Betouliere v. Bauman

Filed 2/23/07 Betouliere v. Bauman CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

This is the second time this case has been before this court. In 2005, this court reversed a post-judgment order awarding respondents Paul and Susan Betouliere attorney's fees in the amount of $139,389. (Betouliere v. Bauman (March 7, 2005, B174320) [nonpub. opn.] [hereafter "Bauman I"].) We held that the Betoulieres' motion for attorney's fees, filed two years after entry of the judgment, was untimely. We affirmed the trial court's order striking the Betoulieres' cost bill in the amount of $29,693, on the ground that it was untimely as well.

Following issuance of our remittitur, the Betoulieres sought relief in the trial court, pursuant to Code of Civil Procedure section 473, from the time limits imposed for filing fee motions and costs bills.^[1] (See Cal. Rules of Court, former rules 870.2 and 870.)^[2] The trial court granted the Betoulieres' motion, ruling that discretionary relief under section 473 was appropriate and that good cause existed under rules 870.2 and 870 for extending the time for filing the fee motion and cost bill. The trial court denied the motion filed by Verne Bauman and Cherie Hanley (hereafter "Bauman"), seeking attorney's fees and costs for prevailing in the prior appeal, Bauman I.

Bauman appeals, contending that the trial court erred by (1) granting the Betoulieres' motion for relief under section 473; (2) denying Bauman's subsequent motion for reconsideration; and (3) denying Bauman's motion for attorney's fees and costs for prevailing in Bauman I. We reverse and remand with instructions.

Factual and Procedural Background

The factual and procedural background of this case is more fully set forth in our prior opinion in Bauman I. We take judicial notice of the opinion and the record in the prior appeal. (Evid. Code, 459, 452.)

In 1999, Bauman agreed to sell real property to the Betoulieres. The parties entered into a written agreement setting forth the terms of the sale. The contract provided that in any action or proceeding arising out of the agreement, the prevailing buyer or seller "shall be entitled to reasonable attorney's fees and costs from the non-prevailing buyer or seller."

In April of 2000, Bauman notified the Betoulieres that they were canceling the escrow. The Betoulieres then filed suit against Bauman and two other parties involved with the parcel, Astra Investment Capital, LLC (hereafter "Astra"), and Cohen. The amended complaint asserted six causes of action against Bauman:  (1) breach of contract; (2) specific performance; (3) declaratory relief; (4) imposition of a constructive trust for monies advanced and a preliminary injunction preventing encumbrances on the vacant parcel; (5) intentional misrepresentation; and (6) accounting. The amended complaint also asserted in the seventh and eighth causes of action two claims against Astra and Cohen: (1) quiet title (interpretation of an easement running across Astra's property); and (2) intentional interference with the contractual relations of Bauman and the Betoulieres.

Bauman answered the complaint and filed a cross-complaint against the Betoulieres for declaratory relief, injunctive relief, and trespass. Likewise, Astra and Cohen answered the Betoulieres' complaint and filed a cross-complaint against the Betoulieres for trespass, seeking compensatory and punitive damages.

In August of 2001, a jury trial was conducted on the parties' legal claims. The trial court bifurcated the remaining equitable claims, presumably for a subsequent bench trial, and the Betoulieres dismissed their fifth cause of action for intentional misrepresentation.

On August 20, 2001, the jury returned special verdicts finding Bauman liable to the Betoulieres for breach of contract in the amount of $384,200. The jury rejected Bauman's trespass claim, but found in favor of Astra and Cohen on their trespass claim. The jury rejected the Betoulieres' claim against Cohen for intentional interference with contractual relations. The parties then elected to waive a jury trial on the amount of the punitive damages owed Astra.

