Javidian timely appealed the order.^[4]

DISCUSSION

Javidian argues the trial court did not have authority to set the January 5, 2022, deadline for him to file his motion for attorney fees, as it fell before entry of dismissal and thus violated rule 3.1702. Subaru contends the court was authorized to shorten the deadline to file the fee motion under rule 1.10, subdivision (c). It is undisputed that had the court not shortened the deadline, the fee motion would have been timely.^[5] We agree with Javidian the deadline set forth in rule 3.1702 applies in this case, making his motion timely.

A. Forfeiture

At the outset, we acknowledge Javidian did not raise rule 3.1702 below or argue the trial court did not have the authority to set the deadline to file a fee motion. Javidian asserts he believed the court's order dismissing the action and retaining jurisdiction to enforce the settlement agreement superseded the court's original order setting the deadline for filing the motion. Thus, arguments about the original order would have been superfluous. Subaru argues Javidian forfeited any argument based on rule 3.1702 on appeal.^[6]

A reviewing court will ordinarily not consider claims made for the first time on appeal which could have been but were not presented to the trial court. (Truck Ins. Exchange v. AMCO Ins. Co. (2020) 56 Cal.App.5th 619, 635.) However, application of the forfeiture rule is not automatic, and we have discretion to consider pure questions of law raised for the first time on appeal. (Cox v. Griffin (2019) 34 Cal.App.5th 440, 450 ["[C]ourts have discretion to consider a new theory on appeal if it involves a legal question based on undisputed facts"].) Because Javidian's appeal raises a purely legal issue, to which Subaru has provided a response, we exercise our discretion to consider his challenge to the court's order shortening the deadline for him to file his motion for attorney fees.

B. The Order Requiring Javidian to File a Fee Motion Before Entry of Dismissal Violated Rule 3.1702

1. Legal Principles and Standard of Review

"The Judicial Council . . . is the entity charged by the California Constitution with adopting statewide rules for court administration, practice, and procedure. (Cal. Const., art. VI, § 6; see also Gov. Code, § 68070, subd. (b); Cal. Rules of Court, rule 10.1.) The California Rules of Court '"have the force of statute to the extent that they are not inconsistent with legislative enactments and constitutional provisions."' [Citation.]" (Silverbrand v. County of Los Angeles (2009) 46 Cal.4th 106, 125.)

"The ordinary principles of statutory construction govern our interpretation of the California Rules of Court. [Citations.] Our objective is to determine the drafter's intent." (Alan v. American Honda Motor Co., Inc. (2007) 40 Cal.4th 894, 902.) We begin with the statutory language as it is generally the most reliable indicator of intent. (City of Alhambra v. County of Los Angeles (2012) 55 Cal.4th 707, 718-719; DeNike v. Mathew Enterprise, Inc. (2022) 76 Cal.App.5th 371, 378.) "'[I]f the statutory language may reasonably be given more than one interpretation, "'"courts may consider various extrinsic aids, including the purpose of the statute, the evils to be remedied, the legislative history, public policy and the statutory scheme encompassing the statute."'"'" (Catlin v. Superior Court (2011) 51 Cal.4th 300, 304.) "We are obligated to give a rule of court 'a reasonable and commonsense...