THOMAS v. HERRING BROADCASTING CO., INC.

D052149

DONNA THOMAS, Plaintiff and Appellant, v. HERRING BROADCASTING CO., INC., Defendant and Respondent.

Court of Appeals of California, Fourth Appellate District, Division One

Not to be Published


IRION, J.

Donna Thomas appeals from the trial court's order denying her motion for relief under Code of Civil Procedure1 section 473, subdivision (b) (section 473(b)) after her attorney missed the deadline to file a postjudgment motion for attorney fees as set forth in California Rules of Court,2 rule 3.1702(b)(1).

As we will explain, because the trial court based its decision denying relief on an erroneous understanding of the relevant facts, and because the facts set forth by Thomas were sufficient to warrant relief under section 473(b), the trial court abused its discretion in denying the motion. Accordingly we reverse the trial court's order and direct that Thomas be afforded the relief she requested.

I

FACTUAL AND PROCEDURAL BACKGROUND

Thomas prevailed in the trial of her action against Herring Broadcasting Company, Inc. (Herring) for breach of an employment contract. According to Thomas, the jury returned a verdict in her favor in the amount of $13,000 plus an award of $4,807 under Labor Code section 227.3 for Herring's failure to provide vacation pay. Although the proof of service of the notice of entry of judgment is not contained in the appellate record, the parties agree that notice of entry of judgment was served on July 7, 2007.

During trial Thomas was represented by Attorney John Tremblatt, but after the verdict Thomas retained new counsel, Benjamin Pavone. On September 13, 2007, Pavone, on behalf of Thomas, filed a motion for attorney fees (the fee motion), based on Labor Code section 218.5.3 The fee motion sought recovery of approximately $154,000 in attorney fees.

The parties agree that the fee motion was not timely filed under rule 3.1702(b)(1). Under that rule, "[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." (Ibid.) The applicable provision in rule 8.104 states that a notice of appeal must be filed no later than 60 days after a party serves a notice of entry of judgment. (Rule 8.104(a)(2).) Here, because the notice of entry of judgment was served on July 7, 2007, a notice of appeal would have been due no later than September 5, 2007. Accordingly, pursuant to rule 3.1702(b)(1), the last day to file the fee motion was also September 5, 2007. By filing the fee motion on September 13, 2007, Thomas missed the applicable deadline by eight days.4

After Herring's opposition to the fee motion pointed out the motion's untimeliness, Thomas promptly filed a motion for relief under the discretionary provision of section 473(b) (the section 473(b) motion).5 The discretionary provision in section 473(b) states that "[t]he 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."6 The parties agree that Thomas relied on the proper procedure to seek relief from the missed filing deadline, as the correct method for a party to seek permission to file a motion for attorney fees after missing the deadline imposed by rule 3.1702(b)(1) is by filing a motion for relief under the discretionary provision of section 473(b). (See Russell v. Trans Pacific Group (1993) 19 Cal.App.4th 1717, 1729 (Russell).)7

In her memorandum of points and authorities supporting the section 473(b) motion, Thomas argued that relief should be granted because (1) Pavone had been involved in an all-consuming trial in another case that overlapped with the deadline for filing the fee motion; and (2) that in "the flurry of ongoing trial obligations" Pavone miscalculated the last day to file the fee motion.

Pavone submitted a declaration in support of the section 473(b) motion. He explained that on August 9, 2007, the trial court set an October 5, 2007 hearing date for the fee motion. According to Pavone, "On August 15, 2007 through August 26, your undersigned was engrossed in the flurry of pre-trial preparation in another case in San Diego Superior Court. . . . From August 27 through September 12, 2007, I was engrossed in trial in that same case. This case was all-consuming: two experienced defense litigators outmanned me, along with their support staff of [three] and it required virtually every hour of every day just to keep up. The case was supposed to take but [four] trial days. In fact, it took twice as long." Pavone explained that on September 11, 2007, "as the trial wound down," he sent two e-mails to opposing counsel asking first for a 30-day extension of time to file the fee motion, and then an hour later, asking for only a five-day extension. Pavone attached both e-mails to his declaration and explained that opposing counsel never responded to either of them.

The first e-mail attached to the declaration states in relevant part: ". . . I just got out of trial. We have to file our fee motion by Thursday. My head is still spinning from trial. Would you consider stipulating under rule 3.1702(b)(2) to extend our time to file by (30) days?" The second e-mail states, "Actually, I only need (5) days. I can get it done by Thursday, painfully, but with (5) extra days, the same thing will get filed without the pain."