On September 11, 2001, the Betoulieres informed the trial court that, in lieu of collecting their damages award against Bauman, they elected the remedy of specific performance. Bauman's counsel informed the court that the only remaining issue involving Bauman was the amount of attorney's fees owed by Bauman. The Betoulieres' counsel informed the court that he would file a motion for attorney's fees and costs within 10 days, and inquired whether escrow should close on the transaction before the court had ruled on the fee motion. A discussion then ensued between the trial court and counsel as to whether a bench trial was needed on the remaining unresolved causes of action asserted by the Betoulieres against Bauman (the second cause of action for specific performance, the third cause of action for declaratory relief, the fourth cause of action for a constructive trust or preliminary injunction, and the sixth cause of action for an accounting). Counsel for the Betoulieres and Bauman advised the court that they were close to an agreement for specific performance that would allow the court to dispense with a trial of the other claims. After a short recess, counsel advised the court that it could enter an order for specific performance consistent with the terms of the purchase agreement. The court then orally granted specific performance of the real estate purchase contract, ordered that escrow close by October 2, 2001, and ordered that a bench trial would take place on the remaining claims asserted by the Betoulieres if this deadline was not met.

On October 5, 2001, pursuant to the stipulation of the parties, the trial court entered a formal "Interim Order for Specific Performance," consummating the sale of the real property to the Betoulieres. The parties' counsel represented to the court that escrow had closed the previous day. The court then conducted a trial on the punitive damages issue and awarded Astra $4,000 in punitive damages against the Betoulieres.

After October 5, 2001, no further proceedings were conducted in the trial court between the Betoulieres and Bauman. The only issue left to be litigated was the Betoulieres' quiet title claim against Astra and Cohen regarding the existence of an easement benefiting the Betoulieres' property. Between October 5, 2001, and June of 2004, the Betoulieres, Astra, and Cohen actively litigated the quiet title claim.

On November 14, 2003, over two years after entry of the "Interim Order for Specific Performance," the Betoulieres filed a motion seeking $139,389 in attorney's fees against Bauman as the prevailing party in this contractual dispute. Their motion was supported by the declaration of Alejandro Gutierrez, lead counsel for the Betoulieres. Gutierrez attached copies of the billing sheets recording the time spent by his firm on the case. The billing sheets reflected services rendered through November 1, 2001, and included time spent drafting the motion for attorney's fees in October of 2001. Gutierrez did not explain why he had not sought these fees two years earlier. A few days later, on November 18, 2003, the Betoulieres filed their cost bill against Bauman, requesting an award of $29,693 in costs.

Bauman opposed the motion for attorney's fees, arguing that it was untimely and the fees sought were unreasonable. Bauman argued that under California Rules of Court, rule 870.2(b)(1), the Betoulieres' motion had to be filed within the time period for filing a notice of appeal. Bauman argued that, at the latest, the Betoulieres had to file their motion by April 3, 2002, i.e., 180 days after entry of the October 5, 2001, "Interim Order for Specific Performance." Bauman noted the motion was filed in November of 2003, over 19 months after the time for filing a notice of appeal had expired.

Bauman also moved to strike the Betoulieres' cost memorandum, arguing that it was untimely filed under rule 870(a)(1). Bauman argued that it should have been filed within 180 days of entry of the October 5, 2001, "Interim Order for Specific Performance."

In response, the Betoulieres contended their fee motion and cost bill were timely filed because no judgment had ever been entered resolving all the claims between them and Bauman, and therefore the time for filing these matters had never commenced running. The Betoulieres did not request relief under section 473 from the time limits imposed by rules 870.2 and 870 for fee and cost motions.

On January 7, 2004, the trial court conducted a hearing on the Betoulieres' motion for attorney's fees and took the matter under submission. Relying on Gunlock Corp. v. Walk on Water, Inc. (1993) 15 Cal.App.4th 1301 (Gunlock), the court commented that the time limits were not jurisdictional and that the court had broad discretion to allow relief where there was no showing of prejudice to the opposing party. The court questioned Bauman's counsel as to how they were prejudiced by the untimely filing of the motion.

On January 8, 2004, the court heard Bauman's motion to strike the Betoulieres' cost bill and took it under submission. Bauman's counsel urged the court to consider Russell v. Trans Pacific Group (1993) 19 Cal.App.4th 1717, which held that the time limits for filing fee motions and costs bills are mandatory, albeit not jurisdictional, and the court has discretion to excuse a late filing upon a showing of mistake, inadvertence, surprise, or excusable neglect. Bauman contended Gunlock was no longer good law after the amendments to the time limits set forth in rule 870.2.

