Byron v. McCray CA2/7

Filed 2/14/22 Byron v. McCray CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
KRISTINE BYRON, B306599
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. 18CHRO01083)
v.
RENE MCCRAY,
Defendant and
Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Jonathan L. Rosenbloom, Judge. Affirmed.
Law Offices of Majd & Associates, Farbood Majd and
Daniel De Soto for Defendant and Appellant.
The Reape-Rickett Law Firm and Melanie Gardner-Pawlak
for Plaintiff and Respondent.
_____________________________________
After Kristine Byron obtained a civil harassment
restraining order against Rene McCray, Byron sought attorney
fees exceeding $85,000 as the prevailing party. The trial court
denied the motion without prejudice as untimely. Byron then
moved to set aside that order and to extend the time to file a
(renewed) fees motion. The court granted Byron’s motion in its
entirety. McCray appealed. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Restraining Order, Byron’s Request for Attorney Fees
and McCray’s Opposition
On March 26, 2019 the trial court granted Byron’s petition
for a civil harassment restraining order against McCray. 1 A
completed Judicial Council of California form CH-130 was used
for the restraining order signed by the court and file-stamped
that same day.
On September 25, 2019 Byron filed a request for order
seeking a total of $88,159 in attorney fees and costs2 and
attaching a motion dated September 24, 2019 that explained she
sought attorney fees as the prevailing party pursuant to Code of
Civil Procedure section 527.6, subdivision (s).3 McCray filed an
1 This court affirmed the March 26, 2019 order granting
Byron’s petition in a nonpublished opinion. (Byron v. McCray
(Sept. 18, 2020, B297234).)
2 Byron’s September 25, 2019 request for attorney fees and
costs and attached motion did not include any fees and costs
related to McCray’s unsuccessful appeal of the civil harassment
restraining order, which were the subject of a separately filed
request.
3 Statutory references are to this code.
2
opposition that challenged Byron’s attorney fees motion on
various grounds other than untimeliness.
2. The Hearing on Byron’s Request for Attorney Fees and
the Court’s November 22, 2019 Order Denying Byron’s
Attorney Fees Motion
On November 22, 2019 the trial court heard Byron’s
attorney fees request. McCray’s attorney argued the motion was
untimely under California Rules of Court, rules 3.1702 and 8.1044
because it was filed September 25, two days after September 23,
the 180-day deadline.5 Byron’s attorney objected on the ground
McCray had failed to raise the timeliness issue in his opposition
and thus had forfeited it. She also told the court she did not
believe the motion was untimely but said she would need a few
minutes to perform the necessary calculations, as well as time to
review the rules mentioned by McCray’s attorney in his oral
argument. She added she would perform those activities over the
lunch hour if instructed by the court.
The court stated its tentative ruling was to award the
attorney fees requested and told Byron’s counsel, “So aside from
the threshold issue of the timing on this, which, as I think about
Section 527.6, which authorizes a person suffering
harassment to seek a temporary restraining order and an order
after hearing prohibiting harassment, provides, at
subdivision (s), “The prevailing party in an action brought
pursuant to this section may be awarded court costs and
attorney’s fees, if any.”
4 References to rules are to the California Rules of Court.
5 McCray’s attorney explained 180 days from March 26, 2019
was September 22, 2019, a Sunday, so Byron had until
September 23 to file her motion.
3
it, you, your remedy would be under 473.” Explaining it believed
Byron’s requested fees were reasonably incurred and there were
no improper charges, the court said, “So the court will grant
Ms. Byron’s request for $85,140 in attorney[] fees plus costs of
$319, and for Ms. Byron’s time today, fees in the amount of
$1,575.” McCray’s counsel asked the court if it wished to address
the timeliness issue. The court stated, “just to avoid another
appeal,” that it did not find McCray had forfeited the argument
for failure to raise the issue in his opposition and allowed Byron’s
counsel to use the lunch recess to perform calculations and to
review the governing rules.
