Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CV057542
Bamattre-Manoukian, ACTING P.J.
I. INTRODUCTION
The dispute between Louis DiFrancesco and Exatron, Inc. arising from their technology license agreement was resolved in a contractual arbitration. On May 31, 2007, this court affirmed the judgment confirming the arbitration award in favor of Exatron, which awarded Exatron $55,904 in attorney’s fees and $8,346 in costs. (Exatron, Inc. v. DiFrancesco (May 31, 2007, H030262) [nonpub. opn.] (Exatron I).)
On the court’s own motion, we take judicial notice of our prior opinion in this matter, (Exatron I, supra, H030262). Some of the background information in this opinion has been taken from our prior opinion.
Approximately nine months later, on February 25, 2008, Exatron filed a motion for supplemental attorney’s fees and expenses. The trial court denied as untimely both the request for attorney’s fees and expenses incurred post-arbitration through entry of judgment and the request for attorney’s fees and expenses incurred on appeal. The court found timely Exatron’s request for attorney’s fees and expenses incurred in enforcing the judgment and awarded Exatron $42,195 in attorney’s fees and $621 in costs.
Exatron thereafter moved under Code of Civil Procedure section 473, subdivision (b) (hereafter, section 473(b)) for relief from that portion of the trial court’s order denying its motion for supplemental attorney’s fees and expenses as untimely, on the ground that its counsel had made a reasonable mistake of law regarding the applicable time limits. The trial court denied Exatron’s section 473(b) motion.
All statutory references hereafter are to the Code of Civil Procedure unless otherwise indicated.
On appeal, Exatron argues that the trial court erred, both in denying its section 473(b) motion and in denying in part its motion for supplemental attorney’s fees and expenses as untimely. On cross-appeal, DiFrancesco contends that the trial court erred in awarding Exatron postjudgment attorney’s fees of $42,195. For the reasons stated below, we find no merit in the parties’ contentions on appeal and therefore we will affirm the trial court’s orders.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. Exatron I
In 1994, Exatron and DiFrancesco entered into a technology license agreement that provided for arbitration of disputes with JAMS. A dispute later arose concerning DiFrancesco’s attempt to unilaterally terminate the license agreement on the ground that Exatron’s payment of royalties was untimely. After an arbitration held in 2005, the arbitrator resolved all issues in favor of Exatron and ordered that the license agreement was to remain in full force and effect. The arbitrator also determined that Exatron was entitled to attorney’s fees and costs, in accordance with the license agreement, and awarded $55,904 in attorney’s fees and $8,346 in costs.
Trial court proceedings began on February 6, 2006, when Exatron filed a motion to confirm the arbitration award. On April 12, 2006, the trial court issued an order confirming the award and entering judgment. This court affirmed the judgment confirming the arbitration award in our opinion filed on May 31, 2007. (Exatron I, supra, H030262.)
B. Exatron’s Motion for Supplemental Attorney’s Fees and Expenses
On February 25, 2008, Exatron filed a motion for supplemental attorney’s fees and expenses. Exatron argued that it was entitled to recover the additional attorney’s fees and expenses that it had incurred as a result of the litigation to confirm the arbitration award, enforce the judgment, and defend the appeal. The basis for Exatron’s argument was the attorney’s fees clause in the parties’ license agreement, which provided that “ ‘In the event of a Dispute, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and expenses incurred in the action, Mediation, Arbitration or other proceeding.’ ” (Italics omitted.) The total amount sought by Exatron was $105,919, which included $95,886 in attorney’s fees and $4,533 in costs.
On April 7, 2008, Exatron filed a supplemental memorandum of points and authorities that addressed the trial court’s request, at a hearing held on March 27, 2008, that Exatron provide an allocation of the attorney’s fees and costs incurred to enforce the judgment. Exatron also responded to the trial court’s tentative ruling that two of Exatron’s requests for attorney’s fees and expenses were untimely, including the request for attorney’s fees and expenses incurred post-arbitration until the date judgment was entered and the request for attorney’s fees and expenses incurred on appeal.
C. DiFrancesco’s Opposition to the Motion
DiFrancesco filed opposition to Exatron’s motion for supplemental attorney’s fees and expenses on March 14, 2008. He contended that Exatron’s request for attorney’s fees and expenses incurred post-arbitration through entry of judgment was time-barred under the time limits imposed by the applicable California Rules of Court, former rules 870 and 870.2. Exatron’s request for attorney’s fees and expenses incurred in defending the appeal was also time-barred, according to DiFrancesco, under the time limits imposed by rules 8.276 and 3.1702(c), because Exatron had failed to file a memorandum of costs and a motion to fix attorney’s fees within 40 days after the notice of issuance of remittitur was mailed by the clerk of the appellate court.
Hereafter, all references to rules are to the California Rules of Court.
Further, DiFrancesco contended that Exatron was not entitled to recover attorney’s fees and costs incurred in enforcing the judgment because the judgment did not expressly include an award of attorney’s fees pursuant to section 1033.5, subdivision (a)(10)(A). DiFrancesco also complained that Exatron improperly sought recovery of attorney’s fees and expenses for work unrelated to the dispute that was the subject of the arbitration.
