Judge: Curtis A. Kin, Case: 21STCP04028, Date: 2023-08-10 Tentative Ruling

Hon. Curtis Kin The clerk for Department 82 may be reached at (213) 893-0530.

Case Number: 21STCP04028    Hearing Date: February 6, 2024    Dept: 82

MOTION FOR RELIEF FROM DENIAL OF MOTION FOR ATTORNEY FEES ON THE GROUNDS OF UNTIMELY FILING PURSUANT TO CCP 473(B)

Date:               2/6/24 (1:30 PM)

Case:                           Cynthia Mabus v. Culver City et al. (21STCP04028)

TENTATIVE RULING:

Petitioner Cynthia Mabus’ Motion for Relief from Denial of Motion for Attorney Fees on the Grounds of Untimely Filing Pursuant to CCP 473(b) is DENIED.

Pursuant to CCP § 473(b), petitioner Cynthia Mabus moves for relief from the Court’s denial of petitioner’s motion for attorney fees based on mistake, inadvertence, surprise, or excusable neglect.

However, defendant sought the same relief in the ex parte application to extend the deadline for filing a motion for attorney fees heard on August 10, 2023. (McEwen Decl. ¶ 24 & Ex. E.) Petitioner sought relief from the untimely filing of the fee motion under Rule of Court 3.1702(d) and CCP § 473(b) on the ground that counsel did not know that CCP § 1013(a) did not operate to extend the time to file a notice of appeal in the event of service by mail. (McEwen Decl. ¶ 24 & Ex. E at Notice at 1:25-2:4; Points and Authorities at 1:24-2:2, 7:19-27, 9:26-10:2.)

On August 10, 2023, the Court denied petitioner’s ex parte application. (McEwen Decl. ¶ 26 & Ex. A to Ex. F.) The Court acknowledged petitioner sought an extension of time to file a motion for attorneys’ fees pursuant to both Rule of Court 3.1702(d) and CCP § 473. With respect to Rule of Court 3.1702(d), the Court explained that it may extend the time for filing a motion for attorney fees for “good cause.” With respect to CCP § 473(b), the Court stated that it had more latitude to find good cause under Rule of Court 3.1702(d) than granting relief under CCP § 473(b). The Court then concluded: “Given the clear and unambiguous language concerning the inapplicability of CCP § 1013(a) to the time to file a notice of appeal (and thus the instant fee motion), this Court cannot find that the issue of timeliness was either complex or debatable. As such, this Court does not find that petitioner's counsel made an honest mistake of law to support a finding of good cause or excusable neglect.” By reference to excusable neglect, as well as having stated that good cause was a more lenient standard that the standard under CCP § 473(b), the Court necessarily found that petitioner was not entitled to relief under CCP § 473(b).

In the instant motion, petitioner, by way of counsel, presents the same argument of mistake and again invokes CCP § 473(b). (Notice of Motion at 1:27-2:2; Points and Authorities at 2:5-13, 10:13-16; Sunukjian Decl. ¶ 20 [counsel had not known that CCP § 1013 did not extend time to file notice of appeal].)

“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.” (Powell v. County of Orange (2011) 197 Cal.App.4th 1573, 1577.) Because petitioner asks the Court to decide whether, pursuant to CCP § 473(b), she is entitled to relief from the Court’s previous finding that the fee motion was untimely—the same matter on which the Court ruled on August 10, 2023—the Court deems this motion a motion for reconsideration under CCP § 1008(a).

The purpose of CCP § 1008 is “to conserve judicial resources by constraining litigants who would endlessly bring the same motions over and over, or move for reconsideration of every adverse order and then appeal the denial of the motion to reconsider.” (Even Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830, 839–40, internal quotations omitted.)

“When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the 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, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order.” (CCP § 1008(a).) When a party requests reconsideration, the deadline set forth in CCP § 1008(a) is jurisdictional. (Morite of California v. Superior Court (1993) 19 Cal.App.4th 485, 490; Kerns v. CSE Ins. Group (2003) 106 Cal.App.4th 368, 391 [“[W]e hold that the procedural prerequisites set forth for reconsideration of orders and renewal of motions previously denied are jurisdictional as applied to the actions of parties to civil litigation.”].) 