Because Pavone sent the e-mails on September 11, 2007, and the deadline for filing the fee motion was September 5, 2007, Pavone was not correct when he stated in the e-mails that the fee motion was due on Thursday, September 13. Further, although Pavone asked opposing counsel to stipulate to an extension under rule 3.1702(b)(2), a stipulated extension would not have been permitted by that rule because the deadline to file the fee motion had already passed. Rule 3.1702(b)(2) states that the parties may only stipulate to an extension if that stipulation is made before the expiration of the applicable deadline.

In the memorandum of points and authorities for the section 473(b) motion, Pavone attempted to explain why he had calculated September 13, 2007 as the due date for the fee motion. He stated, "[Y]our undersigned made an effort to calculate the last day to file the fee motion, but in the dizzying haste of a decision being made amidst the flurry of ongoing trial obligations, counsel apparently calculated the last day to file by counting backward from the Court's . . . hearing date for the motion, which was set as October 5, 2007 . . ., rather than by counting forward from the 60-day clock starting from the notice of entry of judgment on July 7, 2007. Given that your undersigned was looking at rule 3.1702 at the time the mistaken calculation was performed, all that can be said is that intellectual exhaustion must have played a role."

At oral argument on the section 473(b) motion, Pavone explained, "When I contacted [opposing counsel] I knew there was a deadline, but I had thought that deadline was September 13th. And when I — as reflected in the e-mails[,] contacted [opposing counsel], I said, `Hey, can I have an extension of time?' He said, `No.' I then complied with what I thought was the deadline, which was September 13th. [¶] . . . But because there was that miscalculation, there was, you know, the eight-day delay." In response to this statement, the trial court observed, "But your declaration didn't say `excusable neglect because I erred on a date.' You said, `I knew about it. And I was busy in trial and I didn't get it done,' is what you said essentially."

The trial court denied the section 473(b) motion. It explained, "Here, plaintiff's counsel offers that: (1) He was `engrossed' in another trial; and (2) he asked for an extension but was not granted one. . . . [¶] The `press of business' is not usually accepted as a ground for relief under section 473. [Citation omitted.] But if coupled with additional, extenuating circumstances, relief may be justified. [Citation omitted.] These are generally cases where counsel was unaware of the duty to appear or respond, unlike the `press of business' cases where the attorney simply forgot because he was so busy." The trial court concluded, "The `press of business' excuse is all that has been offered, since counsel states he knew there were time limits and in fact asked for an extension on September 11, 2007, two days before the motion had to be filed. As press of business is not excusable neglect, the motion must be denied. [¶] Although an exceptional press of business or burdensome workload may be considered as a factor justifying delay, cases doing so involved situations where the press of business was only one of several factors proffered. Thus, to the extent counsel may be implying that he was too busy to file a motion sooner, that excuse is not sufficient justification for the delay."

Thomas appeals from the order denying the section 473(b) motion. (See § 904.1, subd. (a)(2).)

II

DISCUSSION

A. Standard of Review

To obtain reversal of the trial court's ruling on the section 473(b) motion, Thomas must establish that the trial court clearly abused its discretion. (Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 257 (Zamora) ["`A ruling on a motion for discretionary relief under section 473 shall not be disturbed on appeal absent a clear showing of abuse' "].) "Although precise definition is difficult, it is generally accepted that the appropriate test of abuse of discretion is whether or not the trial court exceeded the bounds of reason, all of the circumstances before it being considered." (In re Marriage of Connolly (1979) 23 Cal.3d 590, 598.) " ` "The term [judicial discretion] implies the absence of arbitrary determination, capricious disposition or whimsical thinking. It imports the exercise of discriminating judgment within the bounds of reason. [¶] To exercise the power of judicial discretion all the material facts in evidence must be known and considered, together also with the legal principles essential to an informed, intelligent and just decision." [Fn. omitted.]' " (Estate of Gilkison (1998) 65 Cal.App.4th 1443, 1448 (Gilkison), italics added, quoting In re Cortez (1971) 6 Cal.3d 78, 85-86.)

B. Principles Governing Motions for Relief Under the Discretionary Provision of Section 473(b)

"The discretionary provisions of section 473 have been in place since the 1800's. . . . Very early on, the courts decided that the failure of counsel to meet a procedural deadline was a proper subject for section 473 relief." (Lee v. Wells Fargo Bank (2001) 88 Cal.App.4th 1187, 1192-1193, citations omitted.) However, " `A party who seeks relief under section 473 on the basis of mistake or inadvertence of counsel must demonstrate that such mistake, inadvertence, or general neglect was excusable . . . .' " (Zamora, supra, 28 Cal.4th at p. 258, italics added.) "In determining whether the attorney's mistake or inadvertence was excusable, `the court inquires whether "a reasonably prudent person under the same or similar circumstances" might have made the same error.[]' . . . `Conduct falling below the professional standard of care, such as failure to timely object or to properly advance an argument, is not therefore excusable. To hold otherwise would be to eliminate the express statutory requirement of excusability and effectively eviscerate the concept of attorney malpractice.' " (Ibid., citations omitted.)