In his supplemental memorandum of points and authorities, filed on April 11, 2008, DiFrancesco challenged the amount of attorney’s fees and costs that Exatron claimed it had incurred to enforce the judgment.
D. The Trial Court’s Order Regarding Attorney’s Fees and Expenses
On April 25, 2008, the trial court issued its order granting in part and denying in part Exatron’s motion for supplemental attorney’s fees and expenses. The order states, “[Exatron’s] motion for supplemental attorneys’ fees and expenses is DENIED with regard to the arbitration and for attorney’s fees and expenses incurred post-arbitration through entry of judgment. (See [section] 1293.2.) [Exatron’s] motion for attorney’s fees and costs incurred on appeal is DENIED as untimely. (See [rule] 8.278; Moulin Electric Corp. v. Roach (1981) 120 Cal.App.3d 1067, 1070.) [Exatron’s] motion for attorney’s fees and expenses incurred for post-judgment enforcement is GRANTED in part. [Exatron’s] motion for attorney’s fees and costs of enforcing judgment is timely pursuant to [section] 685.080, subdivision (a). [¶] Based on its independent review of the billing records supplied by [Exatron’s] counsel, the Court determines that the correct, reasonable and necessary fees and expenses to enforce the judgment total $42,816 (including fees of $42,195 and costs of $621).”
E. Exatron’s Motion for Relief Under Section 473(b)
On May 27, 2008, Exatron filed a motion for relief pursuant to section 473(b) from the order denying in part its motion for supplemental attorney’s fees and expenses as untimely. Exatron emphasized that the time limits for attorney fee motions were not jurisdictional and argued that it was entitled to mandatory relief under section 473(b) from the late filing of its motion because its attorney had submitted a declaration of attorney fault.
In his declaration, also filed on May 27, 2008, Exatron’s attorney asserted that he was a very experienced litigator and that he had determined, from his research and legal analysis, that Exatron’s motion for supplemental attorney’s fees and expenses was timely filed. He explained that “[i]n this case, based on my experience and my understanding of the law, I determined that as the fees had already been awarded by the Arbitrator and included in the judgment, and there was no question that Exatron had been found to be the prevailing party, the normal time limits for motions in the trial Court for legal fees either did not apply or had already been satisfied by the earlier filed motion for legal fees. Since the arbitration agreement required such matters to be submitted to the Arbitrator, and the Arbitrator had already ruled, it appeared that the time limit for seeking supplemental fees was two years after they were incurred. [¶]... [¶] Since Exatron had prevailed in the Judgment, there was no need to relitigate the merits of the fee award; only to supplement it.” Exatron’s attorney also stated, “Based on the Court’s ruling on April 25, 2008, if the Court’s determination of the law was correct, my analysis was mistaken.”
In the alternative, Exatron argued that it was entitled to discretionary relief under section 473(b) because its attorney had made a reasonable mistake of law. According to Exatron, its attorney reasonably believed that the time limits for filing postjudgment attorney fee motions in the trial court did not apply under the circumstances of this case, where the arbitrator had already awarded attorney’s fees to Exatron and Exatron’s motion merely sought to supplement the existing award by recovering the attorney’s fees incurred due to DiFrancesco’s failure to satisfy the judgment.
F. DiFrancesco’s Opposition to the Section 473(b) Motion
DiFrancesco opposed Exatron’s section 473(b) motion for relief from the late filing of its motion for supplemental attorney’s fee and expenses, arguing that Exatron was not entitled to either mandatory or discretionary relief. According to DiFrancesco, the provision of section 473(b) authorizing mandatory relief where an attorney files a declaration of fault applies only to a default entered by the court clerk, a default judgment, or a dismissal, and does not apply to a motion for attorney’s fees and costs.
As to discretionary relief, DiFrancesco disputed Exatron’s contention that its attorney had made a reasonable mistake of law that excused the untimely filing of its motion for supplemental attorney’s fees and costs. DiFrancesco asserted that the pertinent California Rules of Court were “clear and unambiguous” regarding the time limits for filing a motion for attorney’s fees after entry of judgment or after a decision on appeal. He asserted that rule 3.1702(b)(1) expressly provides that a motion for attorney’s fees for services rendered through judgment must be filed within the time provided by rules 8.104 and 8.108 for the time for filing a notice of appeal, while rule 3.1702(c) expressly provides that a motion claiming attorney’s fees on appeal pursuant to a contract must be filed within the time for serving and filing a memorandum of costs.
G. The Trial Court’s Order Denying Section 473(b) Relief
On June 13, 2008, the trial court denied Exatron’s motion for relief under section 473(b) from the late filing of its motion for supplemental attorney’s fees and expenses. The order states, “[Exatron] is not entitled to relief based on the filing of an attorney affidavit of fault because the court is not being asked to vacate a default judgment or dismissal. (Huh v. Wang (2007) 158 Cal.App.4th 1406.) Although [Exatron’s] [section] 473, subdivision (b) motion is timely, the court finds that [Exatron] is not entitled to the relief requested based on its attorney’s mistake of law.”
