Fourth District, Division 2 Finds Renege by Adversary Trumps Neglect to Comply With a Clear Rule.
Under California Rules of Court, rule 1702(c)(2), any stipulation to extend the time for filing a motion for attorney’s fees on appeal must be filed with the court before the original time has expired. The next case involves a situation where a fee claimant did get several extensions of fee motion filing time from an adversary, who then argued that a fee motion was untimely submitted because claimant’s counsel failed to file a timely written stipulation.
The Fourth District, Division 2 did not like what the adversary did, especially when it argued the time preclusion and opposed claimant’s Code of Civil Procedure section 473 motion for relief, which was denied by the trial court (with claimant losing the chance to recoup fees).
In Ron Burns Construction Co., Inc. v. Moore, Case No, E047077 (4th Dist., Div. 2 May 11, 2010) (certified for partial publication), the appellate court found that, although the law frowns on attorney’s neglect to comply with a clear rule, “it positively glowers at another attorney’s exploitation of such neglect as an excuse to break his word.”
The principal basis for reversal was that claimant’s reliance on the undisputed extension agreement by his adversary constituted excusable neglect under the circumstances. It also found that the 473 motion did not have to satisfy the reconsideration requirements of Code of Civil Procedure section 1008, disagreeing with Gilberd v. AC Transit, 32 Cal.App.4th 1494 (1995) and following instead Standard Microsystems Corp. v. Winbond Electronics Corp., 179 Cal.App.4th 868 (2009).