Lack of prejudice to the opposing party and the diligence of the party seeking relief are also important factors in deciding whether to grant relief under the discretionary relief under section 473(b). (Zamora, supra, 28 Cal.4th at p. 258 ["Where the mistake is excusable and the party seeking relief has been diligent, courts have often granted relief pursuant to the discretionary relief provision of section 473 if no prejudice to the opposing party will ensue"].)

In this case, Herring has not attempted to argue that prejudice would result if Thomas is granted the relief she seeks. Further, there is no dispute that Thomas was diligent in seeking relief as soon as she was informed that the fee motion was untimely. Accordingly, the only issue presented is whether Pavone's mistake or inadvertence in missing the deadline for the fee motion was excusable. As we have explained, the trial court characterized Pavone's explanation for missing the filing deadline as a "press of business" excuse, and denied the section 473(b) motion, ruling that "press of business is not excusable neglect."

In reviewing the trial court's order denying relief, we are mindful that "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. [Citations.] Therefore, a trial court order denying relief is scrutinized more carefully than an order permitting trial on the merits." (Elston v. City of Turlock (1985) 38 Cal.3d 227, 233 (Elston).)

C. The Trial Court Abused Its Discretion Because It Misapprehended the Factual Basis for Thomas's Motion

Thomas argues that the trial court abused its discretion in denying the section 473(b) motion because it based its ruling on a misunderstanding of the relevant facts.

As shown by the trial court's ruling and its statements at oral argument, it based its decision on the purported fact that Pavone was aware of the applicable deadline to file the fee motion, but that he did not comply with a known deadline because he was too busy with another case. The trial court's ruling stated, "The `press of business' excuse is all that has been offered, since counsel states he knew there were time limits and in fact asked for an extension on September 11, 2007, two days before the motion had to be filed."8 Similarly, at oral argument, the trial court stated, "[Y]our declaration didn't say `excusable neglect because I erred on a date.' You said, `I knew about it. And I was busy in trial and I didn't get it done,' is what you said essentially." (Italics added.)

We agree with Thomas that the trial court's statements demonstrate a factual misunderstanding. Contrary to the trial court's understanding of the facts, Pavone's declaration did not state that he was aware of the applicable deadline. Further, Pavone's request to opposing counsel for an extension to file the fee motion does not establish that Pavone was aware of the applicable deadline of September 5, 2007. On the contrary, the September 11, 2007 e-mails attached to Pavone's declaration state that Pavone believed the applicable deadline to be September 13, not September 5.9 Pavone's claim that he had miscalculated the deadline was highlighted for the trial court in Thomas's memorandum of points and authorities in support of the section 473(b) motion and at oral argument. In the memorandum of points and authorities, Pavone wrote that he had made a "mistaken calculation" as to the deadline. At oral argument, Pavone stated that he had made a "miscalculation" of the deadline and thus "thought that [the] deadline was September 13th."

The trial court's legal analysis was impacted by its mistaken belief that Pavone was aware of the deadline but had simply ignored it because he was too busy with another case. As the trial court correctly pointed out, the fact that an attorney is too busy with one case to honor known deadlines in another case does not constitute excusable neglect. (See Elston, supra, 38 Cal.3d at p. 234 [stating that counsel's statement "that he was busy with other matters during the relevant period" would not "standing alone . . . constitute excusable neglect"].) Under the facts as the trial court understood them, this rule required it to conclude that Pavone's neglect was not excusable.

However, based on the evidence and argument presented by Thomas to the trial court, it is clear that Thomas was not merely requesting relief on the ground that Pavone was too busy in one case to meet a known deadline in another case. Instead, Thomas was requesting relief on the additional basis that Pavone had miscalculated the deadline for the fee motion.10 An attorney's mistake in calculating a deadline may be considered excusable neglect. (See Nilsson v. City of Los Angeles (1967) 249 Cal.App.2d 976, 980 ["calendar errors by an attorney or a member of his staff are, under appropriate circumstances, excusable"]; Haviland v. Southern California Edison Co. (1916) 172 Cal. 601, 605 ["It will hardly be claimed that the inadvertent entry of a wrong date in the book or journal in which defendant's attorneys kept a record of the proceedings to be taken by them could not fairly have been held by the trial court to furnish sufficient ground for relief under the remedial provisions of section 473".) Accordingly, Pavone's inadvertence in missing the filing deadline because of a miscalculation properly could be classified as excusable neglect supporting a grant of relief under section 473(b).