Thereafter, the trial court granted the Betoulieres' motion for attorney's fees in the full amount requested. The court reasoned that the "Interim Order for Specific Performance" was not final because it reserved issues against the defendants, and a subsequent stipulation between the parties had resolved the reserved issues.^[3] The court went on to note: "The real issue is whether the motion was filed within the time frames set out in [rule 870.2(b)(1)], referring to Rules 2 and 3 setting the time for filing of appeal. It was not. However, defendants have not shown prejudice; and a violation of this time limit, especially considering the nature of the interim rulings in this case, is not jurisdictional in character." The court granted Bauman's motion to strike the cost bill in its entirety, ruling that cost memoranda were governed by rule 870, not rule 870.2 as argued by the Betoulieres.

On February 9, 2004, the trial court entered its formal, written order awarding the Betoulieres attorney's fees in the amount of $139,389 and striking the Betoulieres' cost memorandum.

In March of 2004, Bauman appealed from the trial court's order of February 9, 2004, granting the Betoulieres' motion for attorney's fees. The Betoulieres then cross-appealed from the court's order striking their cost bill.

In March of 2005, this court reversed the trial court's order awarding attorney's fees and affirmed the order taxing the cost bill. (Bauman I.) We held that the Betoulieres' motion for attorney's fees and their memorandum of costs were untimely. We concluded that the "Interim Order for Specific Performance" entered on October 5, 2001, was a judgment for purposes of commencing the running of the time period for seeking attorney's fees under rule 870.2. We observed that, under rule 870.2 (b)(1), the Betoulieres had 180 days after entry of the judgment within which to file their fee motion.^[4] Because their fee motion was filed 19 months after the expiration of the 180-day time limit, we concluded it was untimely.

In Bauman I, we explained that the trial court had improperly placed the burden on Bauman to show prejudice. We stated:

"In granting the motion for attorney's fees, the trial court relied upon Gunlock, supra, 15 Cal.App.4th 1301. Gunlock was decided in 1993 and was based on the 1990 version of rule 870.2, which required that motions for attorney fees be filed within the time frame for submitting cost bills. [Citation.] . . . Gunlock held that the time limits set forth in rule 870.2 were not jurisdictional and the trial court had broad discretion to allow the late filing of a motion in the absence of prejudice to the opposing party. Rule 870.2 was amended in 1994. The current version of rule 870.2 requires a showing of 'good cause' before the trial court may extend the time for filing a fee motion. In light of the amendments to rule 870.2, Gunlock is no longer persuasive authority.

"The time limits provided in rule 870.2 are mandatory and the trial court does not have discretion to disregard noncompliance. [Citations.] The Betoulieres' motion was filed 19 months after the expiration of the 180-day time limit in rule 870.2. The requirement that 'good cause' be demonstrated before a court may extend the time limit in rule 870.2 contemplates that the moving party will make a showing of mistake, inadvertence, or excusable neglect, such as that required by Code of Civil Procedure section 473. The Betoulieres made no effort to establish good cause for the two-year delay in seeking fees. The billing sheets attached to their fee motion show 8.2 hours of attorney time spent between September and November 1, 2001, researching and drafting the motion for attorney's fees, yet no explanation was offered as to why the motion was not filed until two years later. The absence of prejudice to the opposing party does not, in itself, demonstrate good cause for extending the time period set forth in rule 870.2. The trial court erred in granting the motion for attorney's fees based solely on a finding of lack of prejudice to Bauman. [Citation.]" (Id. at pp. 11 & 12.)

Similarly, we held that the Betoulieres had 180 days from the date of entry of the judgment within which to file and serve their cost bill. (Rule 870(a)(1).)^[5] Because their cost bill was served and filed over two years late, we affirmed the trial court's order striking their cost bill as untimely.