III. DISCUSSION
A. Exatron’s Appeal
We will begin our analysis by addressing Exatron’s contentions on appeal. Exatron contends that the trial court erroneously determined, in its order of April 25, 2008, that Exatron’s motion for supplemental attorney’s fees and expenses was untimely as to two requests: (1) the request for attorney’s fees and expenses incurred post-arbitration through entry of judgment; and (2) the request for attorney’s fees and expenses incurred on appeal. Exatron also contends that the trial court abused its discretion in denying its motion under section 473(b) for relief from the order denying in part its motion for supplemental attorney’s fees and expenses as untimely. We will address each of Exatron’s contentions in turn, followed by our evaluation of DiFrancesco’s contentions on cross-appeal.
1. Attorney’s Fees and Expenses Incurred Post-Arbitration through Entry of Judgment
On appeal, Exatron argues that where, as here, the arbitrator has awarded attorney’s fees and costs to the prevailing party, upon motion by the prevailing party in a dispute arising from a contract with an attorney’s fees clause, the time limits set forth in the California Rules of Court for claiming attorney’s fees and costs do not apply.
Exatron maintains that because its “initial fees motion” was timely filed with the arbitrator, who determined that Exatron was entitled to attorney’s fees and costs as the prevailing party, its “original fee request necessarily included all future legal services to enforce the [arbitration] Award, even though they had not yet been incurred.” According to Exatron, “[s]ince Exatron’s right to and amount of legal fees was already determined by the Arbitrator (the trial court here), there was no need to file a costs bill or noticed motion within the time periods required by [rule] 3.1702 and it did not apply, or it was fully complied with in the Arbitration.”
DiFrancesco observes that Exatron has failed to provide any authority to support its contention that the arbitrator’s award of attorney’s fees and costs exempted Exatron from compliance with the time limits provided by the California Rules of Court for a motion for attorney’s fees and costs incurred post-arbitration through entry of judgment. He argues that Exatron’s request for attorney’s fees and expenses incurred post-arbitration through entry of judgment was subject to the time limits set forth in former rule 870.2 (now rule 3.1702), which was in effect until December 31, 2006. Because Exatron did not file its motion for supplemental attorney’s fees and expenses within 60 days of April 13, 2006, the date the notice of entry of judgment was mailed, DiFrancesco contends that the request was untimely under former rule 870.2.
“Rule 3.1702, formerly rule 870.2, was renumbered and amended effective January 1, 2007.” (Carpenter v. Jack In The Box Corp. (2007) 151 Cal.App.4th 454, 458.)
For several reasons, we agree with DiFrancesco that the trial court properly determined that Exatron’s motion for supplemental attorney’s fees and expenses was untimely filed as to the request for attorney’s fees and expenses incurred post-arbitration through entry of judgment. First, we are not convinced by Exatron’s contention that the arbitrator’s award of attorney’s fees and costs exempted it from compliance with the time limits for a motion for attorney’s fees and costs incurred post-arbitration through entry of judgment. As DiFrancesco correctly notes, Exatron has not provided any authority for the proposition that the time limits set forth in the rules governing a request for attorney’s fees and costs in the trial court do not apply where the arbitrator has awarded attorney’s fees and costs to the prevailing party in a contract dispute.
Second, we have determined, through our independent review of the statutory framework for arbitration and the pertinent rules, that certain time limits were applicable to Exatron’s motion for attorney’s fees and expenses incurred post-arbitration through entry of judgment. (Mercury Interactive Corp. v. Klein (2007) 158 Cal.App.4th 60, 81 [appellate court’s review of the meaning and application of statutes and rules is de novo].)
The statutory framework for arbitration includes section 1293.2, which authorizes the trial court to award costs “upon any judicial proceeding under this title as provided in Chapter 6 (commencing with Section 1021) of Title 14 of Part 2 of this code.” A petition to confirm an arbitration award, pursuant to section 1285, is a judicial proceeding within the scope of section 1293.2. (Carole Ring & Associates v. Nicastro (2001) 87 Cal.App.4th 253, 260.) Awardable costs may include attorney’s fees where attorney fees are authorized by contract, pursuant to section 1033.5, subdivision (a)(10)(A). Attorney’s fees allowable as costs under section 1033.5, subdivision (a)(10) “shall be fixed either upon a noticed motion or upon entry of default judgment, unless otherwise provided by stipulation of the parties.” (§ 1033.5, subd. (c)(5); Russell v. Trans Pacific Group (1993) 19 Cal.App.4th 1717, 1723.)
Section 1285 provides, “Any party to an arbitration in which an award has been made may petition the court to confirm, correct or vacate the award. The petition shall name as respondents all parties to the arbitration and may name as respondents any other persons bound by the arbitration award.”
