Judge: Mary H. Strobel, Case: 20STCP02157, Date: 2022-10-13 Tentative Ruling

Hon. Mary H. Strobel

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

Case Number: 20STCP02157    Hearing Date: October 13, 2022    Dept: 82

Petitioner Stephanie Aba (“Petitioner”) moves for reconsideration pursuant to CCP section 1008(a) of this court’s July 7, 2022, order denying Petitioner’s motion for attorney fees.  Respondent Alliant International University, Inc. (“Respondent”) opposes the motion. 

Petitioner’s Evidentiary Objection

(1)  Overruled. 

Procedural History

            On July 7, 2020, Petitioner filed a petition for writ of administrative mandate against Respondent pursuant to CCP section 1094.5. 

            On August 12, 2020, Respondent answered. 

            On June 21, 2021, Petitioner filed her opening brief in support of the petition.  The court received Respondent’s opposition, Petitioner’s reply, the administrative record, and the joint appendix.

            On August 19, 2021, after a hearing, the court granted the petition in part, and denied the petition in part.  The court’s minute order provides a lengthy discussion of the relevant evidence and the court’s reasoning, which is not repeated here but incorporated by reference.

            On September 10, 2021, the court entered judgment in favor of Petitioner and against Respondent.  The court issued a writ of mandate directing Respondent to set aside the sanctioning decision of Academic Misconduct Termination and to reconsider the appropriate sanction based solely on the factual findings made by the Hearing Panel and in a manner not inconsistent with the court’s ruling. 

            Respondent did not appeal the judgment or writ.

            On October 8, 2021, Respondent filed a return to the writ.  The return states that, after reconsideration, Respondent determined that Petitioner’s dismissal from Respondent’s Clinical Psychology Program was the appropriate penalty.  On October 22, 2021, Petitioner filed an objection to the return.  On October 29, 2021, the court instructed the parties that Petitioner may file a motion to enforce compliance with the writ under CCP section 1097 or file a new writ petition. 

            On January 25, 2022, Petitioner filed her first motion to enforce.  The court received Respondent’s opposition and Petitioner’s reply. 

On February 22, 2022, the court granted the motion to enforce in part, and denied the motion in part. 

On March 24, 2022, Respondent filed a second return to the writ.  The return states that, after reconsideration of mitigating factors, Respondent determined that Petitioner’s dismissal from Respondent’s Clinical Psychology Program was still the appropriate penalty.

On April 18, 2022, Petitioner served and filed a notice of motion for attorney fees without any supporting documents. 

On May 19, 2022, Petitioner filed her motion for attorney fees, including supporting declarations and exhibits.  Respondent filed an opposition and Petitioner filed a reply.

On June 9, 2022, Petitioner filed a second motion to enforce compliance with the writ.  The court received Respondent’s opposition and Petitioner’s reply.

On July 7, 2022, after a hearing, the court denied Petitioner’s second motion to enforce and also Petitioner’s motion for attorney fees.  The court found that the motion for attorney fees was untimely and Petitioner did not show good cause to extend the deadline to file the motion.  The court denied Petitioner’s oral request for a continuance of the hearing on the motion for attorney fees. (See Minute Order dated 7/7/22 at 1 and 6-7.) 

On July 17, 2022, Petitioner filed the instant motion for reconsideration.  The court has received Respondent’s opposition and Petitioner’s reply.

Analysis

Legal Standard

Code of Civil Procedure section 1008 governs applications to reconsider and provides, in relevant 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 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.

….[¶]

(e) This section specifies the court's jurisdiction.... No application to reconsider any order … may be considered by any judge or court unless made according to this section.

“A motion for reconsideration may only be brought if the party moving for reconsideration can offer ‘new or different facts, circumstances, or law’ which it could not, with reasonable diligence, have discovered and produced at the time of the prior motion. . . .A motion for reconsideration will be denied absent a strong showing of diligence.”  (Forrest v. State Of Cal. Dept. Of Corps. (2007) 150 Cal.App.4th 183, 202.)

“A trial court may not grant a party’s motion for reconsideration that does not comply with section 1008.’”  (Cox v. Bonni (2018) 30 Cal.App.5th 287, 312.)

Grounds for Reconsideration

Respondent contends that Petitioner has not presented any new facts, circumstances, or law that justify reconsideration because Petitioner “merely reiterates” arguments made in her reply for the motion for fees and at the hearing on July 7, 2022.  (Oppo. 5.)  Respondent also contends that Petitioner has not provided a sufficient reason for failing to present the “new” evidence earlier.  (Oppo. 5-6.)  The court agrees in part.