Accordingly, we reversed the trial court's order of February 4, 2004, awarding the Betoulieres $139,389 in attorney's fees, and affirmed the trial court's order of February 9, 2004, striking the Betoulieres' memorandum of costs. We awarded Bauman costs on appeal and cross-appeal. We denied the Betoulieres' subsequent petition for rehearing, but made a minor modification to our opinion. On May 10, 2005, this court issued its remittitur.

On May 12, 2005, two days after the issuance of our remittitur in Bauman I, the Betoulieres filed a motion in the trial court for an order extending the time to file a motion for attorney's fees under rule 870.2. Alternatively, the Betoulierres moved for relief from their default in failing to timely file their fee motion and cost bill pursuant to section 473 based upon "the mistake, inadvertence, surprise, or excusable neglect of their attorneys." Attached as exhibits to their motion were the same attorney's fee motion and cost bill previously filed in November of 2003.

The Betoulieres argued that rule 870.2(d) authorizes the trial court to extend the time for filing a motion for attorney fees in the absence of a stipulation for "a longer period than allowed by stipulation." They argued the rule imposes no limitation upon the length of extension a trial judge may grant, and that "the only limitation is the requirement that the judge find good cause for granting the extension." The Betoulieres further argued that section 473 authorized the court to relieve them from the mistake, inadvertence, surprise, or excusable neglect of their counsel in failing to meet the procedural time limit for seeking fees. They argued their motion for relief was brought within a reasonable time, i.e., within the six-month time limitation provided by section 473.

The Betoulieres argued that good cause existed for extending the time for filing the fee motion because (1) their counsel did not believe the "Interim Order for Specific Performance" was a final judgment or appealable within the meaning of rule 870.2; and (2) it would be unjust to allow Bauman to escape contractual liability for attorney's fees. The Betoulieres further argued that relief under section 473 was mandatory based on counsel's error and that the six-month time limit for seeking section 473 relief began running after the appeal in Bauman I concluded, i.e., on the date this court issued its remittitur. As for the cost bill, the Betoulieres argued that the six-month time limit for seeking section 473 relief began running on February 9, 2004, when the trial court struck the cost bill, but the filing of the appeal stayed the six-month period until issuance of this court's remittitur. ( 916.)

Bauman opposed the motion, arguing that relief was barred by (1) the doctrine of law of the case; (2) judicial estoppel; and (3) res judicata. Bauman also argued that (1) the mandatory relief provisions of section 473 were inapplicable because no default had been entered against the Betoulieres; (2) the discretionary relief provisions of section 473 were inapplicable because the six-month time period for seeking relief had expired and the inexcusable neglect of counsel was not a basis for relief; (3) the trial court could not grant an extension under rule 870.2 beyond 180 days from the date of the judgment (October 5, 2001); and (4) the Betoulieres had not demonstrated "good cause" for an extension of the time limit imposed by rule 870.2.

On June 14, 2005, the trial court (Judge Hintz) conducted a hearing on the Betoulieres' relief motion. The court took the matter under submission.

In the meantime, on June 17, 2005, having prevailed in Bauman I and having been awarded costs in that appeal, Bauman filed in the trial court an appellate cost bill in the amount of $1,575 and a companion motion for $16,516 in appellate attorney fees. ( 1032, 1033.5; Civil Code, 1717.) Bauman noted that the parties' contract authorized an award of attorney's fees and costs to the prevailing party in any action or proceeding "arising out of this Agreement." (See also Harbour Landing-Dolfann, Ltd. v. Anderson (1996) 48 Cal.App.4th 260, 263 [when attorney's fees are available pursuant to statute or by contract, they are available for services both at trial and on appeal].) The motion was set for hearing on July 14, 2005.