Section 1033.5, subdivision (a)(10)(A) provides, “The following items are allowable as costs under Section 1032: [¶]... [¶] Attorney fees, when authorized by any of the following: [¶] Contract.”
In the present case, Exatron filed a motion to confirm the arbitration award and the trial court issued an order confirming the arbitration award and entering judgment in Exatron’s favor in 2006. At that time, former rule 870.2 governed motions in the trial court for attorney’s fees authorized by contract. (Saben, Earlix & Associates v. Fillet (2005) 134 Cal.App.4th 1024, 1029.) We note that “Judicial Council rules have the force of statutes to the extent that they are not inconsistent with legislative enactments or constitutional provisions. [Citation.]” (Russell v. Trans Pacific Group, supra, 19 Cal.App.4th at pp. 1723-1724.) Further, it has been held that the procedural requirements for claiming costs set forth in former section 870.2, including time limits, “ ‘while not jurisdictional, are mandatory.’ [Citations.]” (Id. at p. 1726.) Therefore, “the trial court does not have discretion to disregard noncompliance.” (Ibid.)
Former rule 870.2(b)(1) required that a motion for attorney’s fees incurred through entry of judgment be filed and served within the time for filing a notice of appeal. (Los Angeles Times v. Alameda Corridor Transportation Authority (2001) 88 Cal.App.4th 1381, 1389.) Former rule 870.2(b)(1) provided, “(1) A notice of motion to claim attorney fees for services up to and including the rendition of judgment in the trial court... shall be served and filed within the time for filing a notice of appeal under [former] rules 2 and 3.
In 2006, former rule 2(a) provided in pertinent part that “Unless a statute or rule 3 provides otherwise, a notice of appeal must be filed on or before the earliest of: [¶] (1) 60 days after the superior court clerk mails the party filing the notice of appeal a document entitled ‘Notice of Entry’ of judgment or a file-stamped copy of the judgment, showing the date either was mailed; [¶] (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 a proof of service; or [¶] (3) 180 days after entry of judgment.” Former rule 3 also provided for extensions of time to appeal on grounds not applicable here.
Former rule 870.2 also included two provisions allowing extension of the time to file the attorney fees motion. Subdivision (b)(2) of former rule 870.2 provided that the parties could extend the subdivision (b)(1) time limit by stipulation, while subdivision (d) authorized the trial court to extend the time to file the motion upon a showing of good cause
The record reflects that Exatron served a document entitled “NOTICE OF ENTRY OF JUDGMENT” on April 13, 2006, and there was no stipulation by the parties or superior court order extending the time to file an attorney’s fees motion. Therefore, under former rule 870.2(b)(1), the time limit for filing a motion for attorney’s fees incurred post-arbitration through the entry of judgment was 60 days from the service of the notice of entry of judgment on April 13, 2006. Since Exatron’s motion for attorney’s fees incurred post-arbitration through entry of judgment was not filed until much later, on February 25, 2008, the motion was untimely.
Exatron’s reliance on Crespin v. Shewry (2004) 125 Cal.App.4th 259 (Crespin) as support for its argument that former rule 870.2 did not apply to its motion for supplemental attorney’s fees is misplaced. In Crespin, the appellate court considered the issue of whether former rule 870.2 set a time limit on a motion for attorney’s fees incurred in litigating a postjudgment motion for modification of a permanent injunction. (Crespin, supra, 125 Cal.App.4th at pp. 263-264.) The court determined that “rule 870.2 was not intended to cover fee applications for postjudgment litigation in the trial court. It was directed to the vastly more frequent problem of pre-judgment fees.” (Id. at p. 268.) Crespin therefore does not apply in the present case, where Exatron has claimed attorney’s fees and expenses incurred in litigating its motion to confirm the arbitration award through entry of judgment, and has not claimed any attorney’s fees and expenses for litigating a postjudgment motion.
Finally, we consider the timeliness of Exatron’s claim for expenses incurred post-arbitration through entry of judgment. Former rule 870(a)(1) provided a time limit of 15 days from the date of mailing of the notice of entry of judgment to file and serve a memorandum of costs, absent a stipulation or trial court order allowing an extension of time as authorized by former rule 870(b)(3). Since Exatron’s motion was filed more than 15 days after the notice of entry of judgment was mailed on April 13, 2006, its claim for expenses incurred post-arbitration through entry of judgment was also untimely.
Former rule 870(a)(1) provided in pertinent part, “A prevailing party who claims costs shall serve and file a memorandum of costs within 15 days after the date of mailing of the entry of judgment....”
Former rule 870(b)(3) provided in pertinent part, “The party claiming costs and the party contesting costs may agree to extend the time for serving and filng the cost memorandum and a motion to strike or tax costs.”
2. Attorney’s Fees and Expenses Incurred On Appeal
With respect to that portion of its motion for supplemental attorney’s fees and expenses claiming attorney’s fees and expenses incurred on appeal, Exatron again argues that it was exempt from compliance with any rules governing the procedure for motions for appellate attorney’s fees and costs. According to Exatron, its “original fee request” to the arbitrator included “all future legal services to enforce the Award, even though they had not yet been incurred. Exatron need not have applied for fees for appellate services under another statute for appellate fees or costs. [Exatron’s] application for fees had already been timely made and awarded.”
