Judge: Michael E. Whitaker, Case: BC495137, Date: 2023-05-18 Tentative Ruling

Case Number: BC495137    Hearing Date: May 18, 2023    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged).  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOTIONS

The Court of Appeal issued a remittitur in this case on January 10, 2023.  Plaintiff Zulma Unzueta (Plaintiff) filed and served a memorandum of costs on appeal on February 23, 2023.  Defendant Asim Akopyan, M.D. (Defendant) moves to strike Plaintiff’s memorandum of costs on appeal as untimely.  Plaintiff opposes the motion.

Plaintiff separately moves for relief from the untimely filing of the memorandum of costs on appeal under Code of Civil Procedure section 473.  Defendant has not filed an opposition.

ANALYSIS

1. Motion to Strike Memorandum of Costs on Appeal

“Within 40 days after issuance of the remittitur, a party claiming costs awarded by a reviewing court must serve and file in the superior court a verified memorandum of costs under rule 3.1700.”  (Cal. Rules of Court, rule 8.278(c)(1); Lucky United Properties Investment, Inc. v. Lee (2013) 213 Cal.App.4th 635, 655 [“The right to such [costs] comes into being when the order of the reviewing court becomes final”].)  “[I]f the claimant fails to present a cost bill, a waiver of the right to costs results. The time provisions relating to the filing of a memorandum of costs, while not jurisdictional, are mandatory.”  (Hydratec, Inc. v. Sun Valley 260 Orchard & Vineyard Co. (1990) 223 Cal.App.3d 924, 929, citation omitted.)   

Under California Rules of Court, rule 3.1700, a party may move to strike or tax costs by filing and serving a noticed motion no later than 15 days after service of the cost memorandum.  (Cal. Rules of Court, rule 3.1700(b)(1).) 

Here, the Court of Appeal issued the Remittitur in this action on January 10, 2023.  (See Remittitur filed January 10, 2023.)  Under Rule 8.278, Plaintiff was thus required to file and serve a  memorandum of costs on appeal by no later than February 21, 2023.  But Plaintiff filed and served a memorandum of costs on appeal on February 23, 2023.  Thus, the Court finds that Plaintiff’s memorandum of costs on appeal is untimely, resulting in a waiver of such costs. 

2. Motion for Relief from Waiver of Costs on Appeal

In Plaintiff’s opposition to Defendant’s motion to strike and Plaintiff’s motion for relief,  Plaintiff argues she is entitled to relief any waiver resulting from the untimely filing of the memorandum of costs on appeal due to counsel for Plaintiff’s inadvertence and excusable neglect.  Defendant has not filed an opposition to Plaintiff’s motion for relief. 

Code of Civil procedure section 473 “includes a discretionary provision, which applies permissively, and a mandatory provision, which applies as of right.” (Minick v. City of Petaluma (2016) 3 Cal.App.5th 15, 25 (hereafter Minick).) “Section 473 is a remedial statute to be “applied liberally” in favor of relief if the opposing party will not suffer prejudice. Because the law strongly favors trial and disposition on the merits, any doubts in applying section 473 must be resolved in favor of the party seeking relief from default. Unless inexcusable neglect is clear, the policy favoring trial on the merits prevails.” (Minick, supra, 3 Cal.App.5th at p. 24 [cleaned up].)

1.      Mandatory Relief

Notwithstanding any other requirements of this section, the 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

(Code Civ. Proc., § 473, subd. (b), emphasis added.)

Mandatory relief under section 473(b) is only available to orders which are procedurally equivalent to a default.  (See Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 616.)  Accordingly, the mandatory relief provision cannot be applied to Plaintiff’s untimely service of her memorandum of costs on appeal which merely waives Plaintiff’s entitlement to, and recovery of, costs on appeal, and thus does not conclusively deprive Plaintiff of her day in court. (Id. at p. 621.)

2.      Discretionary Relief

The party or the legal representative must seek such relief “within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.” (Code Civ. Proc., § 473, subd. (b); see Rappleyea v. Campbell (1994) 8 Cal.4th 975, 980 [“because more than six months had elapsed from the entry of default, and hence relief under section 473 was unavailable”]; People v. The North River Ins. Co. (2011) 200 Ca.App.4th 712, 721 [motion for relief under section 473 must be brought “within a reasonable time, in no case exceeding six months”]). “The six-month limit is mandatory; a court has no authority to grant relief under section 473, subdivision (b), unless an application is made within the six-month period.” (Arambula v. Union Carbide Corp. (2005) 128 Cal.App.4th 333, 340, citations omitted.)