When a motion for reconsideration is based on alleged new or different facts, it is not sufficient for the moving party merely to adduce facts not previously presented to the court.  (Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 689-690.) Facts that were known to a party at the time of the hearing or ruling on the order sought to be reconsidered, by their very nature, are not “new” or “different.”  (Id. at 690.) Furthermore, that party must show that diligence was used in uncovering all pertinent facts before the original motion was made.  (Forrest v. State of California Dept. of Corporations (2007) 150 Cal.App.4th 183, 202, disapproved of on other grounds by Shalant v. Girardi (2011) 51 Cal.4th 1164.) This diligence requirement also applies to motions on the basis of different law, and is not satisfied where the moving party presents a legal principle based on a case that was available and could have been provided to the trial court prior to the initial ruling.  (Baldwin v. Home Sav. of America (1997) 59 Cal.App.4th 1192, 1196-1197.) The requirement of introducing new or different facts, circumstances or law cannot be satisfied on the theory that the trial court misinterpreted California law in its existing decision; thus, a party does not rely on “different” law when it reiterates its prior reasoning and authorities.  (Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1500.)

Here, in opposition to the motion for fees, Respondent argued the motion was untimely pursuant to California Rules of Court, Rule 3.1702.  (Oppo. to Mot. for Fees 10.)  In her reply brief for the motion for fees, and also at the hearing on July 7, 2022, Petitioner argued that “[it] makes sense that Ms. Aba would wait to file her motion for attorney fees until after litigating the motion to enforce compliance with the writ because Ms. Aba continued to accrue attorney fees in this litigation.”  (Reply to Mot. for Fees 6.)  Petitioner argued that the time limit in Rule 3.1702 starts to run from entry of an appealable order, which Petitioner argued was “[t]he Court’s February 22, 2022 Order” granting in part and denying in part the first motion to enforce.  (Ibid.)  Petitioner also argued that “[a]ny late filing in this case was inadvertent and based on an honest mistake of law, as described above, and Alliant has expressed no prejudice.”  (Id. at 7:14-15; see also Park Decl. in support of Mot. for Reconsideration (“Parker Decl.”) ¶ 35.)

Petitioner makes these identical arguments in the declaration of Jenna Parker filed in support of the motion for reconsideration.  Parker asserts that “[t]he Court’s February 22, 2022 order on Petitioner’s motion to enforce compliance with the writ is an appealable order” and “[a]ny mistake of law regarding the deadline to file a motion for attorney fees in this rare scenario where entry of the judgment did not conclude the trial court litigation was an honest mistake of interpretation of law by me.”  (Parker Decl. ¶¶ 27-30.)  Because these legal arguments were already presented to the court in the reply for the motion for fees, and at the hearing on July 7, 2022, Petitioner has not identified any new law that would authorize the court to reconsider the July 7, 2022, ruling pursuant to CCP section 1008(a). 

However, in its previous denial of the motion for attorneys’ fees, the court noted Petitioner’s argument that the court should extend the deadline  because of Petitioner’s good faith mistake of law was not supported by evidence such as a declaration of counsel.  To the extent counsel’s declaration is considered new facts, Petitioner must show that those facts could not have been presented to the court, with reasonable diligence, in the reply brief for the motion for fees or at the hearing on July 7, 2022.  Attorney Parker declares that “[o]n reply, I did not attempt to submit new evidence in the form of a declaration showing good cause to extend the deadline to file a motion for attorney fees with the reply brief because Cal. Rules of Court, Rule 3.1702(d) does not require a declaration showing good, it is generally understood that a moving party is not permitted to submit new facts and evidence with their reply papers.”  (Parker Decl. ¶ 34.)  She also states that “I was confident in my belief that the attorney fee motion was filed in a timely manner.”  (Ibid.) 

While new reply arguments are generally not permissible, there is a “good cause” exception, including when the opposing party first raises an important defense in opposition.  (Balboa Ins. Co. v. Aguirre (1983) 149 Cal.App.3d 1002, 1010.)  Because Respondent first raised the timeliness issue in its opposition brief, Petitioner had good cause to submit new evidence in reply regarding the timeliness of the motion for fees.  However, Petitioner’s counsel personal belief that the fee motion was timely does not show reasonable diligence in presenting all relevant facts, circumstances, or law to the court for the July 7, 2022, hearing.

Under these circumstances, it is debatable whether Petitioner has shown grounds to reconsider the motion for attorneys’ fees based on the alleged new evidence in counsel’s declaration.  In any event the court may reconsider on its own motion.  The court analyzes the reconsideration motion on the merits, and would reach the same conclusion as discussed below.    

