Fourth District, Division One Credits Attorney’s Excuse that She Miscalculated Motion Deadline While Engaged in Protracted Trial.
As we have seen before, absent a stipulation or court order, the deadline for filing a motion for attorney’s fees is based on the deadline for filing a notice of appeal. (Cal. Rules of Court, rule 3.1702(b)(1).) What happens if the attorney in charge—in the heat of battle in another battle—miscalculates the motion deadline? Any relief? You bet, said the Fourth District, Division One. Code of Civil Procedure section 473(b), the discretionary relief provision, may save the day under the right circumstances.
In Thomas v. Herring Broadcasting Co., Inc., Case No. D052149 (4th Dist., Div. 1 Sept. 30, 2008) (unpublished), an attorney winning about a $20,000 jury verdict for a client blew the applicable motion deadline by eight days in which to file a motion for attorney’s fees seeking recovery of $154,000 in fees. (BLOG OBSERVATION—Part of the jury verdict was a recovery of unpaid vacation pay under Labor Code section 227.3, which has a mandatory fee-shifting provision provided by statute.) Attorney moved for relief under section 473(b), which is the proper statutory predicate to seek relief for missing the fee motion deadline. (See Russell v. Trans Pacific Group, 19 Cal.App.4th 1717, 1729 (1993).) Attorney argued that she was involved in an all-consuming trial in another case such that she inadvertently counted from a hearing date set by the trial court for the fee motion rather than base the filing of the motion upon a count from the date of notice of entry of judgment. Attorney also argued that she was excused because of the press of other business. To her credit, attorney did attach some emails supporting the fact that she was mistaken in her calculations. The lower court denied relief, but the Court of Appeal reversed and granted attorney her request to have a hearing held on the fee motion.
The appellate panel rejected the argument that an attorney’s neglect is excusable when it solely based on the fact that the attorney is busy attending to one case and ignores deadlines in another matter. (Slip Opn, at p. 12 n. 10, citing Elston v. City of Turlock, 38 Cal.3d 227, 234 (1985).) However, in the case before it, attorney claimed she miscalculated the fee motion deadline, producing emails that corroborated her error. This can be—and was—deemed excusable neglect. (See also Nilsson v. City of Los Angeles, 249 Cal.App.2d 976, 980 (1967).) Section 473(b) came to an attorney’s rescue in the case of the blown deadline.
BLOG UNDERVIEW—In a footnote, the appellate court reminded us that the deadline for filing a fee motion is usually tethered to the deadline for filing an appeal, which is not extended by virtue of the fact that the notice of entry of judgment was served by mail. (Slip Opn., at p. 3 n.4, citing Code Civ. Proc., sec. 1013(a).)