Plaintiff argues her failure to timely serve her memorandum of costs on appeal on Defendant is a result of Plaintiff’s counsel’s medical condition and heavy workload at the time, as well as a staffing shortage at Plaintiff’s counsel’s firm, which led to Plaintiff’s counsel inadvertently missing the deadline to serve the memorandum of costs.  Plaintiff advances the declaration of Steven K. Ridgill (Counsel), in support of the foregoing argument.  Counsel avers to the following:

·         On January 10, 2023, as soon as I had noticed that the Remittitur had come down, I researched the deadline for submitting a memorandum of costs on appeal because I knew that Plaintiff’s counsel had spent a significant sum prosecuting the appeal. I identified the rule as Rule of Court 8.278(c)(1) requiring the costs bill to be filed within 40 days of the remittitur. I asked our paralegal to schedule the deadline per the Court Rule. He did so and advised me that the memorandum of costs on appeal was due February 20, 2023, which was a Court holiday: President’s Day.

·         On or around February 17, 2023, I believe during a calendaring meeting, I had a short oral conversation with lead counsel, Ms. Yana Henriks, about the costs memorandum. Ms. Henriks advised that I should submit the memorandum before the impending deadline, as there was a busy week ahead. I assured her that I would do so myself.

·         However, a medical condition of mine, coupled with our firm’s staffing shortage, and an extraordinarily busy set of tasks to complete, led to my failure to submit the memorandum on time:

·         At the time, one of our associate attorneys who had been assigned to handle several civil rights matters for the firm had recently left and we were experiencing a staffing shortage with only two associates, myself and one other associate with less experience with the firm, remaining. For this reason, on February 20, 2023, I was obliged to prepare a complex brief in anticipation of a hearing on a discovery dispute in a complex, federal civil rights matter involving over a dozen parties. I was also obliged to prepare for the deposition of a correctional nurse in the same case, scheduled for the following day, which took me until after 10:00 p.m. to complete. I did have on my mind the completion of the costs memorandum, but I believed that the deadline would be automatically extended to February 21, 2023, because February 20 was a Court holiday.

·         On February 21, 2023, I participated in a full day deposition of a correctional nurse in a complex, federal civil rights case. Following the deposition, I worked until just before midnight working with an expert witness, researching, and writing to prepare oppositions to three (3) defense motions for summary judgment on the Privette v. Superior Court (1993) 5 Cal.4th 689 issue in another Superior Court case: Kelly v. Westfield Topanga Owner, LLC, LASC no. 21STCV02534, which were due on February 23, 2023.

·         On February 22, 2023, at around 10:00 p.m., I received an email from Ms. Henriks enquiring about the filing of the Unzueta memorandum of costs on appeal. I advised Ms. Henriks that I had forgotten to file the costs bill and would do so immediately and submit a request to the Court for relief from waiver due to attorney fault pursuant to C.C.P. § 473(b). I was still at the office at the time, continuing work on the three MSJ oppositions. I immediately stopped what I was doing and began preparing the memorandum of costs on appeal. Despite my best efforts, I was unable to finish, and electronically serve and e-file the costs bill until after midnight, at about 1:34 a.m. on February 23, 2023.

·         In April of 2023, I was diagnosed with severe sleep apnea, which I suffered from at the time of the events described above. One of the consequences of that condition is lack of sleep, or frequently interrupted, un-restful nights of sleep that leave one feeling fatigued and unrested upon waking up in the morning. I had had such nights on the nights of February 19th, 20th and 21st, 2023, and one symptom I experience with lack of sleep is forgetfulness. These sleepless nights, coupled with my unusually extended work schedule and a number of crucial assignments led me to forget to complete and submit the Plaintiff’s memorandum of costs on appeal no later than February 21, 2023. Fortunately, I am currently receiving treatment for my sleep apnea through UCLA Health.

(Declaration of Steven K. Ridgill, ¶¶ 4-6.)

            Based upon the declaration of Plaintiff’s counsel,  the Court finds that Plaintiff has sufficiently established that the failure to timely file and serve Defendant with the memorandum of costs on appeal under Rule 8.278 was due to Plaintiff’s counsel’s inadvertence, mistake and excusable neglect.

CONCLUSION AND ORDER

Therefore, the Court grants Plaintiff’s motion for relief from the waiver of costs on appeal pursuant to Code of Civil Procedure section 473, and as such, the Court denies Defendant’s motion to strike the memorandum of costs on appeal as moot. 

Plaintiff shall provide notice of the Court’s rulings and file a proof of service of such.