Judge: Lisa R. Jaskol, Case: 19STCV22382, Date: 2023-09-07 Tentative Ruling
Case Number: 19STCV22382 Hearing Date: September 7, 2023 Dept: 28
Having considered the moving papers, the Court rules as follows.
BACKGROUND
On June 26, 2019, Plaintiff Chutney Berry (“Plaintiff”) filed this action against Defendants Ruben Blanco (“Blanco”), Juan Mariscal, Anna Mariscal and Does 1-100 for strict liability and negligence. Plaintiff later amended the complaint to include Defendant Cary Adams (“Adams”) as Doe 1.
On December 4, 2019, Blanco filed an answer. On March 20, 2020, Adams filed an answer. On January 8, 2021, the Court dismissed Anna Mariscal and Juan Mariscal with prejudice at Plaintiff’s request.
On May 19, 2021, the Court granted Adams’s motion for summary judgment. The Court entered judgment for Adams on June 18, 2021.
On August 19, 2022, the Court dismissed the action without prejudice. On March 14, 2023, the Court vacated the dismissal on Plaintiff’s motion under Code of Civil Procedure section 473, subdivision (b).
On May 9, 2023, Blanco filed a motion for mandatory attorney’s fees and costs to be heard on September 7, 2023. Plaintiff has not filed an opposition.
Trial is currently scheduled for October 18, 2023.
PARTY’S REQUEST
Blanco requests that the Court award attorney fees and costs of of $3,922.02 against Plaintiff’s counsel under Code of Civil Procedure section 473, subdivision (b).
LEGAL STANDARD
“[T]he court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect. The court shall, whenever relief is granted based on an attorney’s affidavit of fault, direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties. However, this section shall not lengthen the time within which an action shall be brought to trial pursuant to Section 583.310.”
(Code Civ. Proc., § 473, subd. (b).)
DISCUSSION
Blanco asserts Plaintiff did not serve the motion to set aside the dismissal on Blanco and therefore Blanco did not file an opposition or request fees and costs under Code of Civil Procedure section 473, subdivision (b), earlier.
Blanco requests $3,922.02 based on “a total of more than 9.5 hours in preparing for trial, communications with court clerk, review of plaintiff's deceptive moving papers, and notice of ruling, and resulting court orders, preparation of the attached objection as Exhibit ‘1’ hereto and compelling motion” at a rate of $400 per hour for a total of $3,800.00. Blanco also requests e-filing costs of $133.02.
The statute authorizes “reasonably compensatory legal fees and costs.” (Code Civ. Proc., § 473, subd. (b).) Blanco has not broken out the time his counsel spent on each of the tasks listed above, making it difficult for the Court to evaluate the reasonableness of the request. Blanco also has not explained how the attorney work for which he seeks compensation was made necessary by the motion to set aside the dismissal.
The Court awards $1,060.00 in sanctions, based on 4 hours of attorney’s work at a reasonable rate of $250.00 per hour and one $60 filing fee.
CONCLUSION
The Court GRANTS Defendant Ruben Blanco’s motion for attorney’s fees and costs under Code of Civil Procedure section 473, subdivision (b).
Plaintiff’s counsel Jessie L. Halpern is ordered to pay Blanco or Blanco’s counsel $1,060.00 in attorney's fees and costs within 30 days of the hearing on this motion.
Moving party is ordered to give notice of this ruling.
Moving party is ordered to file the proof of service of this ruling with the Court within five days.