Opinion
Plaintiff’s counsel and defendants’ counsel agreed to multiple extensions of plaintiffs time to file a motion for attorney fees on appeal, while they were trying to settle the amount owed. Under California Rules of Court, rule 3.1702(c)(2), any stipulation to extend the time for filing a motion for attorney fees on appeal must be filed with the court before the original time has expired. Plaintiff’s counsel, however, failed to file a written stipulation within this time. When negotiations broke down, plaintiff’s counsel finally filed a motion for attorney fees on appeal. Defendants’ counsel did not deny granting several extensions of time; nevertheless, he argued that the motion was time-barred. The trial court agreed, and it therefore denied the motion for attorney fees.
Plaintiff appeals. We will reverse.
First, we will hold that plaintiff’s counsel’s reliance on his adversary’s agreement was excusable neglect, as a matter of law. This is true even though plaintiff’s counsel was at fault for failing to file a timely written stipulation. Admittedly, the law frowns on an attorney’s neglect to comply with a clear rule. However, it positively glowers at another attorney’s exploitation of such neglect as an excuse to break his word.
Second, we will hold that the motion under section 473 did not have to satisfy the requirements of section 1008. The trial court relied on Gilberd v. AC Transit (1995)
I
FACTUAL AND PROCEDURAL BACKGROUND
A. The Underlying Proceedings.
In 2003, plaintiff Ron Bums Construction Company, Inc. (Bums), filed this action against Moore Electric, Inc., David R. Moore, and Gail Le Moore
Under California Rules of Court, mle 3.1702(c)(1), a motion for attorney fees on appeal must be filed within 40 days after the clerk sends notice of issuance of the remittitur. (See also Cal. Rules of Court, former rule 8.276(d)(1), now Cal. Rules of Court, rule 8.278(c)(1).) Accordingly, the original deadline for filing such a motion was October 15, 2007.
Under California Rules of Court, mle 3.1702(c)(2), however, “[t]he parties may by stipulation filed before the expiration of the time allowed under (c)(1) extend the time for filing the motion up to an additional 60 days.” (Italics added.)
B. The Stipulations to Extend Time.
The following facts were shown by Bums’s eventual motion for relief from default.
After the issuance of the remittitur, Bums’s counsel prepared a motion for attorney fees. Before filing it, however, he contacted Moore’s counsel in the hope of settling the attorney fee claim. At this point, Moore was represented by Attorney Nolan E. Clark. Negotiations ensued.
On October 10, 2007, both counsel agreed in writing to extend the deadline for filing a motion for attorney fees to October 22. At the time, however, this agreement was not filed with the trial court.
On October 20, Bums’s counsel sent Moore’s counsel a fax confirming that they had orally agreed to extend the deadline again to October 29. Once again, this agreement was not filed with the trial court.
On October 26, Bums’s counsel sent Moore’s counsel another fax confirming that they had orally agreed to further extend the deadline to October 31. Yet again, this agreement was not filed with the trial court.
Meanwhile, during the last week of October 2007, a number of wildfires broke out, including the Witch Creek fire and the Poomacha fire. These fires threatened Bums’s counsel’s ranch and law office and made it essentially impossible for him to file the motion.
On October 31, 2007, in a telephone conversation, Moore’s counsel denied having extended the deadline beyond October 29.
On November 6, 2007, Burns filed an ex parte application for an order that a motion for attorney fees was still timely. It stated: “Counsel agreed to extend the deadline to October 31, 2007. As such, there should be no issue as to timeliness. If[,] however, this court finds that there was no agreement to extend the date, then plaintiff requests relief under CCP 473 . . . .” The trial court denied the ex parte application, ruling that the issue of timeliness “[m]ay be addressed in a formal, noticed motion.”
On November 13, 2007, Bums filed a motion for attorney fees. It stated that “the issue of the timeliness of this motion ... is addressed in” the earlier ex parte application, which was attached and incorporated by reference.
Moore filed an opposition to the motion for attorney fees. The parties have not seen fit to include this opposition in the appellate record. However, it evidently argued that the motion was untimely. On January 14, 2008, the trial court denied the motion as untimely.
