Metropolitan News-Enterprise


Friday, December 18, 2015


Page 1


Fee Award Tossed, Based on Untimeliness of Motion

Court of Appeal Says Earlier Denial of Fees Was Correct, Though Reason Was Invalid


By a MetNews Staff Writer


A Los Angeles Superior Court judge correctly denied an award of attorney fees but for the wrong reason, and later granted the fees when they should have been denied for a different reason, the Court of Appeal for this district has ruled.

Seeking the attorney fees was consumer Daniel Campbell who sued Hyundai Motor America under the Song-Beverly Consumer Warranty Act, commonly dubbed the “lemon law.” Under a settlement, he got a new 2012 Hyundai Elantra to replace his defective 2011 Elantra.

The agreement said Campbell could move for attorney fees, which are authorized by the act, but that Hyundai could oppose an award of them.

On April 10, 2013, Campbell filed a request for dismissal with prejudice; five days later, he filed a memorandum of costs which the Clerk’s Office rejected on the ground that he was “not a prevailing party” because the case was dismissed; on Oct. 23, 2013, he moved for fees in the amount of $37,687.50.

The fees were denied by Los Angeles Superior Court Judge Maureen Duffy-Lewis on Feb. 13, 2014. She reasoned that the court lacked jurisdiction because the case had been dismissed.

§473(b) Invoked

Campbell on June 13, 2014 filed a motion, seeking mandatory relief pursuant to Code of Civil Procedure §473(b), to set aside the dismissal based on an attorney’s admitted “mistake.” The motion was accompanied by the affidavit of fault by David N. Barry—whose practice is restricted to lemon law cases—declaring that he dismissed the case without Campbell’s consent.

On June 30, 2014, Duffy-Lewis granted the motion, observing that the dismissal was “obviously a mistake.”

Next, on Aug. 28, 2014, Campbell made a new motion for attorney fees. His request for fees, coupled with costs, amounted to $45,474.75.

Duffy-Lewis, on Sept. 22, 2014, awarded him $36,606.

Motion Untimely

Presiding Justice Dennis Perluss of Div. Seven said Wednesday, in an unpublished opinion, that the award must be reversed. Any relief from the April 10, 2013 dismissal, he explained, had to be made, under §473, within sixth months.

Campbell sought relief, he noted, “more than 16 months after the dismissal of the action.”

Although the untimeliness of the §473(b) motion disposed of the issue before the appeals court, Perluss made note that Duffy-Lewis “erred in ruling” that the court “had no jurisdiction to hear the initial fee motion.” He pointed out that following a voluntary dismissal, the trial court retains jurisdiction over “the right to statutory costs and attorneys fees.”

Nonetheless, denial of the motion was appropriate, the jurist declared, because the motion was untimely, having been filed more than 180 days after judgment, with the dismissal viewed as a judgment.

Fees Offered

Attachments to Campbell’s motion for relief under §473(b) reflect that Hyundai offered to pay attorney fees even after the request to enter dismissal was filed, but before the motion to vacate the dismissal was filed.

Maija Olivia of the Long Beach law firm of Beany & Myers, LLP on May 7, 2014, said in an email to Barry:

“Fees of $22,000 cannot be justified for the work performed on this case. My client is willing to offer $12,025, the amount it suggested for the court’s ruling on the fee motion but this is HMA’s final and best offer to resolve the fees and costs.”

Barry responded:

“I have tried to resolve the fee dispute with you in good faith. However, I do not believe that my efforts have been reciprocated.

“As such, please advise by 2 PM tomorrow, Friday, if your client will stipulate to setting aside the dismissal in order to avoid plaintiff having to file a motion.

“Please be advised that should you be unwilling to stipulate and my motion for relief be unsuccessful then I will initiate a breach of contract and fraud action against both your client and your law firm.”

The case is Campbell v. Hyundai Motor America, B260298.

Campbell was represented by Barry, as well as by Hallen D. Rosner and Kendra J. Woods of the San Diego law firm of Rosner, Barry & Babbitt, also known as the “Auto Fraud Legal Center.” Sean D. Beatty, John W. Myers IV, and Kenneth R. Shy of the Long Beach firm of Beatty & Myers teamed with the Los Angeles defense firm of Brian Takahashi Bowman and Brooke in obtaining a victory for Hyundai.


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