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March 17, 2026 Get Citation Alerts Download PDF Add Note

Pelloni v. Mirshahi CA2/4

California Court of Appeal

• Citations: None known
• Docket Number: B336950

• Precedential Status: Non-Precedential

• Opinion

• Authorities (9)

• Cited By (0)

• Summaries (0)

• Similar Cases (10.2K)

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Combined Opinion

Filed 3/17/26 Pelloni v. Mirshahi CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOUR

MARY PELLONI, B336950, B340679

Defendant and (Los Angeles County
Appellant, Super. Ct. No. BC682267)

v.

SAEEDEH MIRSHAHI,

Plaintiff and
Respondent.

APPEALS from judgment and postjudgment orders of the
Superior Court of the County of Los Angeles, Elaine Lu and Rolf
M. Treu, Judges. Dismissed in part, reversed in part, and
remanded with directions.
Lavely & Singer and David B. Jonelis for Defendant and
Appellant.
Law Offices of Robert C. Moest and Robert C. Moest for
Plaintiff and Respondent.
Mary Pelloni appeals from judgment in favor of Saeedeh
Mirshahi following a bifurcated trial and from an order denying
her postjudgment motion for judgment notwithstanding the
verdict (JNOV), or in the alternative, for a new trial. She
separately appeals from an order denying her motion to tax costs.
The latter appeal is unopposed.
We ordered the appeals consolidated. We lack jurisdiction
to consider the appeal of the judgment and order denying the
JNOV motion and therefore dismiss it. We reverse the order
denying the motion to tax costs in part, with directions to grant
the motion as to the award of attorney fees of $577,513.79 and
the award of “Other” costs of $3,129.35.

BACKGROUND1
The following facts are taken from the trial court’s
unchallenged findings after the first phase of trial. Pelloni was a
film producer. She, her production company, Mirshahi, and
Mirshahi’s husband orally agreed to produce and sell a
documentary about a figure who had been involved in the 1979
Iran hostage crisis. Pelloni began filming interviews, and
between April and July 2017, received payments from Mirshahi
totaling $40,000. By August 2017, disputes had arisen over
production costs and the terms of a written agreement that would

1 We do not recite the entire factual and procedural background,
as the parties are familiar with the facts of the case and its procedural
history. (People v. Garcia (2002) 97 Cal.App.4th 847, 851 [unpublished
opinion merely reviewing correctness of trial court’s decision “does not
merit extensive factual or legal statement”].) Undesignated statutory
references in this opinion are to the Code of Civil Procedure, and
undesignated references to rules are to the California Rules of Court.

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provide for the division of any profits from the film’s sale. Pelloni
ceased work on the film.
Mirshahi sued Pelloni and her production company for
breach of oral partnership agreement, breach of fiduciary duty,
fraud, conversion of money and property, accounting, constructive
trust, claim and delivery, and injunctive relief. Pelloni filed
cross-claims that included fraud, breach of contract, and
declaratory relief.
After the first phase of a bifurcated trial, the court found in
favor of Mirshahi on her equitable claims and granted partial
declaratory relief on Pelloni’s cross-claim. After the second
phase, the jury returned verdicts for Mirshahi on her claims for
breach of contract and most of her tort claims. It awarded
damages of $40,000 for “Loss of Money (Funds Invested),”
$60,000 for “Lost Profits,” and $400,000 for “Loss of Property
(Documentary Film).” (Boldface omitted.) The jury found against
Pelloni on her remaining cross-claims.
In August 2023, Pelloni filed a motion for JNOV or
alternatively for a new trial (first JNOV motion). Relevant to
this appeal, she argued “there was no substantial evidence to
support the jury’s award of $400,000 for ‘Loss of Property
(Documentary Film)[’] and such an award is excessive.” On
October 9, 2023, the court denied the motion to the extent it
challenged the loss of property damages.2 Pelloni did not seek
appellate review of this order.

2 The court conditionally granted the motion for a new trial as to
the damages for lost money (funds invested) and lost profits unless
Mirshahi stipulated to reducing the lost money award to $16,522.24
and the lost profits award to zero. Mirshahi accepted the reduction.

3
On November 6, 2023, judgment was entered and notice of
entry of the judgment was served. The judgment provided for
Mirshahi to recover her costs “per memorandum of costs.”
Pelloni filed another motion for JNOV, or in the
alternative, for a new trial (second JNOV motion), arguing “there
was no substantial evidence to support the jury’s award of
$400,000 for ‘Loss of Property (Documentary Film)’” and the
award was excessive. The trial court treated the filing as an
untimely motion for reconsideration and denied it.
Mirshahi timely filed a cost memorandum. Pelloni filed an
unopposed motion to tax costs, which was denied.
On February 16, 2024, Pelloni filed her first notice
purporting to appeal from the judgment and order denying the
second JNOV motion. Subsequently, she filed a second notice of
appeal from the order denying her motion to tax costs.

DISCUSSION
Pelloni argues the award of lost property damages was
excessive, substantial evidence did not support it, and a new trial
should have been granted. She also challenges two cost items:
attorney fees and “‘other’” costs.