On March 19, 2008, Bums filed a motion for relief from default under section 473. On June 4, 2008, Moore filed substitutions of attorney, replacing Clark with J. Brian Watkins. Also on June 4, 2008, Moore (through Watkins) filed its opposition to the motion under section 473. In it, Moore did not deny that Clark had granted the extensions of time.
On September 9, 2008, after hearing argument, the trial court denied the motion. It mled that the motion for attorney fees had been untimely due to “an inexcusable mistake of law” and that the motion under section 473 was “an improper attempt to circumvent CCP[]1008.”
II
APPEALABILITY
THE MOTION FOR RELIEF FROM DEFAULT
Bums contends that the trial court erred by denying the motion for relief from default under section 473.
A. Excusable v. Inexcusable Neglect.
Under section 473, subdivision (b), the trial court can reheve a party from any order resulting from “mistake, inadvertence, surprise, or excusable neglect.”
“[T]he policy of the law is to have every litigated case tried upon its merits, and it looks with disfavor upon a party, who, regardless of the merits of the case, attempts to take advantage of the mistake, surprise, inadvertence, or neglect of his adversary. [Citations.]” (Weitz v. Yankosky (1966)
“A motion seeking such relief lies within the sound discretion of the trial court, and the trial court’s decision will not be overturned absent an abuse of discretion. [Citations.] However, the trial court’s discretion is not unlimited and must be ‘ “exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice.” ’ [Citations.]” (Elston v. City of Turlock, supra,
Here, Bums’s counsel made two mistakes. First, he failed to file a written stipulation to extend the time for filing a motion for attorney fees by October 15, when the original time expired. Second, he failed to file a motion for attorney fees by October 31, when the extended time expired. It is not seriously disputed that the second mistake was excusable, due to the Southern
“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.] ‘[I]gnorance of the law coupled with negligence in ascertaining it will certainly sustain a finding denying relief. [Citations.]’ [Citation.]” (Robbins v. Los Angeles Unified School Dist. (1992)
Under controlling case law, however, Burns’s counsel was entitled to rely on his adversary’s actual and undisputed agreement; such reliance was not inexcusable neglect, even in the face of a rule requiring him to file a written stipulation with the court. Frank E. Beckett Co. v. Bobbitt (1960)
The appellate court held that this was an abuse of discretion. (Frank E. Beckett Co. v. Bobbitt, supra, 180 Cal.App.2d at pp. Supp. 927-928.) It acknowledged that “[s]ection 283, Code of Civil Procedure, provides, that stipulations between attorneys must either (a) be in writing filed with the clerk, or (b) be entered on the minutes of the court. It is commonly known, however, that notwithstanding this section, it is a matter of common practice among attorneys to honor oral stipulations relating to actions pending in our courts. Certainly, it is not the purpose of the section to encourage a disrespect for such oral stipulations. Its underlying purpose is to avoid misunderstandings which may arise where there is a dispute as to the precise meaning of such oral stipulations. [j[] This court ... is not divested, in a case of the character here involved, of its broad discretionary power to relieve a party from a default which he suffered in reliance on an oral stipulation with his adversary.” (Id. at p. Supp. 924.)
The court concluded that the defendant’s counsel was justified in relying on the oral agreement: “Having acquiesced in and accepted the oral stipulation, the plaintiff was thereafter bound to honor that stipulation to the fullest degree, and plaintiff’s attorney could not, in good conscience . . . , enter judgment by default. His act in so doing constituted a violation of his
Similarly, in Johnson v. Sweeney (1892)
The Supreme Court reversed. It explained: “It is a general rule that a stipulation of counsel cannot be enforced unless put in writing, or entered in the minutes of the court; but where an oral agreement for an extension of time to answer or demur is admitted, and has been relied on by the defendant, a judgment by default, taken against him in violation of the terms of the stipulation, will be set aside. If the party against whom a verbal stipulation is invoked denies that such a stipulation was made, the court will not hear the parties for the purpose of settling the dispute; but where the facts relied upon by the moving party are not controverted, there is no reason for the application of the rule, and it is too late to repudiate the stipulation after it has been executed.” (Johnson v. Sweeney, supra,
Moore argues that we should presume that the trial court made an implied factual finding that the claimed extensions were never granted. Under “the doctrine of implied findings ... the appellate court is required to infer that the trial court made all factual findings necessary to support the order or judgment. [Citations.]” (Laabs v. City of Victorville (2008)
The only possible factual issue was with respect to whether the third extension was granted until October 29 or October 31. Even assuming, however, that it was granted only until October 29, by that time, the wildfires were already disrupting Burns’s counsel’s law practice. Hence, the difference is immaterial. Moreover, Bums’s counsel faxed a letter to Moore’s counsel confirming that they had agreed to an extension through October 31, and it was not until October 31 that Moore’s counsel denied this. Accordingly,
Moore’s counsel granted each extension even though the previous one had not been timely filed with the court. His client benefited from the extensions, because it gained the opportunity to try to settle Bums’s claim for attorney fees. Under these circumstances, Moore is taking advantage of Burns’s counsel’s mistake in precisely the manner that is disfavored by law, to say nothing of common decency. The failure of Bums’s counsel to file a timely written stipulation is therefore excusable neglect as a matter of law.
