Judge: Richard Y. Lee, Case: 30-2019-01052734, Date: 2022-10-13 Tentative Ruling

Plaintiff, Sanford Edward (“Plaintiff”) seeks relief from his legal representative’s mistake or excusable neglect resulting in an order of this Court dated August 4, 2022, denying his Second Motion for Attorney’s fees and seeks leave to re-file the Motion with the addition of billing statements reflecting the time expended upon which the motion is based.

Plaintiff’s counsel, Gary Bostwick (“Bostwick”), contends that on May 17, 2022, Plaintiff moved for attorneys’ fees and costs incurred by Plaintiff in opposing an appeal of Defendant David Ellis (“Ellis”) (the “Second Fees Motion”), and that when the motion was filed, Bostwick believed in good faith that his declaration supporting the motion provided sufficient information to calculate fees under the Lodestar method because it stated the number of hours counsel worked on tasks related to the appeal and stated the hourly rate for each attorney who performed the work. Plaintiff provides that on July 2, 2022, Bostwick was involved in an accident requiring emergency hip replacement surgery, rendering him immobile, hospitalized, and medicated until July 15, 2022, and that the opposition was filed while Bostwick was in recovery at home, affecting the review of Ellis’s opposition brief, preparation of the reply, and consultation with Deborah Drooz to prepare her to argue the motion at the hearing. Bostwick provides that he offered to provide a billing statement if requested to do so in response to Ellis’s argument that Plaintiff had not supplied sufficient information to enable the court to determine whether the requested attorney’s fees were reasonable, and that he is the only person who could have provided such statement, but that the Court denied the motion on the basis that insufficient information was provided to the Court to allow it to consider whether the hours claimed were reasonably expended. Plaintiff contends that Bostwick’s errors constitute excusable mistakes under Code of Civil Procedure section 473(b) as Plaintiff’s counsel filed a meritorious motion for attorneys’ fees and failed to attach invoices on the mistaken belief that he did not have to do so and the good faith belief that should the court require more detailed information from the invoices, the court would allow their filing. Plaintiff also contends that Ellis will suffer no prejudice if this motion is granted compared to what would have occurred if Bostwick had not made the errors he did, and that the instant motion is not barred by Code of Civil Procedure section 1008 as Plaintiff is not requesting this court modify or otherwise reconsider its order on the attorney’s fees motion.

Ellis contends that the instant motion for relief is a disguised and motion for reconsideration of the trial court’s denial of Plaintiff’s Second Fees Motion as Plaintiff asks that he be allowed to re-file his Second Fees Motion for the obvious purpose of asking the Court to vacate its original order and replace it with an order granting the second fees motion. Ellis contends that it is untimely and is not based upon new or different facts, circumstances, or law as required under Code of Civil Procedure section 1008. Ellis also contends that even if it was properly a motion for relief under Code of Civil Procedure section 473(b), Plaintiff has not demonstrated mistake, inadvertence, surprise, or excusable neglect because Plaintiff knew that the Court needed detailed and authenticated time records in order to perform the lodestar calculation because the Court directed Plaintiff to provide just that when he filed his first motion for attorneys’ fees such that it was neither excusable nor reasonable for Plaintiff to fail to attach his invoices to support his Second Fees Motion, or to think that he would not need to supply supporting documentation for a fees request more than three times the size of a fees request for which the Court expressly stated that it required authenticated documentation.

The initial issue raised by the parties is whether the instant motion is properly a motion for relief under Code of Civil Procedure section 473(b), or if it is actually a motion for reconsideration under Code of Civil Procedure section 1008.

Plaintiff cites to Standard Microsystems Corp. v. Winbond Elecs. Corp. (2009) 179 Cal. App. 4th 868 (“Standard Microsystems”), which was disapproved of in Even Zohar Constr. & Remodeling, Inc. v. Bellaire Townhouses LLC (2015) 61 Cal. 4th 830, 837-840 (“Even Zohar”) to the extent that Even Zohar found that a defendant must comply with Code of Civil Procedure section 1008 when filing a renewed application for relief from default under Code of Civil Procedure section 473(b) and finding that there is no conflict between the two sections, to support the proposition that the instant motion is not a motion for reconsideration based upon the Court of Appeal’s discussion of what constitutes a motion for reconsideration. Ellis does not address this case in his opposing papers.

