Metropolitan News-Enterprise


Wednesday, May 12, 2010


Page 1


C.A.: Reliance on Deal to Extend Time Justified Missing Deadline




Failing to obtain and file a written stipulation to extend the time in which to move for attorney fees on appeal constituted excusable neglect as a matter of law where opposing counsel agreed to the extensions, the Fourth District Court of Appeal ruled yesterday.

“Admittedly, the law frowns on an attorney’s neglect to comply with a clear rule,” Justice Betty Richli wrote for Div. Two. “However, it positively glowers at another attorney’s exploitation of such neglect as an excuse to break his word.”

The panel ordered that Ron Burns Construction Company Inc. be allowed to file a motion for attorney fees in connection with its successful defense of an appeal by  Moore Electric Inc.

Judgment was entered in favor of Burns in 2005 and affirmed on appeal in 2007.

The 40-day period in which to move for attorney fees following appeal, under California Rules of Court, rule 3.1702(c)(1), was to expire Oct. 15, 2007, in the absence of a stipulation to the contrary. Rule 3.1702(c)(2) requires that any such stipulation, which cannot extend the time for more than 60 days, be “filed before the expiration of the time allowed under (c)(1).”

Burns’ motion was filed Nov. 13. Moore Electric opposed it on timeliness grounds, and retired San Bernardino Municipal Court Judge Martin Hildreth, sitting on assignment in San Bernardino Superior Court, denied the motion as untimely.

Motion for Relief

Burns then moved for relief from default under Code of Civil Procedure Sec. 473. In support of the motion, it presented evidence that counsel had agreed in writing on Oct. 10 to extend the deadline from Oct. 15 to Oct. 22, as the parties were negotiating the possibility of resolving the motion, and that they subsequently agreed orally to extend the deadline to Oct. 29.

Counsel subsequently agreed to extend the deadline to Oct. 31, but in an Oct. 31 phone conversation denied having agreed to an extension past Oct. 29, Burns’ lawyer declared. He also explained that he could not file the motion on Oct. 31 because his office was being threatened by the Southern California wildfires.

Moore filed no opposition to the Sec. 473 motion, but the judge denied it, saying the plaintiff’s lawyer had made “an inexcusable mistake of law” by not obtaining and filing a timely written stipulation. He also found that counsel was making “an improper attempt to circumvent” Code of Civil Procedure Sec. 1008’s requirements for a motion for reconsideration.

Richli said the wildfires clearly excused the failure to file by Oct. 31, and that the judge erred in concluding that opposing counsel’s “actual and undisputed agreement” to extend time did not excuse the lack of a timely filed written stipulation confirming that agreement.

Precedent Cited

The justice cited Frank E. Beckett Co. v. Bobbitt (1960) 180 Cal.App.2d Supp. 921, which held that it was an abuse of discretion for the trial judge to deny a Sec. 473 motion to vacate a default judgment that the plaintiff’s attorney obtained after having agreed orally to extend time to answer the complaint.

The court based its ruling on the “common practice among attorneys to honor oral stipulations,” notwithstanding Sec. 283’s requirement that stipulations be filed in writing with the clerk or entered on the minutes.

 Richli went on to conclude that a counsel who complies with the procedural requirements for a Sec. 473 motion need not present new or different facts, circumstances or law as required under Sec. 1008.

She acknowledged that in ruling to the contrary, the trial court relied on Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494. But the jurist said “more recent, more persuasive, and more analogous cases” have held that Sec. 1008’s requirements need not be met when a motion is brought under Sec. 473.

There is a significant difference between the two types of motions, Richli explained, because the party requesting relief from a previous order is not necessarily asking the court to reconsider the basis on which that order was made. Besides, she wrote, Sec. 473, as a remedial statute, must be given a more liberal construction than Sepc. 1008.


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