Metropolitan News-Enterprise


Friday, June 12, 2020


Page 1


Court of Appeal:

CCP §473 Unavailable Where Attorney-Fee Motion Not Timely

Stratton Says Mandatory-Relief Provision Doesn’t Apply Where Judge Set Time Limit On Seeking Fees in Settled Case and, When Time Was Up, Dismissed the Case


By a MetNews Staff Writer


An attorney’s affidavit of fault will not restore an opportunity to have the court make an award of attorney fees where a judge set a three-month limit within which to seek such fees and no motion was filed, the Court of Appeal for this district held yesterday.

Justice Maria E. Stratton of Div. Eight wrote the opinion. It affirms an order by Los Angeles Superior Court Judge Michael P. Linfield denying a motion pursuant to the portion of Code of Civil Procedure §473(b) that provides:

“[T]he 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…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.”

Cause of Dismissal

Linfield found—and the Court of Appeal agreed—that dismissal of the action by Wendy Hernandez against a car dealership and others based on the “lemon law” was “not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect.”

Hernandez’s lawsuit was settled, in court, on May 18, 2018 for $77,500.00; it was agreed that the court would fix attorney fees; Linfield set a hearing on an order to show cause re dismissal for Aug. 16, 2018, instructing that any fee request be heard before that date; on that date, Linfield continued the hearing for a month; on Sept. 18, he dismissed the action.

One day earlier, Hernandez made an ex parte motion for discretionary relief under §473(b) from the failure to file a motion for fees within the time set. It was denied because the discretionary-relief provision requires that neglect be excusable and, Linfield found, any neglect by the attorneys did not meet that requisite.

Mandatory Relief

The plaintiff then sought an order setting aside the dismissal based on §473(b)’s mandatory-relief provision which requires an attorney’s sworn admission of fault, which need not have been “excusable.”

Declarations were presented showing that the Century City firm of Knight Law Group, LLP handled law and motion matters for the plaintiff; Westwood attorney Michael H. Rosenstein made the appearances, which included the May 18, 2018 hearing; he had neglected to advise Knight that it had only three months within which to obtain a fee award.

In denying the motion for mandatory-relief on Feb. 25, 2019, Linfield said:

“[S]ection 473(b) neither requires nor allows the Court to vacate the dismissal. Under 473(b), the Court should not grant the motion to vacate the default if ‘the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect.’…This case was not dismissed because of the mistake or neglect of counsel. The case was dismissed because the parties had reached a settlement and Plaintiff has been paid in full under her settlement.”

He added that even if the dismissal were vacated, a motion for fees would still be untimely.

Stratton’s Opinion

In the opinion affirming Linfield, Stratton said:

“[W]e agree with the trial court that, as a matter of law, dismissal was not caused by counsel’s error….We hold that application of section 473, subdivision (b)’s mandatory provision, as requested by Hernandez, is far beyond the limited confines of the statute as intended by the Legislature.”

She went on to say:

“Hernandez had her day in court and consequently settled her case as the prevailing party. What she lost, for lack of a better word, was the opportunity to file and litigate her motion for attorney fees and costs before the court dismissed her settled case.

“At oral argument, counsel for Hernandez argued the trial court abused its discretion when it foreclosed Hernandez from receiving attorney fees, which was part of her agreed-upon settlement. We find no abuse of discretion by the trial court in using its inherent supervisory powers to manage proceedings before it and to set deadlines to ensure the timely handling of cases assigned to it….

“Counsel missed the court-ordered deadline to move for attorney fees. Section 473 provides no relief for such error.”

The case is Hernandez v. FCA US LLC, B296516.

Arguing for reversal were Steve Mikhov and Amy Morse of Knight Law Group and Rosenstein, joined by Cynthia Tobisman of the appellate firm of Greines, Martin, Stein & Richland. Ryan K. Marden of the Bunker Hill firm of Hawkins Parnell & Young represented the defendants.


Copyright 2020, Metropolitan News Company