The Court of Appeal in Standard Microsystems, described a motion for reconsideration under Code of Civil Procedure section 1008, which was not disapproved of in Even Zohar, as follows:

“A motion for reconsideration is thus one that explicitly directs the court's attention to a previous order and seeks to “modify, amend, or revoke [that] order.” (§ 1008(a).) This description is consistent, as far as it goes, with the meaning of the phrase “motion for reconsideration” as used by courts when section 1008 was first amended in 1978 to refer to “reconsider [ation].” (See Stats.1978, ch. 631, § 2, p. 2084.) Case law used that phrase to describe a motion explicitly asking the court to “reconsider” an order previously made, and to make a different order in its place—in effect, to reverse itself. (See, e.g., Pacific Tel. & Tel. Co. v. Redevelopment Agency (1977) 75 Cal.App.3d 957, 962, 142 Cal.Rptr. 584 [“motion for reconsideration” of order on cross-motions for judgment on the pleadings]; Big Bear Municipal Water Dist. v. Superior Court (1969) 269 Cal.App.2d 919, 928, 75 Cal.Rptr. 580 [“motion for reconsideration” of order refusing to disqualify attorney]; Hall v. Superior Court (1955) 45 Cal.2d 377, 380, 289 P.2d 431 [“motion to reconsider” order denying husband's motion to fix permanent alimony]; Truslow v. Woodruff (1967) 252 Cal.App.2d 158, 160, 60 Cal.Rptr. 304 [in trial proceedings producing “the most verbose and futile” record appellate court had “yet had the misfortune to dissect,” “[f]ew rulings were made in respect of which there were not requests for reconsideration”].)

[¶¶.]

“Consistent with this understanding, merely asking the court to grant relief that is inconsistent with a prior order, whether by the same or a different judge, is not a “motion for reconsideration.” It may be barred by other, court-made rules of law (see fn. 11, ante ), but it is not barred by section 1008.”

(Standard Microsystems, supra, (2009) 179 Cal.App.4th at pp. 889–890.)

Based on this understanding, the Court of Appeal found, “to the extent defendants’ second motion relied upon the mandatory provisions of section 473(b), it did not ask the court to reconsider its previous order. For all defendants cared, and all this record shows, that order was entirely correct when made; indeed, on the showing then before the court, it is difficult to see how a different order could have been made. The second motion rested on an entirely different legal theory, invoked a different statutory ground, and relied in very substantial part on markedly different facts. It neither asked for, nor sought by sly evasion, a determination contrary to any determination made on the first order.” (Standard Microsystems, supra, (2009) 179 Cal.App.4th at p. 891.)

Here, Plaintiff relies upon the discretionary provision of Code of Civil Procedure section 473(b), and asserts that he is not requesting the court modify or otherwise reconsider its order on the attorney’s fees motion. However, the latter assertion is undermined by the fact that Plaintiff seeks leave to re-file the Second Fees Motion with the addition of billing statements reflecting the time expended upon which the motion was based, by way of the instant motion. Contrary to the circumstances in Standard Microsystems where the defendants did not ask the court to reconsider its previous order, and the Court of Appeal found that the record showed that the prior order was entirely correct when made and that “it is difficult to see how a different order could have been made,” Plaintiff, here, asks the Court to reconsider its previous August 4, 2022 Order.

Stated another way, Plaintiff’s request for leave to re-file the Second Fees Motion with additional evidence is tantamount to a request that the Court reconsider its August 4, 2022, Order. Plaintiff’s contention in the reply that the instant motion seeks a new hearing, and not a modified or revoked order, is not persuasive, and are undercut by Plaintiff’s assertions in the motion.

Plaintiff asserts that “[t]he court did not find plaintiff’s motion for fees was without merit,” and that “[t]he sole basis for the court’s denial was Bostwick’s failure to introduce supporting evidence of reasonableness.” (Motion, 3:10-14.) Plaintiff additionally argues that “plaintiff’s counsel filed a meritorious motion for attorney’s fees and failed to attach invoices on the mistaken belief he did not have to do so. [Citation.]” (Motion, 5:1-3.) Plaintiff’s reply also argues, “[t]he Second Fee Motion was not decided on its merits . . . . If justice is to be served, Edward [Plaintiff] deserves to have the adjudication of his Second Fee Motion decided on the merits as the law dictates.” (Reply, 6:11, 16-17.)

The only conclusion that can be drawn from these assertions by Plaintiff is that by seeking leave to re-file the Second Fees Motion with the addition of billing statements, by way of the instant motion, Plaintiff not only seeks reconsideration of the August 4, 2022, Order denying Plaintiff’s Second Fees Motion, and for the Court to grant the Second Fees Motion, which is a determination contrary to the determination made on the first order, i.e., August 4, 2022 Order, but also seeks to renew his motion for fees and costs on the same grounds it was initially brought.

Based on the foregoing, it appears to the Court that Plaintiff’s request for leave to re-file the Second Fees Motion with additional evidence is ultimately a request that the Court reconsider its August 4, 2022, Order which Plaintiff believes is meritorious and should be granted. Plaintiff concedes that under these circumstances, Plaintiff does not meet the pre-conditions, stating, “If it [the instant motion] were [a motion for reconsideration in disguise], the pre-conditions for such a motion may not be met because plaintiff’s counsel had in his possession evidence he failed to present when filing the motion.” (Motion, 5:16-18.)

