Judge Theresa M. Traber, Case 21STCV19186 2022-08-05 Tentative Ruling

· 06/25/21: Dismissal entered as to [complaint, referred to as cross complaint in the request for dismissal].[1]

This was an unlawful detainer action. Plaintiff voluntarily dismissed it without prejudice on June 25, 2021.

Plaintiff moves for reconsideration of the Court’s May 2, 2022 order denying Plaintiff’s motion to set aside an order for Plaintiff to Pay Attorney’s Fees in the amount of $36,966.51.

If Defendant decides to pursue sanctions under Code of Civil Procedure sections 128.7 and/or 1008, it is ordered to file its motion for sanctions within 30 days of this order.

(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.

(d) A violation of this section may be punished as a contempt and with sanctions as allowed by Section 128.7. In addition, an order made contrary to this section may be revoked by the judge or commissioner who made it, or vacated by a judge of the court in which the action or proceeding is pending.

(e) This section specifies the court’s jurisdiction with regard to applications for reconsideration of its orders and renewals of previous motions, and applies to all applications to reconsider any order of a judge or court, or for the renewal of a previous motion, whether the order deciding the previous matter or motion is interim or final. No application to reconsider any order or for the renewal of a previous motion may be considered by any judge or court unless made according to this section.

In connection with a motion for reconsideration, there must be “a satisfactory explanation for failing to provide the evidence earlier, which can only be described as a strict requirement of diligence.” (Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 690; see also Pazderka v. Caballeros Dimas Alang, Inc. (1998) 62 Cal.App.4th 658 [“With regard to new facts, ‘the party seeking reconsideration must provide not only new evidence but also a satisfactory explanation for the failure to produce that evidence at an earlier time.’”].)

Plaintiff provides an affidavit by its counsel, Xiuyuan Hu, in support of this motion, as required by statute. (Declaration of Xiuyuan Hu ISO Mot.) On March 16, 2022, Plaintiff filed a motion to set aside an order to pay attorney’s fees totaling $36,966.51 with this Court. The Court denied Plaintiff’s motion on May 2, 2022, holding that relief from the order to pay attorney’s fees was not warranted because the conduct of Plaintiff’s previous counsel constituted inexcusable neglect by falling below the standard of care for an attorney. (Hu Decl. ¶ 4.) Plaintiff’s counsel states that he relied on the discretionary provision of Code of Civil Procedure section 473(b), which requires a showing of excusable neglect, on the basis that Plaintiff’s former counsel, Mr. Phillip Law, did not know that he remained Plaintiff’s counsel of record. (Id. ¶ 5.) Plaintiff’s counsel states that he received correspondence between Mr. Law and Defendant’s counsel on March 16, 2022, after the motion was filed, that showed that Mr. Law was aware that he remained counsel of record. (Id. ¶ 9.) Plaintiff’s counsel contends that had he known of this correspondence, he would have sought relief under a theory of attorney neglect under the mandatory provision of section 473(b), which authorizes relief even if the neglect is inexcusable. (Id. ¶ 14.)

First, Plaintiff’s motion was denied not merely because of Mr. Law’s inexcusable neglect, but also because of Mr. Earle’s inexcusable neglect and Plaintiff’s own lack of diligence in this case.

Second, the correspondence that Plaintiff identifies is known to the Court. It was produced by Defendant in opposition to the original motion. (Declaration of R. Jeffrey Neer ISO Opposition to Motion to Set Aside ¶¶ 4-8, Exhs. A-G.) Plaintiff has not shown that this is new evidence, or why, given the information already available to Plaintiff regarding the complete lack of diligence and care by Mr. Law and Mr. Earle, Plaintiff did not recognize that the conduct of Plaintiff’s prior attorney amounted to inexcusable neglect.

Third, the mandatory provision of Code of Civil Procedure section 473(b) states:

“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(b) [Emphasis added].) Here, Plaintiff was not seeking an application for relief from entry of a default, default judgment, or dismissal, only from an order to pay attorney’s fees. Thus, the mandatory relief provision of section 473(b) would not be applicable even if it were offered with proper support. (Shayan v. Spine Care & Orthopedic Physicians (2020) 44 Cal. App. 5th 167, 170 [holding that mandatory relief under § 473(b) only applies to defaults, default judgments and dismissals].)

Code of Civil Procedure section 1008 authorizes the Court to impose sanctions under section 128.7 for failure to comply with the requirements of the statute, including for moving for reconsideration without showing what new or different facts, circumstances, or law justify such relief. In light of Plaintiff’s failure to do so, the Court finds that sanctions may be warranted.

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.

[1] Although the request for dismissal has the box checked for “cross-complaint” and specifies “Cross Complaint from I-Chung International, Inc.” multiple times and also identifies I-Chung as the Defendant and Cross Complainant, no cross-complaint was filed in this action. I-Chung filed the complaint, not a cross complaint, and is the Plaintiff in this action.