On June 23, 2005, Judge Hintz granted the Betoulieres' relief motion under rule 870.2(d) and section 473, subdivision (b). The court ruled that the motion for relief was timely under section 473 because it was filed "within six months of the ruling that the previous motion for attorneys' fees was untimely if the time the case was stayed on appeal is omitted." The court ruled that rule 870.2(d) did not limit the time to bring the motion, that rule 870(b)(2) was inapplicable, but even if it did apply, "the motion was brought within its time limits." The court determined it had jurisdiction to hear the motion and that the doctrines of law of the case and res judicata were inapplicable. The court reasoned: "The Court of Appeal did not rule out the availability of the relief sought in this motion. Neither res judicata nor collateral estoppel is implicated for the same reasons. The issues of good cause and reasonableness were not addressed in the Court of Appeal."

Finally, the court ruled that discretionary section 473 relief was warranted, reasoning that the reliance by the Betoulieres' counsel on Morehart v. County of Santa Barbara (1994) 7 Cal.4th 725, in concluding there was no final judgment, "was an honest and reasonable misconception. Morehart was a case out of this appellate district. Griset [v. Fair Political Practices Com. (2001) 25 Cal.4th 688] ruled that although Morehart had been the well-established law, the rule from then forward was different. . . . The rule that attorneys are charged with knowing the law does not make all errors of law unreasonable. []  Further, counsel had been relying on this Court's rulings, including specific refusals to enter judgment at Bauman's request, based on this court's incorrect conclusion that the order was an interim order. It would have been unreasonable in the face of this court's rulings for counsel to have pressed a motion for attorney's fees. []  Accordingly, whether counsel's actions are viewed as an excusable mistake of law or excusable neglect of a reasonably prudent attorney, relief is appropriate. Good cause exists for an extension of time to file the actual motion. The motion is ordered to be filed by 5 July 2005 and ordinary statutory time frames for further briefing and setting of the motion for hearing are applicable."

On June 30, 2005, the Betoulieres filed opposition to Bauman's appellate attorney fees motion, arguing that Bauman was the prevailing party in the appeal, but not on the contract. Having had their motion for section 473 relief granted by Judge Hintz on June 23, the Betoulieres also filed their same $29,693 cost bill and the same $139,389 contractual attorney fees motion. They set August 17, 2005, as the hearing date on their fee and cost motions.

On July 5, 2005, Bauman served a motion for reconsideration and clarification regarding Judge Hintz's ruling of June 23, 2005. Bauman pointed out that the court's order of June 23 contained a factual misstatement in that it was the Betoulieres who had requested that judgment not be entered, not Bauman. Bauman pointed out that they were not present at the hearing of October 5, 2001, because the case against them had concluded with entry of the specific performance decree.

On July 15, 2005, Judge Hintz denied Bauman's motion for appellate attorney fees and costs, reasoning that because the appeal had not involved the merits of the case, Bauman could not recover attorney's fees. The court stated: "Civil Code section 1717 allows attorney's fees in contract cases when the fees are incurred to enforce the contract. The merits of the contract were not at issue in the appeal. [Mustachio v. Great Western Bank (1996) 48 Cal.App.4th 1145] held that prevailing in an appeal relating to fees and costs does not turn the party into the prevailing party in the litigation."

On July 20, 2005, Bauman filed a motion to strike the Betoulieres' cost bill and on August 3, 2005, an opposition to the Betoulieres' fee motion. Bauman contended, among other things, that the cost bill and fee motion were untimely, and barred by the doctrines of res judicata, law of the case, and judicial estoppel. Bauman also argued that even if timely, the fees claimed were excessive and unrelated to the trial against Bauman.

On August 3, 2005, Judge Hintz denied Bauman's request for reconsideration but granted the clarification motion. Judge Hintz corrected his order to read that counsel had been relying on the trial court's rulings, "including specific refusals to enter judgment at the request of other co-defendants, based on [the] court's incorrect conclusion that the order [for specific performance] was an interim order."

On August 4, 2005, the Betoulieres opposed Bauman's motion to strike their cost bill.

On August 10, 2005, one week before the scheduled hearing on the Betoulieres' motion for attorney's fees, as well as Bauman's motion to strike their cost bill, Bauman filed a notice of appeal from the trial court's orders of (1) June 23, 2005, granting section 473 relief; (2) July 15, 2005, denying Bauman's motion for appellate attorney fees and costs; and (3) August 3, 2005, denying Bauman's request for reconsideration.