B. The Applicability of Section 1008.
The trial court also reasoned, in part, that Bums was trying to use section 473 as an end run around section 1008: “This motion, in effect, is a motion for reconsideration of the motion for attorney fees and costs, and Burns has presented no new or different facts, circumstances or law that could not have been presented at the original hearing that would warrant such reconsideration.”
In support of this conclusion, the trial court cited Gilberd v. AC Transit, supra,
In Gilberd, the lower court granted the plaintiff’s petition for relief from the claim-filing requirements of the Government Claims Act. The defendant then filed a motion for reconsideration under section 1008. The motion also sought, in the alternative, relief under section 473, on the ground that the defendant’s counsel’s failure to request a hearing after the trial court had already issued a tentative mling in favor of the plaintiff constituted an excusable mistake. The trial court granted reconsideration, denied the plaintiff’s petition, and sustained a demurrer to the complaint, without leave to amend. (Gilberd v. AC Transit, supra,
The appellate court reversed, holding that the defendant had failed to show any “ ‘new or different facts, circumstances, or law,’ ” as section 1008 would require. (Gilberd v. AC Transit, supra, 32 Cal.App.4th at pp. 1499-1500.) The defendant argued that the trial court had properly granted relief under section 473. (Gilberd, at p. 1501.) The appellate court disagreed: “To hold, under the circumstances presented in this case, that the general relief mechanism provided in section 473 could be used to circumvent the jurisdictional requirements for reconsideration found in section 1008 would undermine the intent of the Legislature as specifically expressed in section 1008, subdivision (e): ‘No application to reconsider any order . . . may be considered by any judge or court unless made according to this section.’ Therefore, we decline to so hold.” (Ibid.)
The appellate court affirmed. (Wozniak v. Lucutz, supra,
Wozniak did not cite or discuss Gilberd. The reasoning in each case is terse—hardly more than an ipse dixit. Thus, if these two cases stood alone, it would be difficult to articulate a basis for following one or the other. Fortunately for us, they do not stand alone. While this appeal was pending, the Sixth District decided Standard Microsystems Corp. v. Winbond Electronics Corp. (2009)
In Standard Microsystems, the defendants’ attorney advised them that they did not need to answer the plaintiff’s complaint. (Standard Microsystems Corp. v. Winbond Electronics Corp., supra,
After obtaining new counsel, the defendants filed a second motion under section 473, subdivision (b), this time arguing that they were entitled to relief under the mandatory attorney fault provision. (Standard Microsystems Corp. v. Winbond Electronics Corp., supra, 179 Cal.App.4th at pp. 880-881.) Once again, the trial court denied the motion, ruling that it was “ ‘an improper motion for reconsideration. (Code Civ. Proc., § 1008.)’ ” (Id. at p. 884.)
