Judge Katherine Chilton, Case 19STCP03300 2023-03-06 Tentative Ruling

Judge: Katherine Chilton, Case: 19STCP03300, Date: 2023-03-06 Tentative Ruling

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Case Number: 19STCP03300 Hearing Date: March 6, 2023 Dept: 25

PROCEEDINGS: MOTION FOR ATTORNEY’S FEES; MOTION FOR RECONSIDERATION

MOVING PARTY: Petitioner Joseph L. Shalant

RESP. PARTY: None

MOTION FOR ATTORNEY’S FEES;

MOTION FOR RECONSIDERATION

((Bus. & Prof. Code § 6203; CCP § 1008)

TENTATIVE RULING:

The hearing on the Motion for Attorney’s Fees and Motion for Reconsideration filed by Petitioner Joseph L. Shalant is CONTINUED TO MAY 10, 2023 at 10:30 a.m. in Department 25 at the SPRING STREET COURTHOUSE. At least 16 court days before the next scheduled hearing, Petitioner must file and serve supplemental papers addressing the errors discussed herein. Failure to do so may result in the Petition being placed off calendar or denied.

SERVICE:

[X] Proof of Service Timely Filed (CRC, rule 3.1300) OK

[X] Correct Address (CCP §§ 1013, 1013a) OK

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) OK

OPPOSITION: None filed as of March 1, 2023. [ ] Late [X] None

REPLY: None filed as of March 1, 2023. [ ] Late [X] None

ANALYSIS:

I. Background

On August 1, 2019, Petitioner Joseph L. Shalant (“Petitioner”) initiated this action by filing a Petition to Confirm Attorney-Client Fee Arbitration Award against Respondent Nicholas Tepper (“Respondent”). The Court granted the Petition on December 5, 2019, and entered a judgment against Respondent in the amount of $3,050.00 plus interest of 10% from August 18, 2018. (12-5-19 Minute Order.) The Court also noted that Petitioner could file a noticed motion if he intended to request attorney’s fees. (Ibid.)

Petitioner filed his first motion for attorney’s fees on February 27, 2020. On October 28, 2020, the Court noted that Petitioner had not cited any authority for its request and continued the hearing to allow Petitioner additional time to file supplemental papers. (10-28-20 Minute Order.) Petitioner did not appear at the hearing scheduled on December 1, 2020, and the Court found that Petitioner had not filed any supplemental papers as requested, so the motion was placed off calendar. (12-1-20 Minute Order.)

On January 22, 2021, Petitioner filed a Motion to Hear Matter Previously Taken Off Calendar re Issuance of Judgment Pursuant to Confirming Arbitration Award, essentially a request for a hearing on the motion for attorney’s fees. On June 23, 2021, the Court granted Petitioner’s Motion in the amount of $2,876.25 in attorney’s fees and $635 in costs. (6-23-21 Minute Order.)

On November 18, 2022, the Court found that non-party Anna Viele is not responsible for Respondents’ outstanding debt due to legal separation and discharged Ms. Viele. (11-18-22 Minute Order.) The Court also vacated its Order, dated June 23, 2021, as Petitioner’s counsel, Steven L. Leighton, was not an active member of the bar at the time the Motion for Attorney’s Fees had been filed. (Ibid.)

On November 28, 2022, Petitioner filed the instant Motion for Attorney’s Fees and Motion for Reconsideration (“Motion”). No opposition has been filed.

II. Legal Standard

Code of Civil Procedure § 1008 provides, in pertinent part:

“(a) 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 an application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state 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.

(b) A party who originally made an application for an order which was refused in whole or in part, or granted conditionally or on terms, may make a subsequent application for the same order 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. For a failure to comply with this subdivision, any order made on a subsequent application may be revoked or set aside on an ex parte motion.

…

(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. No application to reconsider any order or for the renewal of a previous motion may be considered by any judge or court unless made according to this section.”

(Code Civ. Proc. § 1008(a), (b), (e).)