DiFrancesco responds that the language in former rule 870.2 and rule 3.1702 provides that the procedure for claiming attorney’s fees on appeal is mandatory, and therefore Exatron’s failure to comply with the time limits set forth in those rules was fatal to its claim for attorney’s fees and expenses incurred on appeal.
This court has previously stated that, following an appeal of an arbitration award that included an award of attorney’s fees to the prevailing party, a “determination of the reasonable amount of appellate fees and costs ‘rests most appropriately with the trial court on a showing of nature of the services and the time involved. [Citations.]’ [Citations.]” (Ajida Technologies, Inc. v. Roos Instruments, Inc. (2001) 87 Cal.App.4th 534, 552, fn. 11.) We therefore determine that Exatron was required to comply with the procedure and time limits set forth in rule 3.1702(c) for a motion to claim attorney’s fees on appeal.
Rule 3.1702(c) provides that “A notice of motion to claim attorney’s fees on appeal... under a statute or contract requiring the court to determine entitlement to the fees, the amount of the fees, or both, must be served and filed within the time for serving and filing the memorandum of costs under rule 8.278(c)(1).” Rule 8.278(c)(1) provides, “Within 40 days after the clerk sends notice of the issuance of the remittitur, a party claiming costs awarded by a reviewing court must serve and file in the superior court a verified memorandum of costs under rule 3.1700.” The time for filing a motion for attorney’s fees on appeal may be extended by stipulation of the parties (rule 3.1702(c)(2)) or by the trial court upon a showing of good cause (rule 3.1702(d)).
Therefore, pursuant to rules 3.1702(c) and 8.278(c), Exatron was required, in order to recover its appellate attorney’s fees and expenses, to serve and file a notice of motion for attorney’s fees on appeal and a memorandum of costs on appeal within 40 days after the clerk of this court sent notice of the issuance of the remittitur. On our own motion, we take judicial notice of that portion of the record in Exatron I, supra, H030262, indicating that the clerk of this court sent notice of the issuance of the remittitur on July 31, 2007. (Evid. Code, § 452, subd. (d).) Since Exatron’s notice of motion for supplemental attorney’s fees and expenses, including attorney’s fees and costs on appeal, was not filed until nearly seven months later, on February 25, 2008, and the time to file was not extended by stipulation or court order, the motion was untimely.
Exatron, however, rejects the application of the rule 3.1702 time limit to its motion, contending that rule 3.1702 only applies to an award of costs by the reviewing court and not to a claim for attorney’s fees pursuant to contract. We disagree, based on the language of rule 3.1702(c) expressly providing a time limit for a “motion to claim attorney’s fees on appeal.” Additionally, “it has been recognized that rule 870.2 [now 3.1702] applies generally to all applications for attorney fees incurred on postjudgment appeals. [Citation.]” (In re Marriage of Freeman (2005) 132 Cal.App.4th 1, 9 [rejecting an exception for family law cases].)
For these reasons, we determine that the trial court did not err in denying as untimely Exatron’s motion for supplemental attorney’s fees and expenses incurred post-arbitration through judgment and on appeal. We next address Exatron’s contention that the trial court erred in failing to grant relief under section 473(b) from the late filing of the motion. Although the time limits for an attorney’s fees motion are mandatory, that “does not mean that the trial court is deprived of jurisdiction to grant relief under section 473... upon a proper showing of mistake, inadvertence, surprise or excusable neglect. [Citations.]” (Russell v. Trans Pacific Group, supra, 19 Cal.App.4th at p. 1726, fn. omitted; Lee v. Wells Fargo Bank (2001) 88 Cal.App.4th 1187, 1193.)
3. Exatron’s Section 473(b) Motion
Following the trial court’s April 25, 2008 order denying in part its motion for supplemental attorney’s fees and expenses as untimely, Exatron filed a motion for relief under section 473(b) on the ground of mistake of law. On appeal, Exatron challenges the trial court’s order denying the motion because the court found that that Exatron was not entitled to either mandatory or discretionary relief under section 473(b).
a. Mandatory Relief Under Section 473(b)
We first consider Exatron’s contention that it is entitled to mandatory relief. Exatron reiterates its argument below that its submission of an attorney declaration of fault as to the mistake of law regarding the time limits for filing its motion entitled it to mandatory relief under the following provision of section 473(b): “Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect.”
While Exatron acknowledges that the mandatory relief provision of section 473(b) expressly applies where a party’s attorney submits an affidavit or declaration attesting to a mistake that resulted in a default being entered by the clerk, a default judgment, or a dismissal, Exatron contends that the order denying in part its motion for supplemental attorney’s fees and expenses is analogous to a default and therefore mandatory relief is available.