Even if Plaintiff did not make a request to re-file the Second Fees Motion with additional evidence, and this were not a motion for reconsideration. Plaintiff does not demonstrate that he is entitled to discretionary relief under Code of Civil Procedure section 473(b).

Plaintiff moves under the discretionary provision of Code of Civil Procedure section 473(b) which states, in part:  “The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” (Code Civ. Proc. § 473(b).) Plaintiff specifically argues that an honest mistake of law is a valid ground for discretionary relief as “excusable neglect.”

“The test of whether neglect was excusable is whether ‘a reasonably prudent person under the same or similar circumstances’ might have made the same error. [Citations.]’ [Citation.]” (Luri v. Greenwald (2003) 107 Cal.App.4th 1119, 1128.) The trial court’s discretion to deny a motion for relief under section 473 based on the failure to establish excusable neglect is limited to circumstances where inexcusable neglect is clear. (New Albertsons, Inc. v Superior Court (2008) 168 Cal.App.4th 1403, 1419-1420.) “[A]lthough the party moving for relief under section 473 has the burden to show that the mistake, inadvertence, surprise, or neglect was excusable [citation], any doubts as to that showing must be resolved in favor of the moving party. [Citations.]” (Id. at p. 1420.) Under the discretionary provision in section 473, subdivision (b), the absence of substantial prejudice is an important factor to consider rather than a requirement. (Ibid.)

“While a mistake in law is a ground for relief under section 473, the ‘issue of which mistake in law constitutes excusable neglect presents a question of fact. The determining factors are the reasonableness of the misconception and the justifiability of lack of determination of the correct law. [Citation.]’ [Citation.]” (Robbins v. Los Angeles Unified School Dist. (1992) 3 Cal.App.4th 313, 319.) “Mistake is not a ground for relief under section 473, subdivision (b), when ‘the court finds that the “mistake” is simply the result of professional incompetence, general ignorance of the law, or unjustifiable negligence in discovering the law . . . .’ [Citation.]” (Hearn v. Howard (2009) 177 Cal.App.4th 1193, 1206.)

Here, Plaintiff’s counsel provides that (1) he believed in good faith that he did not have to attach the billing statements to his declaration supporting the Second Fees Motion on the basis that there are cases that hold it is unnecessary for a moving party to provide the court with billing statements; that (2) Plaintiff’s counsel “knew that if the court felt billing statements were required, it would ask for them;” and that (3) the breakdown of fees for the appeal was more complicated then it was for the anti-SLAPP motion and that when the reply brief was filed, Plaintiff’s counsel was not in a condition that would allow him to perform the task. (Motion, 4:6-19; Declaration of Gary L. Bostwick, ¶¶ 11-21.) The latter two assertions do not constitute mistakes of law.

As to whether it was reasonable for Plaintiff’s counsel to believe that he did not have to attach the billing statements to his declaration supporting the Second Fees Motion, the Court’s ruling on the first motion for attorneys’ fees is not determinative. The motions involved different evidentiary submissions and deficiencies. The evidence submitted to the Court on the first motion included invoices in support of the first motion for attorneys’ fees, where the Second Fees Motion did not, but there were still deficiencies in the evidence presented. (See Exs. 2 and 5 to Declaration of Robert S. Gutierrez.) In addition, the August 4, 2022 Order on the Second Fees Motion and the order on the first motion did not provide that Plaintiff must produce billing statements, nor was the Second Fees Motion denied on the ground that Plaintiff did not include billing statements. Consequently, Plaintiff’s claimed mistake in law in failing to attach billing statements is insufficient to constitute excusable neglect to support relief under Code of Civil Procedure section 473(b).

Plaintiff’s reply adds a related but additional argument that “[t]he error from which relief is sought is not failing to provide invoices. It is the excusable neglect by counsel in believing that by adding the statement in his declaration setting forth hours and attorneys rates for those hours was sufficient foundation for an award . . . . Counsel did not ignore that this Court had required detailed statements before, but he mistakenly believed a different form of evidence in his declaration obviated the need for detailed statements.” (Reply, 4:16-22.) This precise point is raised for the first time in reply and is not directly responsive to an argument raised in opposition as it pivots from whether Plaintiff is required to or should have attached billing statements to the Second Fees Motion. Thus, it is not considered.

Based on the foregoing, the Court DENIES Plaintiff’s motion for relief from the Court’s August 4, 2022 Order Re:  His Second Motion for Attorney’s Fees.

Ellis to give notice.