A. Dismissal of the First Appeal
We issued a Government Code letter (Gov. Code, § 68081)
requesting briefing on the timeliness of the first notice of appeal
and the appealability of the order denying the second JNOV
motion. After reviewing the supplemental briefing and other

4
trial court records,3 we conclude we lack jurisdiction over the first
notice of appeal and must dismiss it.

1. Timeliness of the Appeal from the Judgment A timely notice of appeal “‘is an absolute prerequisite to the exercise of appellate jurisdiction.’ [Citation.]” (K.J. v. Los Angeles Unified School Dist. (2020) 8 Cal.5th 875, 881.) Even if no objection is made by a party, a reviewing court “has no discretion but must dismiss [an untimely] appeal of its own motion.” (Estate of Hanley v. Hanley (1943) 23 Cal.2d 120, 123.) A notice of appeal must be filed on or before 60 days after the superior court clerk serves a notice of entry of judgment, unless “a statute or rules 8.108, 8.702, or 8.712 provide otherwise . . . .” (Rule 8.104(a)(1)(A).) The trial court entered and mailed notice of entry of judgment on November 6, 2023. Thus, absent an extension, Pelloni’s February 2024 notice of appeal from the judgment is untimely. Pelloni relies on rule 8.108(d)(1), which provides for an extension if a party serves and files a “valid” JNOV motion and the motion is denied.4 A “valid” motion under rule 8.108(d) is one

3 We notified the parties of our intent to take judicial notice of
certain records of the superior court that were not included in the
appellant’s appendix but are relevant to the timeliness of appeal.
(Evid. Code, § 459, subd. (d).) Having received no objection, we take
judicial notice of: (1) “Court Order Re: Judgment/NOTICE OF ENTRY
OF JUDGMENT” dated November 6, 2023; and (2) a minute order
dated October 9, 2023, denying the first JNOV motion and partially
granting the motion for a new trial. (Id., § 452, subd. (d).)
4 Rule 8.108(d)(1) provides that if a party files a “valid motion” for
JNOV and “the motion is denied, the time to appeal from the judgment
is extended for all parties until the earliest of: ¶ 30 days after the

5
that “‘complies with all procedural requirements; it does not
mean that the motion or notice must also be substantively
meritorious.’” (Branner v. Regents of University of California
(2009) 175 Cal.App.4th 1043, 1047, quoting Advisory Com. com.,
23 pt. 2 West’s Ann. Codes, Rules (2009 supp.) foll. rule 8.108,
p. 84, italics omitted.) Pelloni contends her second JNOV motion
was “valid” because it was permitted by sections 629 and 659, the
provisions governing the timing of JNOV and new trial motions.
JNOV motions must be “made within the period specified
by Section 659 for the filing and service of a notice of intention to
move for a new trial.” (§ 629, subd. (b).) Section 659,
subdivision (a) (section 659(a)) requires a party to give notice of
intention to move for a new trial “either: ¶ After the decision
is rendered and before the entry of judgment. ¶ Within 15
days of the date of serving notice of entry of judgment by the
clerk of the court . . . .” (Italics added.)
Pelloni contends her second JNOV motion was proper
because a 2012 amendment to section 659(a) removed the word
“or” between subdivisions (1) and (2). This change, she argues,
“suggests that the [L]egislature did not intend for a pre-judgment
and post-judgment motion to be mutually exclusive of each
other.” In other words, she contends she could extend the
deadline to file a notice of appeal by filing a second JNOV motion,
even if she filed a prejudgment JNOV motion including a request
for the same relief.
Pelloni fails to persuade us that the Legislature intended to
authorize the filing of multiple JNOV motions as she suggests,

superior court clerk . . . serves an order denying the motion or a notice
of entry of that order; ¶ 30 days after denial of the motion by
operation of law; or ¶ 180 days after entry of judgment.”

6
fostering delay and impeding the finality of judgments. She
overlooks the statute’s plain language, which undermines her
argument. The word “either” precedes subdivisions (1) and (2) of
659(a), requiring a party to give notice of intention to file a JNOV
motion in one of two designated timeframes. Thus, section 659(a)
provides alternative time periods for filing JNOV motions, not
permission to file a second JNOV motion after a prior motion
seeking the same relief was denied. Though we need not look
beyond the plain language of the statute, we note Pelloni
provides no legislative history or authority to support her
interpretation of the 2012 change in section 659(a)’s language.
Pelloni fails to show her second JNOV motion complied
with section 629’s procedural requirements. Therefore, she fails
to show it was a “valid” motion under rule 8.108(d)(1) that
extended the time to appeal from the judgment. We lack
jurisdiction over her appeal from the judgment.5

1. Appealability of the Order Denying the Second JNOV Motion To the extent Pelloni seeks review of the denial of her second JNOV motion as a standalone order, we conclude it is nonappealable. The trial court found the second JNOV motion to be a motion for reconsideration governed by section 1008 because it

5 Our lack of jurisdiction over an appeal from the judgment means
we are precluded from reviewing Pelloni’s challenge to the trial court’s
denial of a new trial. An order denying a new trial motion is
reviewable only on appeal from the underlying judgment. (See Brown
v. American Bicycle Group, LLC (2014) 224 Cal.App.4th 665, 669,
fn. 3.)