DiFrancesco disagrees, emphasizing that a mandatory relief argument similar to Exatron’s was rejected by this court in Huh v. Wang, supra, 158 Cal.App.4th at page 1417. In that decision, we applied the de novo standard of review for statutory interpretation to the issue of whether the mandatory relief provision of section 473(b) applied to an attorney’s error in failing to oppose a motion for summary judgment. (Id. at pp. 1413, 1418.) We agreed with “the cogent analysis in [English v. IKON Business Solutions, Inc. (2001) 94 Cal.App.4th 130, 144], which is faithful to legislative intent and consistent with established principles of statutory construction. As the English court said: ‘It is not an appellate court’s task nor, indeed, its prerogative, when interpreting a statute, to extend the scope of the statute to encompass situations “analogous” to those the statute explicitly addresses. Rather, an appellate court’s task is simply to determine what the Legislature meant by the words it used, relying first and foremost on the words themselves.’ [Citation.] Where the statutory language is unambiguous, its plain meaning controls. [Citation.] Here, the statutory language is unequivocal. ‘As expressly worded, section 437(b) applies only to relief sought in response to defaults, default judgments or dismissals.’ [Citation.] Summary judgments are neither defaults, nor default judgments, nor dismissals. [Citation.] The explicit statutory language of section 437(b) thus ‘provides no basis for extending the mandatory provision’ to such judgments. [Citation.] In the words of Justice Epstein, ‘to read the mandatory provision of... section 473 to apply whenever a party loses his or her day court due to attorney error goes far beyond anything the Legislature has done.’ [Citation.]” (Huh v. Wang, supra, 158 Cal.App.4th at p. 1417.)
We therefore concluded in Huh v. Wang that the mandatory relief provision of section 473(b) did not provide a basis for granting relief from a summary judgment entered as a result of an attorney’s mistake. (Huh v. Wang, supra, 158 Cal.App.4th at p. 1418.) In the present case, we decline Exatron’s invitation to limit the application of Huh v. Wang to summary judgments. Our decision in Huh v. Wang was based upon our interpretation of the mandatory relief provision of section 473(b), which we narrowly construed to apply “ ‘only to relief sought in response to defaults, default judgments, or dismissals.’ [Citations.]” (Ibid.; see also Hossain v. Hossain (2007) 157 Cal.App.4th 454, 458 [rejecting application of the mandatory relief provision to an untimely motion]; Prieto v. Loyola Marymount University (2005) 132 Cal.App.4th 290 [rejecting application of the mandatory relief provision to the failure to oppose a summary judgment motion]; Tackett v. City of Huntington Beach (1994) 22 Cal.App.4th 60, 65 [rejecting application of the mandatory relief provision to an untimely government claim].)
Since Exatron seeks relief in response to an order denying in part its motion for supplemental attorney’s fees and expenses, and not in response to a default, default judgment, or dismissal, we determine that the mandatory relief provision of section 473(b) does not apply here even though Exatron provided an attorney’s declaration of fault regarding the mistake of law that resulted in the untimely filing of the motion.
Exatron’s additional argument, that mandatory relief is available because it was denied its “day in court,” meaning that it was denied a decision on the merits with respect to its request for attorney’s fees and expenses incurred through entry of judgment and on appeal, also lacks merit. Exatron relies on decisions (e.g., Yeape v. Leake (1997) 60 Cal.App.4th 591, Avila v.Chua (1997) 57 Cal.App.4th 860) that determined that mandatory relief under section 473(b) is available where the trial court’s order was the procedural equivalent of a default. In Huh v. Wang, we disagreed with those decisions because they extended the mandatory relief provision of section 473(b) beyond its express terms. (Huh v. Wang, supra, 158 Cal.App.4th at pp. 1415-1416 [discussing Avila v. Chua, supra, 57 Cal.App.4th 860; Yeape v. Leake, supra, 60 Cal.App.4th 591].) We will follow our previous decision in Huh v. Wang and again narrowly construe the mandatory relief provision of section 473(b) to expressly apply only to relief sought from a default, default judgment, or dismissal.
b. Discretionary Relief Under Section 473(b)
Alternatively, Exatron contends that it is entitled to relief under the discretionary relief provision of section 473(b), which states, “The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.”
Exatron insists that its attorney made a reasonable mistake of law warranting discretionary relief when he determined that the “filing time requirements did not exist specifically under [section] 1293.2 because no such time requirement had been set forth by that statute and there is continuing jurisdiction of the Superior Court after the Petition to confirm the award had been filed.” Additionally, Exatron believes that its attorney reasonably determined that the only applicable time limit for its attorney’s fees motion was the two-year time limit imposed by section 685.070, subdivisions (a)(6) and (b) for a claim of attorney’s fees incurred by a judgment creditor in enforcing the judgment. Exatron further believes that the lack of any prejudice to DiFrancesco as a result of the late filing of Exatron’s motion for supplemental attorney’s fees and expenses compels discretionary relief.
