On 11/13/2012 ANABI OIL CORPORATION filed a Contract - Other Contract lawsuit against HIGHLAND PARK OIL INC. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are BARBARA M. SCHEPER, HOLLY E. KENDIG, ROBERT L. HESS, FREDERICK C. SHALLER, EDWARD B. MORETON and ELAINE LU. The case status is Disposed - Judgment Entered.
Disposed - Judgment Entered
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
BARBARA M. SCHEPER
HOLLY E. KENDIG
ROBERT L. HESS
FREDERICK C. SHALLER
EDWARD B. MORETON
ANABI OIL CORPORATION
DOES 1 THROUGH 100
HIGHLAND PARK OIL INC.
MIZAN A. BHUIYAN
BHUIYAN MIZAN A.
KENNETH P. ROBERTS A PROF. LAW CORP.
BADKOUBEHI KEVIN M. ESQ.
KAPLAN JERRY ESQ.
KADIN DAVID SCOTT ESQ.
1/22/2018: Minute Order -
4/10/2020: Declaration - DECLARATION DECLARATION OF KENNETH P. ROBERTS IN SUPPORT OF PLAINTIFF ANABI OIL CORPORATION'S OPPOSITION TO DEFENDANT ATABAK YOUSSEFZADEH'S MOTION FOR AWARD OF ATTORNEYS' FEES IN DEFENDI
11/15/2012: ORDER TO SHOW CAUSE HEARING
1/14/2013: DEFENDANT ATABAK YOUSSEFZADEH.?S ANSWER TO COMPLAINT
1/17/2013: DEFENDANT AZAM KHAN?S ANSWER TO COMPLAINT
9/20/2013: PLAINTIFF'S REPLY IN FURTHER SUPPORT OF MOTION FOR LEAVE TO FILE PLAINTIFF'S FIRST AMENDED COMPLALNT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF
11/6/2013: NOTICE OF CONTINUANCE OF JANUARY 8, 2014 CASE MANAGEMENT CONFERENCE HEARING
11/15/2013: PROOF OF SERVICE SUMMONS -
8/28/2014: Minute Order -
8/21/2015: Minute Order -
8/26/2015: DEFENDANT ATABAK YOUSSEFZADEH'S SEPARATE STATEMENT ("OPPOSING PARTY'S RESPONSES"), IN SUPPORT OF A. YOUSSEFZADEH'S OPPOSITION TO PLAINTIFF ANABI OIL CORPORATION'S MOTION FOR SUMMARY ADJUDICATION OF IS
4/22/2016: DEFENDANT MIZAN BHUIYAN'S OPPOSITION TO PLAINTIFF ALNABI OIL CORPORATION'S AMENDED MOTION IN LIMINE #1 TO EXCLUDE EVIDENCE, TESTIMONY AND ARGUMENT REGARDING MITIGATION OF DAMAGES
7/18/2016: PLAINTIFF ANABI OIL CORPORATION'S NOTICE OF MOTION AND MOTION IN LIMINE #5 TO EXCLUDE EVIDENCE ON ISSUES NOT PRODUCED BY DEFENDANTS IN RESPONSE TO PLAINTIFF'S DISCOVERY; ETC
8/2/2016: REVISED JOINT TRIAL EXHIBIT LIST
8/9/2016: Minute Order -
10/28/2016: ORDER APPOINTING COURT APPROVED REPORTER AS OFFICIAL REPORTER PRO TEMPORE
4/10/2017: FINAL STATEMENT OF DECISION ON COURT TRIAL
5/16/2017: MEMORANDUM OF COSTS
Docketat 09:30 AM in Department 26, Elaine Lu, Presiding; Hearing on Motion for Attorney Fees (MOTION BY DEFENDANT ATABAK YOUSSEFZADEH FOR AWARD OF ATTORNEYS? FEES IN DEFENDING APPEAL) - HeldRead MoreRead Less
DocketMinute Order ( (Hearing on Motion for Attorney Fees MOTION BY DEFENDANT ATABA...)); Filed by ClerkRead MoreRead Less
DocketOrder (RE: DEFENDANT ATABAK YOUSSEFZADEH?S MOTION FOR ATTORNEY FEES AND COSTS ON APPEAL); Filed by ClerkRead MoreRead Less
DocketOrder Appointing Court Approved Reporter as Official Reporter Pro Tempore (Mark Schweitzer, CSR #10514)Read MoreRead Less
DocketReply (Reply in Support of Motion by Defendant Atabak Youssefzadeh for Award of Attorneys? Fees on Appeal); Filed by Atabak Youssefzadeh (Defendant)Read MoreRead Less