Here, petitioner’s prior ex parte application for CCP § 473(b) relief was denied on August 10, 2023. Petitioner waived notice. (8/10/23 Minute Order; CCP § 1019.5 [“When a motion is granted or denied, unless the court otherwise orders, notice of the court’s decision or order shall be given by the prevailing party to all other parties or their attorneys . . . unless notice is waived by all parties in open court and is entered in the minutes”].) Accordingly, petitioner had 10 days from August 10, 2023, or August 21, 2023 (since August 20, 2023 was a Sunday) to file a motion for reconsideration. This motion was untimely filed on December 7, 2023.

Further, a party moving for reconsideration of a prior ruling “must provide a satisfactory explanation for the failure to produce the evidence at an earlier time.” (New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 212.) Here, petitioner does not present any new facts, circumstances, or law upon which she files the instant motion. Indeed, petitioner presents the same arguments that were presented and rejected in the previously denied ex parte application.

CCP § 1008(b) allows a party to file a renewed motion “upon new or different facts, circumstances, or law, in which case it shall be shown by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.” (CCP § 1008(b).) A renewed motion is not subject to a 10-day filing deadline. Even if petitioner could avail herself of CCP § 1008(b), the supporting affidavit must show “what ‘new or different facts, circumstances, or law are claimed’ [citation] to justify the renewed application, and show diligence with a satisfactory explanation for not presenting the new or different information earlier.” (Even Zohar, 61 Cal.4th at 833, citing CCP § 1008(b).) As stated above, petitioner does not present any new facts or law to warrant the filing of a renewed motion. Accordingly, the Court does not have jurisdiction under CCP § 1008(b) to reconsider the denial of extension of time to file a fee motion. (See CCP § 1008(e) [“This section specifies the court’s jurisdiction with regard to applications for reconsideration of its orders and renewals of previous motions, and applies to all applications to reconsider any order of a judge or court, or for the renewal of a previous motion, whether the order deciding the previous matter or motion is interim or final”].) Even if the Court had jurisdiction to hear a renewed motion, whether to grant reconsideration would still be within the Court’s discretion. (Film Packages, Inc. v. Brandywine Film Productions, Ltd. (1987) 193 Cal.App.3d 824, 830.) Because petitioner’s counsel does not provide any new reasons why the mistake to not consider the entirety of CCP § 1013(a) was excusable, the Court would decline to exercise such discretion for the same reasons stated in the August 10, 2023 ruling.

Citing Ron Burns Construction Co., Inc. v. Moore (2010) 184 Cal.App.4th 1406, petitioner argues that a motion that satisfies CCP § 473 cannot be barred under CCP § 1008. In Ron Burns, the plaintiff filed an ex parte application for an order finding that a motion for attorney fees was still timely. (Ron Burns, 184 Cal.App.4th at 1412.) The trial court denied the ex parte application, finding that the issue of timeliness could be addressed in a formal, noticed motion. (Ibid.) The plaintiff subsequently filed a motion for attorney fees and incorporated the ex parte application by reference. (Ibid.) The trial court denied the motion as untimely. (Ibid.) The plaintiff subsequently found a motion for relief from default under CCP § 473. (Ibid.) The trial court ruled that the motion under CCP § 473 was an improper attempt to circumvent CCP § 1008. (Ibid.)  

The Court of Appeal found that the plaintiff’s mistake that caused the fee motion to be denied as untimely was excusable neglect as a matter of law. (Ron Burns, 184 Cal.App.4th at 1416.) Citing Standard Microsystems Corp. v. Winbond Electronics Corp. (2009) 179 Cal.App.4th 868, the Court of Appeal in Ron Burns then found that the subsequent motion under CCP § 473 did not seek to modify the order denying attorney fees, but rather asserted a different statute and different facts. (Ron Burns, 184 Cal.App.4th at 1419-20.) The Court of Appeal found that even though the fee motion incorporated the earlier ex parte application, the ex parte application did not bar CCP § 473 motion because it was denied without prejudice. (Id. at 1420.) Relying on Standard Microsystems, the Court of Appeal further found that because CCP § 473 is remedial, it must be construed liberally and must prevail over CCP § 1008 to the extent the two statutes conflict. (Ibid.)