On August 17, 2005, Judge Hintz issued an order staying any hearing on the Betoulieres' motion for attorney's fees and Bauman's motion to strike their cost bill, until Bauman's appeal was decided.

Discussion

I. The June 23, 2005, Order Granting Section 473 Relief

Bauman contends the trial court erred in granting the Betoulieres' motion for section 473 relief from the time limits imposed for seeking attorney's fees and costs. Bauman asserts numerous contentions as to why relief under section 473 was not available to the Betoulieres, including the application of several doctrines, i.e., stare decisis, res judicata, judicial estoppel, and law of the case. Bauman also contends the Betoulieres' motion was untimely filed, i.e., beyond the six months allowed by section 473. We agree with their alternative contention that the Betoulieres did not make an adequate showing of excusable neglect, inadvertence, or surprise to warrant granting discretionary relief under section 473. We, therefore, do not reach Bauman's other contentions.

Section 473, subdivision (b) allows a court "upon any terms as may be just, [to] relieve a party . . . from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect . . . ." This statutory provision permits a court to relieve a party or counsel from a failure to meet a procedural deadline. (Lee v. Wells Fargo Bank (2001) 88 Cal.App.4th 1187, 1193.) A trial court's decision to grant relief under section 473, subdivision (b), is subject to review for an abuse of discretion.^[6]

A party seeking discretionary relief under section 473, subdivision (b), based on attorney neglect, "must demonstrate that such mistake, inadvertence, or general neglect was excusable because the negligence of the attorney is imputed to his client and may not be offered by the latter as a basis for relief. [Citation.]" (Generale Bank Nederland v. Eyes of the Beholder Ltd. (1998) 61 Cal.App.4th 1384, 1399.) Neglect is excusable only if "'a reasonably prudent person under the same or similar circumstances' might have made the same error. [Citations.]" (Bettencourt v. Los Rios Community College Dist. (1986) 42 Cal.3d 270, 276.)

"[T]he discretionary relief provision of section 473 only permits relief from attorney error 'fairly imputable to the client, i.e., mistakes anyone could have made.' [Citation.] 'Conduct falling below the professional standard of care, such as failure to timely object or to properly advance an argument, is not therefore excusable. To hold otherwise would be to eliminate the express statutory requirement of excusability and effectively eviscerate the concept of attorney malpractice.' [Citation.]" (Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 258; see Carroll v. Abbott Laboratories, Inc. (1982) 32 Cal.3d 892, 895; Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 682.)

Here, the mistake by the Betoulieres' counsel in waiting until November of 2003, two years after the decree of specific performance was entered, to seek attorney's fees and costs as the prevailing party constitutes inexcusable neglect under section 473. It was not the mere inadvertent entry of a wrong date, or a calendaring error, that might warrant discretionary relief. While an honest mistake of law is a valid ground for relief when the legal problem posed is complex and debatable, see State Farm Fire & Casualty Co. Pietak (2001) 90 Cal.App.4th 600, 611, the time limits imposed by rules 870.2 and 870 are not complex. As we held in Bauman I, the decree of specific performance was a judgment for purposes of commencing the running of the time period under rules 870.2 and 870. The Betoulieres' counsel represented to the trial court on September 11, 2001, that his clients' fee motion and cost bill would be filed within 10 days. On October 5, 2001, he represented to the court that the litigation had been concluded between his clients and Bauman, and his own billing records confirmed that Bauman had no further involvement in the action.

Contrary to the Betoulieres' contention, Morehart v. County of Santa Barbara, supra, 7 Cal.4th at page 740, and Griset v. Fair Political Practices Com., supra, 25 Cal.4th at page 698, are consistent in setting forth the well established rule that a "[j]udgment in a multiparty case determining all issues as to one or more parties may be treated as final even though issues remain to be resolved between other parties. [Citations.]" (Morehart, at p. 740; see also 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, 69, p. 126.) Unjustifiable negligence in discovering or researching the law is inexcusable neglect not meriting relief under section 473, subdivision (b). (See State Farm Fire & Casualty Co., supra, 90 Cal.App.4th at p. 611 [where the court finds that the alleged mistake of law is the result of professional incompetence based upon erroneous advice, general ignorance of the law, or lack of knowledge of the rules, or unjustifiable negligence in the discovery or research of the law, relief will normally be denied].)