We understand Exatron’s reference to “the two year deadline in [section] 685.040” to mean the two-year time limit set forth in section 685.070, subdivisions (a)(6) and (b) for a claim of attorney’s fees incurred by a judgment creditor in enforcing the judgment.
DiFrancesco disputes Exatron’s contention that its attorney made a reasonable mistake of law. He argues that an attorney’s mistake of law is only a valid ground for discretionary relief under section 473(b) where the legal issue involved was complex and debatable, and not where, as here, the time limits for filing a motion for attorney’s fees after entry of judgment and after appeal were clear and unambiguous.
The standard of review that applies to the trial court’s ruling on a motion for discretionary relief under section 473(b) is abuse of discretion. (Huh v. Wang, supra, 158 Cal.App.4th at p. 1419.) “But ‘because the law strongly favors trial and disposition on the merits, any doubts in applying section 473 must be resolved in favor of the party seeking relief from default [citations.]’ [Citations]. For that reason, ‘a trial court order denying relief is scrutinized more carefully than an order permitting trial on the merits.’ [Citation.]” (Ibid.)
To obtain discretionary relief on the ground of attorney error, the evidence proffered with the section 473(b) motion must show that the error was excusable. (Huh v. Wang, supra, 158 Cal.App.4th at p. 1423.) “Relevant factors in assessing counsel error include: ‘(1) the nature of the mistake or neglect; and (2) whether counsel was otherwise diligent in investigating and pursuing the claim.’ [Citation.]” (Ibid.) Where the attorney’s error consists of a mistake of law, courts consider two factors in determining whether a mistake of law is excusable under section 473(b), including “the reasonableness of the misconception and the justifiability of the failure to determine the correct law. [Citations.]” (State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 611 (State Farm).)
Thus, an honest mistake of law is a valid ground for discretionary relief under section 473(b) where “the legal problem posed ‘ “is complex and debatable.” ’ [Citations.]” (State Farm, supra, 90 Cal.App.4th at p. 611.) Additionally, where an attorney’s mistake of law arose from an area of law that is unsettled, the mistake may be excusable. (McCormick v. Board of Supervisors (1988) 198 Cal.App.3d 352, 360; Brochtrup v. INTEP (1987) 190 Cal.App.3d 323, 332.) On the other hand, where the alleged mistake of law could have been cleared up by “elementary legal research,” the trial court does not abuse its discretion in denying discretionary relief. (Anderson v. Sherman (1981) 125 Cal.App.3d 228, 238.)
In the present case, we determine that the time limits applicable to a motion for attorney’s fees and costs incurred post-arbitration through entry of judgment and on appeal may be ascertained through “elementary legal research,” consisting of consulting a treatise on civil procedure (see, e.g., 7 Witkin, Cal. Procedure (5th ed., 2008) Judgment, § 301, p. 897; Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2007) ¶ 14:122:8, p. 14-33) and reviewing the applicable statutes and rules (as discussed above). Therefore, we find that Exatron’s counsel did not make a mistake of law involving a legal issue that was complex or debatable (State Farm, supra, 90 Cal.App.4th at p. 611), arose from unsettled area of law (McCormick v. Board of Supervisors, supra, 198 Cal.App.3d at p. 360), or was otherwise reasonable (State Farm, supra, 90 Cal.App.4th at p. 611).
Since the mistake of law made by Exatron’s attorney did not constitute a valid ground for discretionary relief under section 473(b), we conclude that the trial court did not abuse its discretion in denying Exatron’s section 473(b) motion for relief from the untimely filing of its motion for supplemental attorney’s fees and expenses.
B. DiFrancesco’s Cross-Appeal
On cross-appeal, DiFrancesco challenges the trial court’s postjudgment award to Exatron of $42,195 in attorney’s fees incurred in enforcing the judgment. DiFrancesco does not contest the amount of the award. Instead, he argues that the trial court was not authorized to award any attorney’s fees incurred in enforcing the judgment because the judgment did not expressly include an award of attorney’s fees pursuant to section 1033.5, subdivision (a)(10)(A). According to DiFrancesco, the trial court confirmed the arbitrator’s award of costs under sections 1283.4 and 1283.2, and did not make an award of costs under section 1293.2, which incorporates by reference section 1033.5, subdivision (a)(10)(A).
Section 1283.4 provides, “The award shall be in writing and signed by the arbitrators concurring therein. It shall include a determination of all the questions submitted to the arbitrators the decision of which is necessary in order to determine the controversy.”
Section 1283.2 provides, “Except for the parties to the arbitration and their agents, officers and employees, all witnesses appearing pursuant to subpoena are entitled to receive fees and mileage in the same amount and under the same circumstances as prescribed by law for witnesses in civil actions in the superior court. The fee and mileage of a witness subpoenaed upon the application of a party to the arbitration shall be paid by such party. The fee and mileage of a witness subpoenaed solely upon the determination of the neutral arbitrator shall be paid in the manner provided for the payment of the neutral arbitrator’s expenses.” DiFrancesco may have intended to refer to section 1284.2, which provides, “Unless the arbitration agreement otherwise provides or the parties to the arbitration otherwise agree, each party to the arbitration shall pay his pro rata share of the expenses and fees of the neutral arbitrator, together with other expenses of the arbitration incurred or approved by the neutral arbitrator, not including counsel fees or witness fees or other expenses incurred by a party for his own benefit.”