As we have explained, a trial court abuses its discretion when it does not know and consider all of the material facts in making its ruling. (Gilkison, supra, 65 Cal.App.4th at pp. 1448-1449.) Here, because the trial court did not base its ruling on a correct understanding of the facts, and that incorrect understanding of the facts impacted the trial court's decision, there was an abuse of discretion.

Having concluded that the trial court abused its discretion, we reverse the order denying the section 473(b) motion and direct that, upon remand, the trial court shall afford Thomas relief from the deadline set forth in rule 3.1702(b)(1). In so doing, we apply the policy expressed by our Supreme Court in favor of reversing trial court orders denying discretionary relief under section 473(b) when the appellant has established on appeal that "the excuse offered was well within the range of situations in which the courts have granted relief from default." (Elston, supra, 38 Cal.3d at p. 238.) As we have explained, the facts presented in support of Thomas's motion for relief establish the prerequisites for discretionary relief under section 473(b), making relief appropriate in this case. "Unless inexcusable neglect is clear, the policy favoring trial on the merits prevails. . . . Doubts are resolved in favor of the application for relief from default . . ., and reversal of an order denying relief results . . . ." (Elston, at p. 235, citations omitted [reversing the trial court's order denying discretionary relief under § 473(b) and ordering that the appellant be afforded the relief requested].) We apply that policy here, and accordingly we reverse the trial court's order.

DISPOSITION

The order denying Thomas's motion under Code of Civil Procedure, section 473, subdivision (b) for relief from the deadline set forth in California Rules of Court, rule 3.1702(b)(1) is reversed, and Thomas shall be granted the relief she requested.

WE CONCUR:

BENKE, Acting P. J.

NARES, J.

FootNotes


1. All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
2. All further rule references are to the California Rules of Court.
3. Labor Code section 218.5 provides that "[i]n any action brought for the nonpayment of wages, fringe benefits, or health and welfare or pension fund contributions, the court shall award reasonable attorney's fees and costs to the prevailing party if any party to the action requests attorney's fees and costs upon the initiation of the action."
4. Thomas suggests that the time for filing the fee motion was extended by five days because the notice of entry of judgment was served by mail, making the motion three days late rather than eight days late. We disagree. As we have explained, the deadline for filing a motion for attorney fees is based on the deadline for filing a notice of appeal. (Rule 3.1702(b)(1).) Section 1013, subdivision (a) provides that the deadline for filing a notice of appeal is not extended by virtue of the fact that the notice of entry of judgment was served by mail.
5. Before filing the section 473(b) motion, Thomas initially filed an ex parte application for relief, but the trial court indicated that relief should be sought through a noticed motion.
6. Section 473(b) also contains a mandatory relief provision relating to relief from a default or dismissal due to attorney mistake, inadvertence, surprise or neglect. Thomas did not seek relief under that provision, as this case does not concern a default or dismissal.
7. The deadline for filing a posttrial motion for attorney fees is not jurisdictional, but it nevertheless is mandatory. (Russell, supra, 19 Cal.App.4th at p. 1726.) Thus, the trial court does not have discretion to consider a late-filed motion unless it determines that relief is warranted under section 473(b). (Russell, at p. 1726.)
8. As we have explained, the motion was due on September 5, 2007. Thus, the trial court was clearly wrong when it stated that by asking for an extension on September 11, 2007, Pavone was asking for an extension "two days before the motion had to be filed."
9. Consistent with Pavone's statement that he believed the motion was due on September 13, when opposing counsel did not agree to an extension, Pavone filed the fee motion on the day that he had told opposing counsel he believed it was due, i.e., September 13.
10. In an alternative argument in support of her appeal, Thomas argues that even if she had sought relief solely on the ground that Pavone was prevented by the press of business from timely filing the fee motion, the trial court still would have erred in concluding that Pavone's neglect was inexcusable. We reject this alternative argument. The authorities are clear that an attorney's neglect is inexcusable when it is caused solely by the fact that the attorney is busy attending to one case and thereby ignores deadlines in another case. (Elston, supra, 38 Cal.3d at p. 234; Martin v. Taylor (1968) 267 Cal.App.2d 112, 117 [" `press of business' is not usually accepted as a ground for relief under section 473"]; 8 Witkin, Cal. Procedure (4th ed. 1997) Attack on Judgment in Trial Court, § 174, p. 679 ["Press of business or inability to obtain a substitute is often urged as an excuse for failure to appear on time; however, standing alone, these excuses are rarely considered sufficient for relief"].) We find no merit to Thomas's contention that attorney neglect caused by " `exceptional' " press of business and which results in missing a deadline only by a few days should, standing alone, be considered excusable neglect.

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