In short, the Betoulieres' motion for relief under section 473 did not make an adequate showing of excusable neglect on the part of their counsel to warrant granting relief from the time limits imposed by rules 870.2 and 870. The trial court, therefore, abused its discretion by granting their motion.

II. The July 15, 2005, Order Denying

Bauman's Motion for Appellate Fees and Costs

In Bauman I, this court awarded Bauman, as the prevailing party in the appeal and cross-appeal, their costs. Post-remittitur, Bauman filed a motion for attorney's fees in the amount of $16,516 and a cost bill for $1,575 (total cost bill of $18,091). The trial court denied the motion for fees and costs, relying upon Mustachio v. Great Western Bank, supra, 48 Cal.App.4th 1145. Bauman contends the trial court erred in denying this motion and that Mustachio is inapposite. We agree.

The real estate agreement between the Betoulieres and Bauman provides in pertinent part: "In any action, proceeding or arbitration between Buyer and Seller arising out of this Agreement, the prevailing Buyer or Seller shall be entitled to reasonable attorney's fees and costs from the non-prevailing Buyer or Seller . . . ." This language suggests that any action or proceeding arising out of the agreement will entitle the prevailing party to an award of attorney's fees. Although the contractual dispute between Bauman and the Betoulieres ended with the entry of the decree of specific performance in 2001, the entitlement to an award of attorney's fees obviously arises out of the parties' agreement. The entitlement to fees was litigated in a separate proceeding or action because the dispute between the parties had ended two years earlier. Bauman had a right to challenge the contractual obligation to pay fees some two years after the contractual dispute had ended. Thus, the appeal in Bauman I was an "action" or "proceeding" arising out of the parties' agreement. As the prevailing party in that "action" or "proceeding," Bauman is entitled to an award of attorney's fees for the legal expenses incurred in successfully prosecuting that "action" or appeal. (See also Harbour Landing-Dolfann, Ltd. v. Anderson, supra, 48 Cal.App.4th at 265 [right to recover attorney's fees on a contract extends to fees incurred in pursuing appeal].)

Mustachio v. Great Western Bank, supra, 48 Cal.App.4th 1145, does not assist the Betoulieres. There, the plaintiff was awarded compensatory and punitive damages following a jury verdict. The trial court granted defendant's motion for new trial on the issue of punitive damages and plaintiff appealed. The appellate court modified the judgment, struck the punitive damages, reversed the order granting new trial, and declared the parties were to bear their own costs. Following issuance of the Court of Appeal's remittitur, plaintiff moved the trial court for an award of appellate attorney's fees. The trial court awarded her fees as the prevailing party and the Court of Appeal affirmed. The appellate court reasoned that "'[i]n deciding whether there is a "party prevailing on the contract," the trial court is to compare the relief awarded on the contract claim or claims with the parties' demands on those same claims and their litigation objectives. . . . The prevailing party determination is to be made only upon final resolution of the contract claims and only by "a comparison of the extent to which each party ha[s] succeeded and failed to succeed in its contentions." . . . [Citation.]' Here, upon final resolution, Mustachio was the party prevailing on the contract. While her claim for punitive damages was rejected on appeal, she was ultimately awarded damages in excess of $200,000 as a result of the breach of contract and conversion claims." (Id. at p. 1150.)

Here, unlike the facts of Mustachio, the Betoulieres initiated proceedings to obtain a contractual award of attorney's fees two years after the action had been concluded. Bauman disputed the contractual obligation to pay fees at this late date. Under the terms of the parties' agreement, the prevailing buyer or seller "in any action [or] proceeding . . . between Buyer and Seller arising out of the Agreement . . . shall be entitled to reasonable attorney's fees and costs from the non-prevailing Buyer or Seller." Bauman prevailed in the appeal in Bauman I. The trial court, therefore, erred in denying Bauman's motion for fees and costs. Bauman is also entitled to appellate fees and costs for prevailing in this appeal.