DocketDeclaration (DECLARATION OF KEVIN Y. KANOONI IN SUPPORT OF PLAINTIFF ANABI OIL CORPORATION' S RESPONSE TO SUPPLEMENTAL DECLARATION OF JOHN FITZMORRIS AND RENEE ROBLES IN SUPPORT OF DEFENDANT A TABAK YOUSSEFZADEH' S...); Filed by Anabi Oil Corporation (Plaintiff)Read MoreRead Less
DocketResponse (PLAINTIFF ANABI OIL CORPORATION'S RESPONSE TO SUPPLEMENTAL DECLARATION OF JOHN FITZMORRIS AND RENEE ROBLES IN SUPPORT OF DEFENDANT ATABAK YOUSSEFZADEH'S MOTION FOR A WARD OF ATTORNEYS' FEES IN DEFENDING APPEAL); Filed by Anabi Oil Corporation (Plaintiff)Read MoreRead Less
Docketat 4:16 PM in Department 44, Edward B. Moreton, Presiding; Non-Appearance Case ReviewRead MoreRead Less
DocketCertificate of Mailing for ((Court Order Transferring Department 44 case) of 06/10/2020); Filed by ClerkRead MoreRead Less
DocketMinute Order ( (Court Order Transferring Department 44 case)); Filed by ClerkRead MoreRead Less
DocketPROOF OF SERVICE SUMMONSRead MoreRead Less
DocketProof of Service (not Summons and Complaint); Filed by Anabi Oil Corporation (Plaintiff)Read MoreRead Less
DocketProof of Service (not Summons and Complaint); Filed by Anabi Oil Corporation (Plaintiff)Read MoreRead Less
DocketORDER TO SHOW CAUSE HEARINGRead MoreRead Less
DocketNOTICE OF CASE MANAGEMENT CONFERENCERead MoreRead Less
DocketNotice of Case Management Conference; Filed by ClerkRead MoreRead Less
DocketOSC-Failure to File Proof of Serv; Filed by ClerkRead MoreRead Less
DocketCOMPLAINT FOR DAMAGES 1. BREACH OF CONTRACT; ETCRead MoreRead Less
DocketComplaint; Filed by Anabi Oil Corporation (Plaintiff)Read MoreRead Less
DocketSUMMONSRead MoreRead Less
Case Number: BC495569 Hearing Date: July 02, 2020 Dept: 26
Superior Court of California
Anabi oil corporation,
highland park oil, inc., et al.
Case No.: BC495569
Hearing Date: July 2, 2020
[TENTATIVE] order RE:
Defendant Atabak Youssefzadeh’s motion for attorney fees and costs on appeal
On May 2, 2017, the court entered judgment in favor of Defendant Atabak Youssefzadeh (“Defendant”) following a nonconsecutive 24-day bench trial as to both causes of action for (1) breach of contract and (2) breach of guarantee. (Fitzmorris Decl. Ex. 1.) On June 29, 2017, Plaintiff Anabi Oil Corporation filed a notice of appeal. On August 15, 2019, the Court of Appeal issued its opinion affirming the judgment and awarding costs to Defendant. (Fitzmorris Decl. Ex. 5.) On November 4, 2019, the Court of Appeal issued the remittitur.
On March 30, 2020, Defendant filed the instant motion for attorney fees and costs on appeal. On April 10, 2020, Plaintiff filed an opposition. Due to the COVID-19 pandemic, the hearing for this motion was continued from April 23, 2020 to July 2, 2020 at 9:30 am. On June 1, 2020, Defendant filed a supplemental declarations. On June 23, 2020, Plaintiff filed a supplemental response to these declarations. On June 25, 2020, Defendant filed a reply.