Exatron disputes DiFrancesco’s contention, asserting that pursuant to sections 685.040 and 685.070, it is entitled to attorney’s fees incurred in enforcing the judgment because the underlying judgment included an award of attorney’s fees to Exatron as the judgment creditor. Section 685.040 provides, “The judgment creditor is entitled to reasonable and necessary costs of enforcing a judgment. Attorney’s fees incurred in enforcing a judgment are not included as costs collectible under this title unless otherwise provided by law. Attorney’s fees incurred in enforcing a judgment are included as costs collectible under this title if the underlying judgment includes an award of attorney’s fees to the judgment creditor pursuant to subparagraph (A) of paragraph (10) of subdivision (a) of Section 1033.5.” Section 685.070, subdivision (a)(6) provides, “The judgment creditor may claim under this section the following costs of enforcing a judgment: [¶]... [¶] Attorney’s fees, if allowed by Section 685.040.”
We will begin our analysis by determining the applicable standard of review. In general, the standard of review for an award of attorney’s fees is abuse of discretion. (Jaffe v. Pacelli (2008) 165 Cal.App.4th 927, 934.) However, where, as here, the issue is whether the trial court was authorized pursuant to section 685.040 to award attorney’s fees incurred in enforcing the judgment, the standard of review for that legal issue is de novo. (Ibid.)
The general rule is that where a party is statutorily entitled to reasonable attorney’s fees, the attorney’s fees incurred in enforcing a judgment, even if the judgment itself was only for attorney’s fees, are recoverable as costs. (Miller v. Givens (1994) 30 Cal.App.4th 18, 21-22.) A party is statutorily entitled under section 685.040 to an award of postjudgment attorney fees incurred in enforcing the judgment if two requirements are met: “(1) the fees must have been incurred to ‘enforce’ a judgment; and (2) the underlying judgment had to include an award of attorney fees pursuant to [section] 1033.5, subdivision (a)(10)(A), which provides that attorney fees may be awarded when authorized by contract.” (Jaffe v. Pacelli, supra, 165 Cal.App.4th at p. 934.)
As to the first requirement, there is no dispute in the present case that the trial court awarded attorney’s fees incurred by Exatron in enforcing the judgment. Regarding the second requirement, we have already determined, as discussed above, that in a proceeding to confirm an arbitration award, costs are awarded as a matter of law. (§ 1293.2; Carole Ring & Associates v. Nicastro, supra, 87 Cal.App.4th at p. 260.) Costs include attorney’s fees where authorized by contract, pursuant to section 1033.5, subdivision (a)(10)(A). Here, the parties’ licensing agreement included an attorney’s fees provision authorizing an award of reasonable attorney’s fees to the prevailing party in a dispute under the agreement. Therefore, we believe that the underlying judgment implicitly included an award of attorney’s fees to Exatron, the judgment creditor, pursuant to section 1033.5, subdivision (a)(10)(A). Consequently, although the underlying judgment did not expressly award attorney’s fees pursuant to section 1033.5, subdivision (a)(10)(A), under 685.040 Exatron was entitled to an award of attorney’s fees incurred in enforcing the judgment.
The two decisions on which DiFrancesco relies for a contrary result are distinguishable or otherwise inapplicable, since in both cases the underlying judgment did not include an award of attorney’s fees. In Dickinson v. Kaiser Foundation Hospitals (1980) 112 Cal.App.3d 952, the arbitration award in a medical malpractice action expressly provided that each party was to bear his or her own attorney’s fees, costs and expenses. The trial court concluded that although the plaintiff had prevailed at arbitration, he was not entitled to costs on the arbitration. (Id. at p. 954.) There was no indication that the parties’ arbitration agreement included an attorney’s fees provision nor was any issue raised as to an award of attorney’s fees under section 685.040.
Our case is similarly distinguishable from Imperial Bank v. Pim Electric, Inc. (1995) 33 Cal.App.4th 540. In that decision the judgment did not include an award of attorney’s fees and there was nothing in the record to indicate that the trial court had awarded fees. The appellate court determined [t]hat “the absence of any fee award in the underlying judgment precludes the recovery of fees as costs in the trial court for enforcing the money judgment, and necessarily precludes the award of attorney fees in this appeal.” (Id. at p. 558.)
For these reasons, we conclude that the trial court did not err in awarding Exatron $42,195 in attorney’s fees incurred in enforcing the judgment.
IV. DISPOSITION
The order of April 25, 2008, granting in part Exatron’s motion for supplemental attorney’s fees and expenses, and the order of June 13, 2008, denying Exatron’s motion for relief under section 473(b), are affirmed. Each party is to bear its own costs on appeal.
WE CONCUR: MIHARA, J., MCADAMS, J.