However, in Even Zohar, the California Supreme Court found that CCP § 1008 governs renewed applications under CCP § 473(b). (Even Zohar, 61 Cal.4th at 833.) The high court held that CCP § 1008 “expressly applies to all renewed applications for orders the court has previously refused.” (Id. at 840.) CCP “section 473(b) [does not] purport to authorize unlimited repetitions of the same motion.” (Id. at 841.) Accordingly, CCP section 473(b) and 1008(b) do not conflict. (Id. at 841-42.) Notably, the Supreme Court disapproved of Standard Microsystems and Ron Burns to the extent that they conflict with its decision in Even Zohar. (Id. at 844 [“[L]ower courts have expressed the view that motions for relief . . . under section 473(b) need not comply with section 1008.  None of these decisions offers a persuasive justification for its conclusion on that point”].)

Thus, in accordance with Even Zohar, CCP § 1008 governs this renewed motion for relief under CCP § 473(b). As stated above, petitioner seeks relief from the late filing of the motion for attorney fees on the same ground as was asserted in the ex parte application, i.e., CCP § 473(b), which was denied on August 10, 2023. Petitioner has not cited any new facts or law that warrants reconsideration of the August 10, 2023 order.

Perhaps attempting to analogize to the finding in Ron Burns that the trial court denied the ex parte application without prejudice, petitioner also argues that, during the August 10, 2023 hearing, the Court stated that it would consider a subsequently noticed motion under CCP § 473(b). (Sunukjian Reply Decl. ¶¶ 1-2 & Ex. A.) It is the Court’s duty to consider all motions that are properly reserved, noticed, and filed.  That the Court would have stated it considers any motion properly reserved, noticed, and filed is not surprising.  Surely, however, the Court does not provide an advisory opinion that it would reach the merits of a motion that fails procedurally. In the absence of a transcript of proceedings demonstrating otherwise, the Court must reject petitioner’s claim that the Court stated it would consider a subsequently filed CCP § 473(b) on the merits irrespective of any procedural defects, including the failure to satisfy the requirements of CCP § 1008. In any event, while dubious, if the Court had made any such statement, it would not prevent the Court from properly applying the requirements of § 1008 now.  (See generally Even Zohar, 61 Cal.4th at 840 [noting court’s inherent powers include ability to reconsider previous interim orders on its own motion].)

For the reasons stated above, the Court has no jurisdiction to reconsider the August 10, 2023 denial of petitioner’s ex parte application to extend the deadline to file a fee motion. Even if the Court had jurisdiction, the Court would not grant such relief. In this vein, the Court notes that arguably the Court could not have reached in the first instance petitioner’s request for relief under CCP § 473(b) on August 10, 2023, because there was no prior order from which petitioner could obtain relief. (See CCP § 473(b) [“The court may…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”].)  Thus, arguably there is no § 473(b) decision to reconsider.  Regardless, to the extent petitioner is now entitled to seek relief based on mistake or excusable neglect under CCP § 473(b), the Court would deny the motion for the reasons stated in its August 10, 2023 ruling, incorporated by reference herein. (McEwen Decl. ¶ 26 & Ex. A to Ex. F.) Simply put, because CCP § 1013(a) expressly states that it does not apply to extend the time to file a notice of appeal, counsel’s neglect is not excusable. That conclusion is made all the more clear upon review of the practice guide petitioner’s counsel consulted, which states clearly in bold “No extension for notice of entry of judgment by mail” among the “General Rules” under the section entitled “Calculating Appeal Time Periods,” with the further explanation that CCP § 1013 “extensions do not enlarge the time for filing a notice of appeal (i.e., the appeal deadline is not extended when notice of entry of judgment is served by mail.” (Sunukjian Decl. ¶¶ 10-11 & Ex. A at 4-5).

Accordingly, petitioner is not entitled to relief under CCP § 473(b).

The motion is DENIED.