“The right to recover costs on appeal is governed by California Rules of Court, rule 8.278 (rule 8.278).” (Musaelian v. Adams (2011) 197 Cal.App.4th 1251, 1259.)
“Rule 8.278(a) provides in part: ‘(1) Except as provided in this rule, the party prevailing in the Court of Appeal in a civil case other than a juvenile case is entitled to costs on appeal. [¶] ... [¶] (5) In the interests of justice, the Court of Appeal may also award or deny costs as it deems proper.’ The right to recover costs depends on four conditions: ‘(1) There must be a valid judgment awarding costs to the party claiming them; (2) the item must be one allowed by rule or statute; (3) the amount claimed must have been actually incurred; (4) the amount claimed must be reasonable.’” (Ibid.) Additionally, “[u]nless the court orders otherwise, an award of costs neither includes attorney's fees on appeal nor precludes a party from seeking them under rule 3.1702.” (Cal. Rules of Court, 8.278(d)(2).)
Pursuant to CCP § 1033.5(a)(10)(A), attorney fees when authorized by contract are allowable as costs and may be awarded upon a noticed motion pursuant to CCP § 1033.5(c)(5). Under Civil Code § 1717(a), “in any action on contract, where the contract specifically provides that attorney’s fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party then the party who is determined to be the prevailing party on the contract, whether he or she is the party specified in the contract or not, shall be entitled reasonable attorney’s fees in addition to their costs.”
In determining what attorney fees are reasonable, California courts apply the “lodestar” approach. (See, e.g., Holguin v. DISH Network LLC (2014) 229 Cal.App.4th 1310, 1332.) This inquiry “begins with the ‘lodestar,’ i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate.” (See PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095.) From there, the “[t]he lodestar figure may then be adjusted, based on consideration of factors specific to the case, in order to fix the fee at the fair market value for the legal services provided.” (Ibid.) Relevant factors include: “(1) the novelty and difficulty of the questions involved, (2) the skill displayed in presenting them, (3) the extent to which the nature of the litigation precluded other employment by the attorneys, [and] (4) the contingent nature of the fee award.” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132.)
Entitlement to Attorney Fees
In the instant case, Defendant prevailed on appeal, and the Court of Appeal awarded costs to Defendant. (See Remittitur 11/4/19.) Further, the contract between the parties provided for attorney fees to the prevailing party. (Fitzmorris Decl. ¶ 4, Ex. 3; see also Civ. Code, § 1717) Accordingly, the court may award reasonable attorney fees and costs on appeal.
“A notice of motion to claim attorney's fees on appeal . . . under a statute or contract requiring the court to determine entitlement to the fees, the amount of the fees, or both, must be served and filed within the time for serving and filing the memorandum of costs under rule 8.278(c)(1)[.]” (Cal. Rules of Court, 3.1702(c)(1).) Pursuant to Rule 8.278, “[w]ithin 40 days after issuance of the remittitur, a party claiming costs awarded by a reviewing court must serve and file in the superior court a verified memorandum of costs under rule 3.1700.” (Cal. Rules of Court, 8.278(c)(1).)
“The 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[.]” (Cal. Rules of Court, 3.1702(c)(2).) Additionally, for good cause the court can extend the time for filing a motion for attorney fees on appeal in absence of a stipulation and for a longer period allowed by stipulation. (Cal. Rules of Court, 3.1702(d).)
Failure to file within the prescribed period of time, including any extensions forfeits any costs including attorney’s fees on recovery. (Moulin Electric Corp. v. Roach (1981) 120 Cal.App.3d 1067, 1070.) However, relief from this forfeiture may be sought under Code of Civil Procedure section 473 subdivision (b) if the default in failure to timely file was occasioned by “mistake, inadvertence, surprise or excusable neglect.” (Ibid.)
Here the remittitur was issued on November 4, 2019. The instant motion filed on March 30, 2020 -- one hundred and forty-seven days after issuance of the remittitur -- is untimely. Plaintiff did not provide a stipulation to extend time. Nor did the court grant an extension. Accordingly, Defendant has forfeited its right to all costs and attorney fees on appeal.
Thus, Defendant seeks relief from this forfeiture under Code of Civil Procedure section 473 subdivision (b).
Code of Civil Procedure section 473
“The 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.” (CCP § 473(b) [italics added].)
