Case Number: BC665696 Hearing Date: August 13, 2020 Dept: O
The Court continued the hearing on Plaintiff’s motion for leave to file a motion to tax costs to further consider counsel's arguments and cited authority supporting her mistaken belief regarding the deadline to file a motion to tax costs. After further consideration, the Court adopts its tentative ruling of July 16, 2020 (incorporated herein) denying Plaintiff’s motion for leave to file a motion to tax costs with the following additional reasoning.
The authorities cited by Counsel regarding the claimed ambiguity of when a memorandum of costs must be filed after a request for dismissal is filed do not explain why Counsel’s failure to timely file a motion to tax those costs was an excusable mistake. Even if counsel believed the filling of the memorandum of costs was premature because a judgment of dismissal had not been entered, it was not excusable for counsel to simply ignore the clear deadline to file the motion to tax costs stated in CRC Rule 3.1700(b)(1). Moreover, counsel’s reliance on that mistaken belief is belied by counsel’s testimony about her conversation with opposing counsel shortly after the memorandum of costs was filed. Oddly, in that conversation counsel did not claim the memorandum of costs was filed prematurely or that costs cannot be awarded until a judgement of dismissal is entered. Instead, counsel just argued the merits of the costs with opposing counsel. Similarly, the Court rejects counsel’s argument that the absence of prejudice warrants granting her leave to file the motion to tax costs. The Court has considered that important factor, but given the clear absence of any excusable neglect the Court finds relief is not justified under CCP 473, subdivision (b). “The issue of which mistake of law constitutes excusable neglect presents a question of fact. The determining factors are the reasonableness of the misconception and the justifiability of lack of determination of the correct law.” Toho-Towa Co., Ltd. v. Morgan Creek Productions, Inc. (2013) 217 Cal.App.4th 1096, 1111; Hopkins & Carley v Gens (2011) 200 Cal.App..4th 1401, 1413. (Counsel failed to show justification for the failure to determine the correct law); New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 1420, (“Under the discretionary provision in section 473, subdivision (b), in contrast, the absence of substantial prejudice is an important factor to consider rather than a requirement.”) Generale Bank Nederland v. Eyes of the Beholder Ltd. (1998) 61 Cal.App.4th 1384, 1402 (“Because we conclude that no abuse of discretion has been shown with respect to the issue of mistake, inadvertence, or excusable neglect, we need not address other issues raised by appellants, including the issues of prejudice and estoppel to assert relief under section 473.”)
Case Number: BC665696 Hearing Date: July 16, 2020 Dept: O
Case Name: Tom, et al. v. Insomniac Holdings, LLC, et al.
Case No.: BC665696
Calendar #: 6
Complaint Filed: 6/20/17
Motion C/O: 8-10-20
Discovery C/O: 7-24-20
Trial Date: 8-24-20
SUBJECT: MOTION FOR LEAVE TO FILE MOTION TO TAX COSTS
MOVING PARTY: Plaintiffs Terry Tom and Gayline Tom
RESP. PARTY: Defendants Insomniac Holdings, LLC, Live Nation Entertainment, Inc. and Live Nation Worldwide, Inc.
Plaintiffs’ Motion for Leave to File Motion to Tax Costs is DENIED.
Pursuant to CCP §473(b), a party may seek relief from a judgment, dismissal, order or other proceeding taken against him or her through his or her mistake, inadvertence, surprise or excusable neglect. “The standard is whether a reasonably prudent person under the same or similar circumstances' might have made the same error.” Solv-All v. Supr. Ct. (2005) 131 Cal.App.4th 1003, 1007-1008.
Any motion to strike or tax prejudgment costs must be served and filed within 15 days after service of the memo of costs. See CRC Rule 3.1700(b)(1). Delay in challenging (or failure to challenge) a costs bill waives any objection to the costs claimed thereon. See Douglas v. Willis (1994) 27 Cal.App.4th 287, 290. Even so, the court has discretion to grant CCP § 473(b) relief for “inadvertence” or “excusable neglect” to consider late-filed motions. Id. at 290 (trial judge properly denied §473 relief where attorney's excuse for failing to file motion to tax costs “lacked credibility”). The court has discretion to grant relief from a party’s failure to timely file a motion to strike or tax a memo of costs. Id. at 292 (affirming trial court’s denial of 473(b) relief from untimely motion to tax based on counsel’s lack of credibility). However, mandatory relief from the deadline to tax or strike costs is unavailable. Id. Mandatory relief is limited to defaults, default judgments or the equivalent of a default. Id. at 291-292.
An attorney's mistake of law is charged to the client and is not a ground for relief when the “mistake” is “simply the result of professional incompetence, general ignorance of the law, or unjustifiable negligence in discovering the law.” Hearn v. Howard (2009) 177 Cal.App.4th 1193, 1206 (attorney defendant’s belief she was served with malpractice complaint at hearing and therefore had more time to respond did not qualify for discretionary relief; default was consequence of attorney defendant's failure to take reasonably prudent steps to avoid entry of judgment). A trial court’s denial of discretionary relief is not an abuse of discretion where the mistake of law is on a “simple and obvious point of law” that “elementary legal research which would have cleared it up.” See Anderson v. Sherman (1981) 125 Cal.App.3d 228, (defense counsel’s erroneous belief that client had to be served in a particular manner was inexcusable neglect). "There is nothing in section 473 to
suggest it was intended to be a catch-all remedy for every case of poor
judgment on the part of counsel which results in dismissal.” State Farm Fire
& Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 611–612.
Defendants Live Nation Entertainment, Inc. and Live Nation Worldwide filed a memorandum of costs in the amount of $42,023.05 on 9-18-19. The deadline to file a motion to strike or tax those costs expired on 10-8-19 per CRC Rule 3.1700(b)(1)(15 days plus 5 days for mailing). According to Plaintiffs’ counsel, she did not file a motion to strike or tax costs by the 10-8-19, because she believed a judgment of dismissal or a notice of entry of dismissal was required before any costs could be awarded. See Dec. of S. Bhatt, ¶3. Plaintiffs’ failure to timely file a motion to strike or tax was therefore the result of counsel’s mistake of law.
Plaintiffs’ counsel’s mistake of law was unreasonable, as the issue was neither complex nor unsettled. CRC Rule 3.1700(b)(1) clearly and unequivocally sets forth a deadline based on the filing date of the memorandum of costs, not entry of a judgment of dismissal or a notice of entry of dismissal or the Court’s ability to award costs. Bhatt’s declaration also provides no explanation for how she arrived at the erroneous conclusions that (1) the Court’s ability to award costs to dismissed Defendants was contingent on entry of a judgment of dismissal or Notice of Entry of Dismissal; (2) the deadline under CRC Rule 3.1700(b)(1) could not be triggered until a judgment of dismissal or notice of entry of dismissal was entered; and (3) Plaintiffs’ obligation to file a motion to strike or tax costs within the timeframe under CRC Rule 3.1700(b)(1) was affected by the Court’s ability to award costs. See Dec. of S. Bhatt, ¶3. Plaintiffs fail to establish that counsel’s mistake of law was either reasonable or that her failure to determine the correct law was justifiable, e.g. arguably supported by reasonable research attempts.