First, the court held that the second motion was not within the scope of section 1008, which applies to two—and only two—types of motions. Section 1008, subdivision (a) applies to “[a] motion . . . that explicitly directs the court’s attention to a previous order and seeks to ‘modify, amend, or revoke [that] order.’ ” (Standard Microsystems Corp. v. Winbond Electronics Corp., supra,
In addition, section 1008, subdivision (b) applies to “a second application for ‘the same order’ the court has already declined to make.” (Standard Microsystems Corp. v. Winbond Electronics Corp., supra,
Separately and alternatively, the court also held that, to the extent that section 1008 conflicted with the attorney fault provisions of section 473, subdivision (b), “the latter must prevail.” (Standard Microsystems Corp. v. Winbond Electronics Corp., supra,
Standard Microsystems did not cite either Gilberd or Wozniak. It was critical, however, of other cases that had applied section 1008 more broadly than its literal terms required on the theory that it is “jurisdictional”; “Declaring a statute ‘jurisdictional’ with respect to subject X does not alter the definition of X. ... It is true that statutory terms may sometimes be read more or less ‘liberally’ or ‘broadly’ depending on their effects, but we see no characteristic of section 1008 that requires courts to give it an expansive application. Indeed, it appears to fall squarely within at least one class of statutes that have traditionally been strictly construed, i.e., those statutes effecting a procedural forfeiture. [Citations.]” (Standard Microsystems Corp. v. Winbond Electronics Corp., supra,
Under Standard Microsystems,
Admittedly, the earlier fee motion had incorporated by reference Burns’s even earlier ex parte application, which had explicitly sought relief under section 473. Nevertheless, the ex parte application had been denied without prejudice; this could not bar a new motion under section 473. Moreover, the fee motion had incorporated the ex parte application solely for the purpose of explaining why the fee motion was timely, the fee motion itself (unlike the ex parte application) did not so much as mention—much less seek relief under—section 473.
Finally—and again under Standard Microsystems—to the extent that section 473 conflicts with section 1008, section 473 must prevail. It is true that Standard Microsystems' s holding to this effect was limited to the mandatory attorney fault provisions of section 473, subdivision (b). It reasoned, however, that section 473 is remedial and thus is to be construed liberally, whereas section 1008 inflicts a forfeiture and thus is to be construed narrowly. It further reasoned that section 473 is specific, whereas section 1008 is general. This reasoning also applies to the discretionary provisions of section 473, subdivision (b).
We therefore conclude that the trial court erred by denying Burns’s motion for relief from default under section 473.
IV
DISPOSITION
The order appealed from is reversed. Bums is awarded costs and attorney fees on appeal. The trial court is directed to grant Bums’s motion for relief from default and to allow Bums to file a new motion for attorney fees in connection with the previous appeal, which Bums may combine with a motion for attorney fees in connection with this appeal. The deadline for filing either motion (or both) will be 40 days after the clerk sends notice of issuance of the remittitur in this appeal.
McKinster, Acting R J., and Miller, J., concurred.
A petition for a rehearing was denied June 8, 2010, and the opinion was modified to read as printed above. Respondents’ petition for review by the Supreme Court was denied July 28, 2010, S183675. George, C. J., did not participate therein.
Notes
David R. Moore and Gail Le Moore were sued in their capacity as trustees of the Moore Family Trust.
Other named defendants were later dismissed.
Earlier, Clark had denied extending the time to file a memorandffum of costs; however, he had not denied extending the time to file a motion for attorney fees.
See footnote, ante, page 1406.
At oral argument, counsel for Moore asserted that a recent case, California Correctional Peace Officers Assn. v. Virga (2010)
CCPOA did not involve any motion under section 473. Rather, the defendants moved for attorney fees under a California statute; when that was denied, they moved for attorney fees under a federal statute. The trial court denied the second motion as an improper motion for reconsideration in violation of section 1008. (CCPOA, supra, 181 Cal.App.4th at pp. 35-36.)
The appellate court upheld this ruling. (CCPOA, supra, 181 Cal.App.4th at pp. 42-48.) It distinguished Standard Microsystems because, in the case before it, the moving parties “sought identical relief in both their first and second motions . . . .” (CCPOA, at p. 45.) It further distinguished Standard Microsystems specifically because the case before it did not involve any other statute, such as section 473. (CCPOA, at p. 48.)
In a footnote, the court also stated: “It has long been the view that a party seeking reconsideration of a prior order based on ‘new or different facts’ must provide a satisfactory explanation for failing to present the evidence sooner. [Citations.] . . . Standard Microsystems criticized the ‘court-made’ diligence requirement embodied in this line of cases, contending that they ‘attributed to the statute a meaning and effect that cannot be found anywhere in its
Moore concedes that “[t]he [fee] motion’s memorandum of points and authorities is silent as to any CCP § 473 argument.”
See Reporter’s Note, ante, page 1406.