“The doctrine that the granting of relief under section 473 is primarily committed to the discretion of the trial court does not mean that the notion, caprice or inordinate disregard of the opposing evidence should be allowed to control. Such decision must be rooted in a sound discretion, based upon a fair consideration of the total evidence and grounded upon principles of justice and fair dealing.” (Elms v. Elms (1946) 72 Cal.App.2d 508, 519.)
Defendant’s Claim of Excusable Neglect
In Defendant’s moving papers, Defendant claims that the delay in filing this motion was due to excusable neglect.
The standard for excusable neglect is well settled:
Excusable neglect has been defined as neglect that might have been the act or omission of a reasonably prudent person under the same or similar circumstances. Cases in which relief on the basis of excusable neglect is granted generally involve plaintiffs who have diligently acted within the claims-filing limitation period (i.e., six months) to retain counsel. Generally speaking, it is the neglectful conduct of counsel or counsel's staff, imputed to plaintiff, which is determined to be excusable and the neglectful conduct is deemed relatively minor. [Citation] In deciding whether counsel's error is excusable, the reviewing court looks to the nature of the mistake or neglect and whether counsel was otherwise diligent in investigating and pursuing the claim. When examining the mistake or neglect, the court inquires whether a reasonably prudent person might have made the same error under the same or similar circumstances.
(Munoz v. State of California (1995) 33 Cal.App.4th 1767, 1782–1783.)
In the instant case, Defense Counsel John Fitzmorris (“Fitzmorris”) states that he closed his old office back in December 10, 2018 and at the time placed a request for all for mail to be forwarded to his home address. (Fitzmorris Decl. ¶ 10.) In December 2018, Fitzmorris also updated his office address with the California Bar to his new offices. (Ibid.) Fitzmorris did not recall ever receiving notice of the remittitur. He states that he has searched his files and records and has not found any record of receiving the remittitur. (Ibid.) Moreover, Fitzmorris did not ever electronically receive the notice of the remittitur as “[t]he docket entry for the second District Court of Appeal November 4, 2019 states: ‘Electronic remittitur sent to John Patrick Fitzmorris, to e-mail address of record, email@example.com, returned as undeliverable. Physical remittitur sent, via USPS, to mailing address of record.’” (Id. ¶ 12.) On or about December 12, 2019, Fitzmorris’s Paralegal Renee Robles (“Robles”) alerted Fitzmorris to the need to reserve a date for a motion to recover attorneys’ fees on appeal, and the reservation was made. (Id. ¶ 11.) “Robles did not, however, alert [Fitzmorris] to the expiration date for filing the motion which fell on December 14, 2019, as set forth in California Rules of Court, Rule 8.278. On January 15, [Fitzmorris] discussed the filing of the Motion for Attorney fees with Ms. Robles and it was then determined the motion was untimely.” (Ibid.)
In opposition, Plaintiff urges the court to deny relief from the waiver of attorney fees on appeal because the motion is untimely, and Defense Counsel has failed to demonstrate that his neglect was reasonable. Plaintiff states that “Mr. Fitzmorris knew of the remittitur on December 12, yet did nothing and did not even look to determine the rules until January 15 and then still did nothing and sat on the matter for 74 additional days before seeking relief from default.” (Opposition p.9:15-17.) Additionally, Plaintiff’s counsel states that he informed Fitzmorris on February 4, 2020, that the deadline to file a motion for attorney fees on appeal had past. (Kanooni Decl. ¶ 6, Ex. 4.)