Bauman requests that we set the amount of his fees and costs incurred in prosecuting Bauman I and the instant appeal. Bauman also requests that we remand this case to the Presiding Judge of the Superior Court for reassignment to a different trial judge. (See Code Civ. Proc., 170.1, subd. (c).) Where a judge's statements give the appearance of bias, the interests of justice may make it appropriate for an appellate court to order the matter to be heard by a different judge on remand. (Rose v. Superior Court (2000) 81 Cal.App.4th 564, 576.) Here, although the trial judge's rulings in connection with the fee motions and cost bill were erroneous, nothing in his comments or conduct suggests any bias in favor of the Betoulieres or against Bauman. Accordingly, we deny this request.

Disposition

We reverse the trial court's order of June 23, 2005, granting the Betoulieres' motion for relief under section 473 and the order of July 15, 2005, denying Bauman's motion for appellate attorney's fees and costs. We remand this case with instructions to deny the Betoulieres' motion for relief under section 473, to grant Bauman's motion for an award of appellate attorney's fees and costs incurred in successfully prosecuting Bauman I, and to award Bauman reasonable appellate attorney's fees and costs incurred in successfully prosecuting the instant appeal.

NOT TO BE PUBLISHED.

COFFEE, J.

We concur:

YEGAN, Acting P.J.

PERREN, J.

Steven Hintz, Judge

Superior Court County of Ventura

______________________________

Robert J. Wheeler, Hager & Dowling, Thomas J. Dowling, Jonathan D. Miller, for Defendants and Appellants Verne W. Bauman and Cherie A. Hanley.

Hathaway, Perrett, Webster, Powers, Chrisman & Gutierrez, Greg W. Jones and Alejandro P. Gutierrez, for Plaintiffs and Respondents.

Publication courtesy of California pro bono lawyer directory.

Analysis and review provided by Chula Vista Property line attorney.

^[1]All statutory references are to the Code of Civil Procedure unless otherwise stated.

^[2]All references to "rules" are to the California Rules of Court in effect at the time this case was heard in the trial court. Effective January 1, 2007, former rules 870.2 and 870 were renumbered as rules 3.1702 and 3.1700, respectively.

^[3]As the Betoulieres conceded below, there was no stipulation between the parties subsequent to October 5, 2001, and there was nothing in the record of the prior appeal showing any subsequent stipulation resolving the reserved issues.

^[4]Rule 870.2 (b)(1) provides: "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 rules 2 and 3." Under rule 2(a), a notice of appeal must be filed on or before the earliest of 60 days after notice of entry of the judgment or, if no written notice of entry of judgment is given, within 180 days after entry of the judgment. Rule 870.2(b)(2) allows the parties to stipulate to extend the time for filing a motion for attorney's fees for an additional 60 days. Rule 870.2 (d) provides that "[f]or good cause, the trial judge may extend the time for filing a motion for attorney fees in the absence of a stipulation or for a longer period than allowed by stipulation."

^[5]Under rule 870(a)(1), "[a] prevailing party who claims costs shall serve and file a memorandum of costs within 15 days after the date of mailing of the notice of entry of judgment or dismissal by the clerk . . . or the date of service of written notice of entry of judgment or dismissal, or within 180 days after entry of judgment, whichever is first." Rule 870( b)(3) authorizes the parties to agree to extend the time for serving and filing the cost memorandum. Rule 870(b)(3) provides that, "[i]n the absence of an agreement, the court may extend the times for serving and filing the cost memorandum . . . for a period not to exceed 30 days."

^[6]Mandatory relief under section 473, subdivision (b) is not available to the Betoulieres because they were not seeking relief from a default, default judgment, or dismissal. (See English v. IKON Business Solutions, Inc. (2001) 94 Cal.App.4th 130, 138-139, 147-149.)