Timeliness of Motion for Attorney Fees; and Petitioner’s Request for Extension of Time

If the court reconsiders its ruling on the motion for fees, the court reaches the same result and denies the motion as untimely. 

Respondent argued the motion was untimely pursuant to California Rules of Court, Rule 3.1702.  (Oppo. to Mot. for Fees 10.)  Rule 3.1702(b)(1) provides in pertinent part:

A notice of motion to claim attorney’s fees for services up to and including the rendition of judgment in the trial court . . . must be served and filed within the time for filing a notice of appeal under rules 8.104 and 8.108 in an unlimited civil case. . . ..

Rule 8.104 clearly sets for the time by which an appeal from a judgment must be filed.  That rule provides:

a)    Normal time Unless a statute or rules 8.108, 8.702, or 8.712 provides otherwise, a notice of appeal must be filed on or before the earliest of:

(1)

(A) 60 days after the superior court clerk serves on the party filing the notice of appeal a document entitled "Notice of Entry" of judgment or a filed-endorsed copy of the judgment, showing the date either was served;

(B) 60 days after the party filing the notice of appeal serves or is served by a party with a document entitled "Notice of Entry" of judgment or a filed-endorsed copy of the judgment, accompanied by proof of service; or

(C) 180 days after entry of judgment.

Here, the motion for fees sought “attorney’s fees for services up to and including the rendition of judgment in the trial court.”  (See Rule 3.1702(b)(1).)  Notice of entry of judgment was mailed by the clerk on September 10, 2021.  Petitioner was required to file her motion for attorneys’ fees within the time to file an appeal, 60 days after notice of entry of judgment.  Petitioner served and filed two sets of documents on two separate dates: (1) a two-page notice of motion filed and served by electronic transmission on April 18, 2022; and (2) a “further notice of motion” with supporting papers, including a memorandum of points and authorities, two declarations, and exhibits, all filed and served by electronic transmission on May 19, 2022.  Whether the court considers the motion to have been filed April 18, 2022, or May 19, 2022, the motion was untimely by at least five months pursuant to the plain language of Rule 3.1702(b)(1). 

Petitioner argues that the court’s order enforcing the writ is a separately appealable order.  While that may be correct, that fact would not extend the time to appeal from the judgment.  It does not cure the untimeliness of the motion for attorneys’ fees at issue, which sought fees for the writ action through judgment and for the underlying administrative proceedings.   Under Petitioner’s theory, she could file seriatim motions to enforce the judgment (presumably without any time limit to so file) and thereby extend the time to appeal and by analogy to file its motion for attorneys fees.  That would be an illogical interpretation of the rule.    

Petitioner also argues the court has discretion to extend the time for filing a motion for attorneys’ fees for good cause.  Rule 3.1702(d) provides that “[f]or good cause, the trial judge may extend the time for filing a motion for attorney's fees in the absence of a stipulation or for a longer period than allowed by stipulation.”  Petitioner argues that “any late filing in this case was inadvertent and based on an honest mistake of law.”  (Reply for Mot. for Fees 7; Parker Decl. ¶¶ 21-35; and Mot. for Reconsideration 4-5, citing Robinson and Lewow, infra.) 

“A court may grant a request for extension of time to file a motion for attorney's fees even if the motion is not filed until after the deadline for filing an attorney's fees motion under Rule 3.1702….[¶] Counsel's ‘honest mistake of law’ may constitute good cause under Rule 3.1702(d), depending in large part on the reasonableness of the misconception.”  (Robinson v. U-Haul Co. of California (2016) 4 Cal.App.5th 304, 326-328.)  In making that assessment, the court may consider whether the legal issue involved is complex and debatable.  (See Lewow v. Surfside III Condominium Owners’ Assn., Inc. (2012) 203 Cal.App.4th 128, 135.)

Unlike in Robinson and Lewow, Petitioner has not shown that a reasonable mistake of law justifies an extension under Rule 3.1702.  The motion for fees sought “attorney’s fees for services up to and including the rendition of judgment in the trial court” (see 3.1702(b)(1)), including fees incurred well before entry of judgment and those incurred during the administrative proceedings.  In those circumstances, the court finds the time limit in Rule 3.1702(b)(1) to be clear and counsel’s misconception about the time limit to be unreasonable.  Further, Petitioner motion is at least five months late.  Petitioner did not request an extension of time to file the motion until the reply brief was filed on June 9, 2022, about seven months after the time limit had expired.  In the court’s discretion, the court does not find good cause to extend the deadline for Petitioner’s motion for fees.

Conclusion

            The motion for reconsideration is DENIED.