7
raised an issue decided in the first JNOV motion: whether there
was “substantial evidence to support the jury’s award of $400,000
for ‘Loss of Property (Documentary Film)’ and excessiveness of
the award.”
In our Government Code letter, we asked Pelloni to address
whether the second JNOV motion resulted in an appealable
order, or whether it was an unappealable order denying a
section 1008 motion.
Section 1008 provides that any party affected by a prior
order “may, within 10 days after service upon the party of written
notice of entry of the order and based upon new or different facts,
circumstances, or law,” apply to the court to “modify, amend, or
revoke the prior order.” “‘The name of a motion is not controlling,
and, regardless of the name, a motion asking the trial court to
decide the same matter previously ruled on is a motion for
reconsideration under Code of Civil Procedure section 1008.’
[Citation.]” (J.W. v. Watchtower Bible & Tract Society of New
York, Inc. (2018) 29 Cal.App.5th 1142, 1171 (J.W.).)
One of the three grounds asserted in the first JNOV motion
was the excessiveness of the award for loss of property damages
and the lack of evidence to support it. Pelloni repeated the
arguments in her second motion and acknowledged she had
raised them before. Because she asked the court to decide the
same matters it previously ruled on, the court properly treated
the second JNOV motion as an untimely motion for
reconsideration.
Pelloni attempts to avoid this outcome by citing language
from the order denying the first JNOV motion that supposedly
shows the court did not determine certain issues and left her free
to raise them in the second JNOV motion. This argument is

8
unpersuasive, however, because section 1008 requires us to focus
on what the moving party requested. (J.W., supra, 29
Cal.App.5th at p. 1171.) Here, Pelloni does not dispute that both
motions asked the court to decide whether the damages award
was excessive and supported by substantial evidence. The court
affirmed the damages award, and nothing in the earlier order
suggested the court intended to invite a future motion on the
issues Pelloni raised.
Accordingly, the trial court correctly treated the second
JNOV motion as one for reconsideration. An order denying such
a motion is not appealable (Chango Coffee, Inc. v. Applied
Underwriters, Inc. (2017) 11 Cal.App.5th 1247, 1252), and we
lack jurisdiction over the appeal taken from this order. (In re
Javier G. (2005) 130 Cal.App.4th 1195, 1201 [reviewing courts
lack jurisdiction to consider appeals from nonappealable orders
and must dismiss such appeals].)

B. Motion to Tax Costs
Pelloni also appeals from the order granting attorney fees
of $577,513.79 and “Other” costs of $3,129.35 included in
Mirshahi’s cost memorandum. Mirshahi did not oppose or
respond to Pelloni’s appellate challenges to this order.
Section 1033.5 sets forth the items of costs which may or
may not be recoverable in a civil action. (Ladas v. California
State Auto. Assn. (1993) 19 Cal.App.4th 761, 773–774.) “If the
items appearing in a cost bill appear to be proper charges, the
burden is on the party seeking to tax costs to show that they were
not reasonable or necessary. On the other hand, if the items are
properly objected to, they are put in issue and the burden of proof
is on the party claiming them as costs.” (Id. at p. 774.) A court

9
has no discretion to award costs not statutorily authorized.
(Ibid.)
To be awarded as costs, attorney fees must be authorized
by contract, statute, or law. (§ 1033.5, subd. (a)(10); Martinez v.
SAI Long Beach B, Inc. (2025) 108 Cal.App.5th 367, 374.) A
timely motion for attorney fees is often required to request such
fees. (§ 1033.5, subd. (c)(5)(A)(i); Rule 3.1702(b).)
Mirshahi did not submit a worksheet with her cost
memorandum detailing the cost items, nor did she provide such
information in opposition to Pelloni’s motion to tax costs. She
thus left the trial court without a basis for finding the costs were
reasonably necessary to the litigation. (See Applegate v. St.
Francis Lutheran Church (1994) 23 Cal.App.4th 361, 363–364
[under section 1033.5 subdivision (c)(2), items not specifically
allowable under section 1033.5 subdivision (a) and not prohibited
under subdivision (b) may be recoverable if “‘reasonably
necessary to the conduct of the litigation’”].)
Further, Mirshahi did not file a motion for attorney fees.
She did not show attorney fees were authorized by contract,
statute, or law in the trial court, and she does not attempt to do
so on appeal.
Accordingly, the order denying the motion to strike must be
reversed to the extent it permitted Mirshahi to recover attorney
fees and “Other” costs.

10
DISPOSITION
The appeal taken from the judgment and order denying the
second JNOV motion is dismissed. The order denying the motion
to tax costs is reversed in part. The matter is remanded with
directions to enter a new order granting the motion to tax
attorney fees and “Other” costs. The parties shall bear their own
costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

MORI, J.
We concur:

ZUKIN, P. J.

COLLINS, J.

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