Judge: Katherine Chilton, Case: 19STCP03300, Date: 2023-05-10 Tentative Ruling

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Case Number: 19STCP03300     Hearing Date: May 10, 2023    Dept: 25

PROCEEDINGS:      AMENDED MOTION FOR RECONSIDERATION

MOVING PARTY:   Petitioner Joseph L. Shalant

RESP. PARTY:         None.

MOTION FOR RECONSIDERATION

(CCP § 1008)

TENTATIVE RULING:

Petitioner Josepha L. Shalant’s Amended Motion for Reconsideration is DENIED. Notwithstanding this decision, the Court on its own sua sponte motion reconsiders its November 18, 2022 Order by reinstating the prior grant of attorney fees and costs.

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 on May 4, 2023                                    [   ] Late                      [X] None

REPLY:                     None filed as of May 4, 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 Respondent’s 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 a Motion for Attorney’s Fees and Motion for Reconsideration. On March 6, 2023, the Court identified various defects in this motion preventing the Court from reaching a determination on the merits. (3/6/23 Minute Order.) Specifically, the Court found that it was difficult to discern whether Petitioner was seeking either reconsideration of the Court’s November 18, 2022 Order vacating its June 24, 2021 Order, which had previously awarded attorney fees in the amount of $2,870.20 and costs in the amount of $635, or an issuance of attorney fees in an amount between $5,000 and $6,000. (Id. at p. 4.) Additionally, the Court found that Petitioner did not specify under what legal authority that would allow reconsideration of the Court’s November 18, 2022 Order. (Ibid.) Furthermore, the Court found that the motion did not comply with the requirements under Code of Civil Procedure §§ 1008 and 2012, Evidence Code § 1400, and California Rules of Court, Rule 3.1110, subdivision (b). As such, the Court continued the hearing to May 10, 2023 and instructed Petitioner to file and serve supplemental papers to correct the aforementioned defects.

On March 27, 2023, Petitioner filed the instant Amended Motion for Reconsideration (the “Amended Motion”). No opposition brief was 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, subds. (a), (b), (e).)

III.            Discussion

Based on Petitioner’s Amended Motion, he clarifies that he seeks reconsideration of two components of the Court’s November 18, 2022 Order: (1) the vacatur of a prior order granting Plaintiff’s motion for attorney fees and costs in the reduced total amount of $3,505.20; and (2) the finding that non-party Anna Viele was not responsible for the outstanding debt based on the date of separation from Respondent. (See generally, Amended Mot.) Upon review of the Amended Motion, it is clear that the basis is that Petitioner contests the legal grounds on which the November 18, 2022 Order rested. As previously articulated, a motion for reconsideration under Section 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, reconsideration cannot be granted based on claims that the court misinterpreted the law in its initial ruling because this is not a "new" or "different" matter, which Petitioner is doing here. (Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1500.) For this reason, Petitioner’s Amended Motion is denied.

Arguably, the Court may on its own motion reconsider a prior order in order to correct an error. (Le Francois v. Goel (2005) 35 Cal.4th 1094, 1106-1107.) “[T]he stated legislative purpose behind the 1992 amendment to section 1008 was to conserve judicial resources. . . . Forcing the parties to proceed where there is recognized error in the case would result in an enormous waste of the court's and the parties' resources.” (Case v. Lazben Financial Co. (2002) 99 Cal.App.4th 172, 187.) For the sake of addressing Petitioner’s concerns that the November 18, 2022 Order was without any support, the Court shall conduct its own analysis.

In terms of the Court’s own sua sponte decision to reconsider and vacate the award of attorney fees and costs, it is without dispute that Petitioner’s prior counsel, Mr. Steven L. Leighton, was an inactive member of the California State Bar as of December 3, 2020. Even though the motion that was ultimately granted on June 23, 2021 had relied on Mr. Leighton’s February 27, 2020, Petitioner was effectively a self-represented litigant by that time. Thus, the only attorney fees that could be considered and awarded pursuant to Business and Professions Code section 6203, subdivision (c), were those that Petitioner “actually [paid] or [became] liable to pay in exchange for the legal representation.” (See Trope v. Katz (1995) 11 Cal.4th 274, 280.) Mr. Leighton’s declaration claimed to have expended roughly 17.5 in in confirming the underlying arbitration award. The Court ultimately found that only 7.67 hours of attorney time was reasonably expended. (See 2/27/20 Leighton Decl.) While it is unclear from the record as to whether Petitioner actually paid Mr. Leighton for his services, it is clear from  Petitioner became indebted to Mr. Leighton based on services he provided while he was still an active member of the California State Bar. Thus, the Court acknowledges this mistake and reinstates its June 23, 2021 Order.

It is further noted that Petitioner seeks to argue at a later date for the purposes of increase the attorney fee. However, this request is wholly inappropriate because the deadline to seek reconsideration has long past and Petitioner is only entitled to recover attorney fees that he had actually paid or became liable for.

Next, the Court shall determine whether there was any error in discharging Ms. Viele from liability for the underlying judgment based on the date of separation she provided to the Court. Previously, the Court found that the date of separation provided by Ms. Viele was valid. (See 11/18/22 Order.) While Petitioner contends that Ms. Viele and Respondent still reside with one another, this is not dispositive. Under Family Code § 70, the date of separation is defined as “a complete and final break in the marital relationship . . ., as evidenced by both of the following: (1) The spouse has expressed to the other spouse his or her intent to end the marriage. (2) The conduct of the spouse is consistent with his or her intent to end the marriage.” Thus, there is no requirement that the married couple live apart to be considered separated. (See also Fam. Code § 2320.) Moreover, Ms. Viele testified under oath as to the date of separation.  Petitioner, in contrast, provided only hearsay, speculation and no admissible evidence to attempt to contradict that testimony.  Accordingly, the Court does not find error in discharging Ms. Viele.

Accordingly, because Petitioner did not submit new facts as required by Code of Civil Procedure § 1008, the Amended Motion is DENIED. Notwithstanding this decision, the Court on its own sua sponte motion reconsiders its November 18, 2022 Order by reinstating the prior grant of attorney fees and costs in the amount of $3,521.25 ($2,876.25 in fees and $635.00 in costs).

IV.           Conclusion & Order

For the foregoing reasons, Petitioner Joseph Shalant’s Motion for Reconsideration is DENIED. Notwithstanding this decision, the Court on its own sua sponte motion reconsiders its November 18, 2022 Order by reinstating the prior grant of attorney fees and costs in the amount of $3,521.25.

Moving party is ordered to give notice.