In a supplemental declaration filed on June 1, 2020, Fitzmorris adds that he would not have been able to timely file the motion upon notice on December 12, and “could not have filed the motion in the 2-day period because I was working from 8:30 in the morning until at least 7:30 in the evening with my new firm. I commute each day from West Los Angeles to the office in Pasadena which adds approximately two hours to the work day, for a minimum work day of at least 13 hours per day. In December 2019, I regularly came home after 9:00 p.m. in the evening. In addition, the file at the time was in storage and included at least 15 banker’s boxes. There was no way I could access the files, retrieve needed billing statements, and prepare a brief and declaration in this short period of time.” (Fitzmorris Supplemental Decl. ¶ 6.) Defendant also provides the declaration of Robles who states that:
Mr. Fitzmorris asked me to monitor and oversee the Second Appellate District Court Website to confirm when the time was to file our motion for attorney fees related to the appeal. I spoke to Mr. Fitzmorris on December 12, 2019, concerning the remittitur and filing our motion for attorney fees on appeal. Mr. Fitzmorris advised me that he had not received the notice of remittitur and he requested that I reserve and calendar dates for a Motion for Attorney fees related to the appeal in this case. I reserved the hearing date for February 6, 2020. However, I mis-calendared the date for filing the Motion as sixteen court days before the hearing, the due date being on January 14, 2020. However, I did not calendar the due date considering California Rules of Court, Rule 8.278. On or about January 15, I discussed the filing of the Motion for Attorney fees with Mr. Fitzmorris and it was then determined the motion was untimely.
(Robles Decl. ¶ 2.)
In a supplemental opposition, Plaintiff argues that Fitzmorris’s supplemental declaration is factually inconsistent because “[h]is office was not closed, pursuant to his original declaration, until December 10. This means that the document was received at his office before he closed it and would have been in the documents that he boxed with his move unless it took over 35 days to receive the letter.” (Supplemental Opp. p.2:6-9.) Plaintiff also points out that Fitzmorris failed to comply with the California Rules of Court requiring notice to the Court of Appeal of the change of address. (See Cal. Rules of Court, 2.200.) Plaintiff further argues that Fitzmorris should have sought ex parte relief for an extension of time on December 12, 2020 to seek time to file the motion. Finally, Plaintiff provides the ruling of the Court of Appeal denying Defendant’s request for reissuance of the remittitur. (Kanooni Supplemental Decl. ¶ 4, Ex. C.)
The court finds that even accepting that Defense Counsel Fitzmorris did not receive the notice of the remittitur initially due to email and mailing error, he and his paralegal realized no later than December 12, 2019 that the remittitur had issued. For an unexplained reason, Fitzmorris failed to use the correct rules to determine the due date for filing his motion for costs and fees. By January 15, 2020, Defense Counsel realized that the time for filing the motion for fees had expired, but he did not take any immediate action to seek relief from forfeiture. In addition, on February 4, 2020, Plaintiff’s counsel notified Fitzmorris that the motion for fees and costs was untimely. Yet again, Defense Counsel did not immediately take any action. Defense Counsel did not file the motion for attorney fees until March 30, 2020 – almost two months after Plaintiff’s counsel reminded him that the time for filing a timely motion had lapsed.
Defense Counsel should certainly have been aware that the appeal was pending and that the Court of Appeal could render its decision and issue the remittitur at any time. Defense Counsel has failed to explain why he did not periodically monitor the docket of the Court of Appeal to check on the status of the remittitur. Defense Counsel fails to state whether the email address where the remittitur was electronically sent on November 4, 2019 -- firstname.lastname@example.org -- was a good email address for Defense Counsel at the time, and if not, why he did not advise the Court of Appeal of his updated email address. Nor has Defense Counsel addressed why he did not give notice to the Court of Appeal, or this court for that matter, of his change in mailing address pursuant to California Rules of Court Rule 2.200. Nor does Defense Counsel explain how the issuance of the remittitur came to his or his paralegal’s attention on December 12, 2019. Having conceded that he learned of the issuance of the remittitur by December 12, 2019, Defense Counsel fails to set forth a good reason why he did not immediately research the Rules of Court to determine when his motion for fees would be due. Finally, having realized by January 15, 2020 that the time had lapsed for filing a timely motion, Defense Counsel fails to explain why it took until March 30, 2020 – another 45 days later -- to file the motion seeking relief from forfeiture.
On this record, Defense Counsel has failed to show that his neglect was excusable. Therefore, Defendant’s motion for fees is denied.
CONCLUSION AND ORDER
Based on the forgoing, Defendant’s motion for attorney fees is DENIED.
Moving Party is ordered to provide notice of this order and file proof of service of such.
DATED: July 2, 2020 ___________________________
Judge of the Superior Court
 The Court notes that there does not appear to be any discrepancy between these statements as Fitzmorris states that he closed his office in 2018 – not 2019.
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