A motion for reconsideration under § 1008 requires that the moving party present new or different facts that were not previously considered by the Court. (New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 212-13.) However, the burden under § 1008 “is comparable to that of a party seeking a new trial on the ground of newly discovered evidence: the information must be such that the moving party could not, with reasonable diligence, have discovered or produced it at the trial.” (Ibid.; Even Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830, 833 [finding that § 1008 imposes the special requirement of having to not only show new or different facts, circumstances, or law, but also to “show diligence with a satisfactory explanation for not presenting the new or different information earlier…”].) Reconsideration cannot be granted based on claims that the court misinterpreted the law in its initial ruling because this is not a "new" or "differen matter. (Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1500.)

III. Discussion

Having reviewed Petitioner’s Motion, the Court notes that it contains several deficiencies.

First, the Court cannot discern whether Petitioner has filed one motion or two motions in one. In the Motion, Petitioner requests attorney’s fees “in the amount of $6,000—which is 16 hours times $375, and certainly no less than the previously requested sum of $5,000.” (Mot. p. 7.) However, on November 18, 2022, the Court vacated its June 23, 2021 Order which had awarded attorney’s fees in the amount of $2,876.20 and costs in the amount of $635.00. (11-18-22 Minute Order.) It is unclear whether Petitioner wishes for the Court to reconsider its November 18, 2022, Order, or to issue a new award of attorney’s fees in an amount between $5,000 and $6,000. The Court notes that combining motions is impermissible as it allows the moving party to avoid paying the requisite filing fees. Filing fees are jurisdictional and it is mandatory for court clerks to demand and receive them. (See Duran v. St. Luke's Hospital (2003) 114 Cal. App. 4th 457,460; Govt. Code § 70617(a).) Thus, Petitioner is ordered to file supplemental papers clarifying whether he requests that the Court reconsider its November 18, 2022, Order, thus reinstating an award of $2,876.25 in attorney’s fees and $635 in costs. Alternatively, Petitioner may file two separate motions and pay two separate filing fees.

Second, in requesting that the Court reconsider its November 18, 2022, Order, Petitioner has not set forth applicable legal authority that would allow the Court to reconsider a previous order. Pursuant to California Rules of Court, Rule 3.1113(b), a motion must contain a “statement of facts, a concise statement of the law, evidence and arguments relied on, and a discussion of the statutes, cases, and textbooks cited in support of the position advanced.” (Cal. Rules of Court, Rule 3.1113(b).) Petitioner’s Motion does not set forth the requisite legal authority for bringing this Motion.

Third, a motion for reconsideration under Code of Civil Procedure § 1008 requires that the moving party present new or different facts that were not previously considered by the Court. (New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 212-13.) Reconsideration cannot be granted based on claims that the court misinterpreted the law in its initial ruling because this is not a "new" or "differen matter. (Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1500.) Here, Petitioner has not presented new or different facts that warrant reconsideration of a previous order.

Fourth, Petitioner has submitted an affidavit along with the Motion. (Mot pp. 35-37.) According to Code of Civil Procedure § 2012, “[a]n affidavit to be used before any court, judge, or officer of this state may be taken before any officer authorized to administer oaths.” Petitioner’s affidavit does not comply with the requirements of § 2012.

Fifth, Petitioner has submitted evidence that is not authenticated, as required by Evidence Code § 1400, et seq., and therefore, cannot be admitted. In the body of the Motion, Petitioner states that “[f]or the sake of the record in the trial court and should this matter go up on appeal, Petitioner affirms herewith that all of the facts stated above are personally known by him and are true and correct.” (Mot. p. 15.) However, this statement does not reference the evidence attached and is not signed under penalty of perjury.

Sixth, the Notice of Motion is defective as it does not contain the address or name of the courthouse where the hearing on the Motion will take place, as required by California Rules of Court, Rule 3.1110(b).

Accordingly, the Court continues the hearing on the Motion and provides Petitioner an opportunity to correct the deficiencies discussed.

IV. Conclusion & Order

For the foregoing reasons,

Petitioner is ordered to give notice.