Judge: Mark H. Epstein, Case: 19SMCV00057, Date: 2022-12-16 Tentative Ruling

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Case Number: 19SMCV00057    Hearing Date: December 16, 2022    Dept: R

The application is GRANTED.  Plaintiff prevailed in a jury trial against defendant.  By statute, she is entitled to recover her fees, but there is a time limit by which the fees must be sought.  The last day to file a motion to seek the fees was December 2, 2022 (a Friday).  Plaintiff’s counsel declares that the papers were ready to be filed that day and that she attempted to file them that day using the court’s e-filing system.  However, the court’s system was not functioning properly and the filing attempt failed.  Plaintiff’s counsel states that she diligently attempted to file the papers for the remainder of Friday and on Saturday but that the problem persisted.  The documents were finally uploaded on Sunday and have a file stamp of Monday.  The hearing was set for December 30, 2022.  Plaintiff argues that pursuant to the Los Angeles Superior Court Amended Order dated May 3, 2019 (concerning electronic filing),where a document is not filed due to an interruption of service, the court may deem it filed as of the attempt.  (Par. 7(a)(i).)

Defendant opposes the motion.  Defendant contends that plaintiff’s filing was an exercise in gamesmanship.  While defendant does not contest any of the facts in plaintiff’s counsel’s declaration (that is, that an attempt to file was timely made but that the attempt was unsuccessful due to technical problems at the court’s end), defendant still contends that the motion should be denied.  Among other things, defendant notes that notice of entry of judgment was sent (by plaintiff) on October 3, 2022, so she had plenty of time to file the fee motion.  Instead, defendant notes, plaintiff waited until the last day.  Defendant argues that due to the way papers are filed, defendant’s opposition would be due on Friday December 16, 2022 and defendant would lose the benefit of two weekends (one of them a long weekend).  Defendant also states that the motion was served before it was filed.  According to defendant, Code of Civil Procedure clearly states that a motion must be filed before it was served, and thus the service (which was made on December 2, 2022) was improper.

Defendant’s arguments are meritless, and the question is not a close one.  The order is clear and applies on its face: where there is a timely attempt to file but the filing is not possible due to an interruption at the court’s end, the court has the discretion to deem the motion filed on the date of the attempt.  Plaintiff has established that.  Even assuming, without deciding, that the court has discretion in the matter, the court would not exercise it to deprive plaintiff of fees.  True, plaintiff could have filed earlier, and many prudent parties file things a day early to allow things to go wrong at the (now virtual) filing window.  But that is not a legal requirement.  The court also notes that plaintiff is seeking a very large fee award.  The papers in support thereof are voluminous.  They could not be prepared in a day.  And during the same period after the judgment was entered, plaintiff had to contend with defendant’s motion for a new trial and motion for a JNOV, both of which are substantive and substantial motions (and both of which will be decided on Monday).  The bottom line is that while it is true that plaintiff did filed on the last day, plaintiff violated no rule in doing so.  Further, plaintiff’s notice to the defense was timely.  It was given on December 2, 2022.  To the extent that there was any gamesmanship, defendant could have sought an agreement with plaintiff to continue the hearing for a few days to allow it the benefit of the weekend.  While plaintiff here refused to continue the hearing for the three weeks defendant sought, the “gamesmanship,” if any, would be based on the Friday filing and essentially minimal notice over the holidays (although the opposition is due before any holiday).  That would be cured by a very short continuance.

As to section 1005, defendant misreads the statute.  The statute does not actually say that the moving papers must be filed before they are served (although that might be the safer practice).  What it says is that “the moving and supporting papers served shall be a copy of the papers filed or to be filed with the court.”  (Emphasis added.)  A plain reading of that language suggests that a party is free to serve before filing so long as what is served is an exact copy of what is “to be filed with the court.”  There is no violation.  (And to the extent that there was any violation, it worked to defendant’s favor, not plaintiff’s.)

If defendant wants or needs an extension of time, the court will discuss it.  The court does not understand plaintiff’s claim that continuing the hearing will prejudice plaintiff.  An appeal has been filed and the judgment will be stayed pending the appeal—including any fee award (which is likely to be appealed as well).  Given that, continuing the motion works no prejudice that the court can see.  Frankly, plaintiff should have been more willing to compromise on that offer.  While this is not a case where there is or ought to be a quid pro quo, it is a case where the professional courtesy of stipulating to the December 2, 2022 filing date could have been met with a professional courtesy regarding scheduling.