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Ron Burns Construction Company, Inc. v. Moore

May 11, 2010

RON BURNS CONSTRUCTION COMPANY, INC., PLAINTIFF AND APPELLANT,
v.
DAVID R. MOORE, AS TRUSTEE, ETC., ET AL., DEFENDANTS AND RESPONDENTS.



APPEAL from the Superior Court of San Bernardino County. Martin A. Hildreth, Judge. (Retired judge of the San Bernardino Mun. Ct. assigned by the Chief Justice pursuant to art. VI, §á6 of the Cal. Const.) Reversed with directions. (Super. Ct. No. RCV076323).

The opinion of the court was delivered by: Richli J.

CERTIFIED FOR PARTIAL PUBLICATION*fn1

OPINION

Plaintiff's counsel and defendants' counsel agreed to multiple extensions of plaintiff's 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's counsel then filed a motion for relief from default under Code of Civil Procedure section 473 (section 473). The trial court denied this motion, too, for two reasons: (1) The failure to file a written stipulation in a timely manner was inexcusable neglect; and (2) the motion for relief from default under section 473 was "an improper attempt to circumvent" the requirements applicable to a motion for reconsideration under Code of Civil Procedure section 1008 (section 1008).

The 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) 32 Cal.App.4th 1494. However, more recent, more persuasive, and more analogous cases have held that "[i]f the requirements for relief under section 473 are met, the viability of relief under section 473 cannot be defeated because the requirements for relief under section 1008 may not also have been met. [Citation.]" (Wozniak v. Lucutz (2002) 102 Cal.App.4th 1031, 1043, disapproved on other grounds in Le Francois v. Goel (2005) 35 Cal.4th 1094, 1107, fn.á5.)

I. FACTUAL AND PROCEDURAL BACKGROUND

A. The Underlying Proceedings

In 2003, plaintiff Ron Burns Construction Company (Burns) filed this action against Moore Electric, Inc., David R. Moore, and Gail Le Moore*fn2 (collectively Moore).*fn3

In 2005, the trial court entered judgment in favor of Burns and against Moore. Moore appealed. In May 2007, we issued our opinion affirming the judgment. We also awarded Burns costs on appeal. On September 5, 2007, we issued our remittitur.

Under California Rules of Court, rule 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 former Cal. Rules of Court, 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, rule 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 Burns's eventual motion for relief from default.

After the issuance of the remittitur, Burns'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. 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, Burns'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, Burns'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 Burns's counsel's ranch and law office and made ...


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