When the court reconvened, Byron’s counsel told the court
she believed she had made a mistake in her calculation and
McCray’s counsel was correct that her motion had been filed
two days beyond the 180th day. She said, however, she had been
working on her phone during the break because there had been
insufficient time to return to her office and she was “not a
hundred percent certain” rule 3.1702 was the governing
authority. She further stated rule 3.1702(d) authorized the court
for good cause to extend the time limit for filing a motion for fees
and requested the court extend the deadline by two days “for good
cause based on counsel’s calculation mistake” or to grant her
leave to bring a motion that same day for the extension.
McCray’s counsel responded that, during the break, he had
the opportunity to review the pertinent rules further and argued
the applicable deadline under rule 8.104(a)(1) was 60 days, not
180 days. He also asserted, regardless of the length of time by
which Byron was late, whether by two days or four months,
4
Byron first had to file and obtain a ruling on a section 473 motion
before moving for an extension.
The court stated it agreed with McCray’s counsel that it
could not rule on a section 473 motion until the motion had been
filed, but said it did not think it was prohibited from granting an
extension before a section 473 motion was on file. McCray’s
counsel argued to the contrary, asserting a motion filed after the
deadline “automatically and categorically needs to be denied.”
Byron’s counsel stated she “would have to brief [the issue]
myself” and again asked the court why McCray had not forfeited
his timeliness argument. The court explained that it wanted to
do its own research, reach the legally correct decision and avoid
another appeal.
At the conclusion of the hearing the court denied Byron’s
motion for attorney fees on the ground of untimeliness, pursuant
to rule 3.1702. It emphasized its denial was “without prejudice”
and stated, “We’ll look forward to the next step in this matter.” 6
3. Byron’s January 27, 2020 Motion To Set Aside the
November 22, 2019 Order and To Extend Time
On January 27, 2020 Byron moved to set aside, pursuant to
section 473, subdivision (b), the November 22, 2019 order denying
her motion for attorney fees, and to extend the time, pursuant to
6 The November 22, 2019 minute order stated, “[T]he Court
denies the Petitioner’s Request for Order without prejudice,
pursuant to California Rule of Court 3.1702.” We augment the
record on our own motion, pursuant to rule 8.155(a)(1)(A), to
include that minute order, which was not identified in McCray’s
designation of record on appeal.
5
rule 3.1702(d), to file a (renewed) motion for attorney fees.7 In
support of the motion, which was based on her counsel’s
excusable mistake and lack of prejudice to McCray, Byron
attached her counsel’s declaration in which her attorney
explained that she thought she had filed on the last day of the
six-month deadline and had needed time during the lunch recess
on November 22, 2019 to “double check” her calculations. During
that lunch break, she continued, she learned rules 8.104 and
3.1702 were the relevant provisions. She asserted, “One would
have to be knowledgeable in appellate law” to be aware the
60-day deadline for filing a notice of appeal applied to attorney
fees motions.
Byron’s attorney explained, although she did not do any
appellate work, she had been practicing law for about 20 years,
was well-versed in a multitude of litigation deadlines, had “been
practicing so long that many statutes and deadlines [she had]
committed to memory,” was apprised of legal developments by
regularly attending continuing education events and routinely
reading Los Angeles County Bar Association bulletins, and, based
on her 20 years of experience, had mistakenly believed the
relevant deadline was six months, or 180 days, rather than
60 days. She pointed out it was only after the parties had
returned from lunch that McCray’s counsel for the first time
argued the deadline was 60 days, and she asserted McCray’s
failure to raise earlier the applicability of the 60-day deadline
and his having argued untimeliness based on the six-month (180-
7 Byron’s attorney’s declaration in support of Byron’s
January 27, 2020 motion attached a copy of the September 24,
2019 attorney fees motion and explained the fees motion was
“ready to be filed with the Court again.”
6
day) deadline prior to the lunch break showed even McCray’s
counsel had previously been unaware the deadline was 60 days.
Byron’s attorney averred she had also realized during the
lunch break she had, “in any event,” miscalculated the six-month
(180-day) deadline by two days. She further explained she had
previously calendared what she had at the time believed to be the
correct deadline and had filed the attorney fees motion on the
calendared date. She had not filed the fees motion immediately
after issuance of the restraining order because she had been
devoting significant time coordinating the medical visits,
hospitalization and general care of her aging parents, who had
been experiencing serious health issues at the time, and thus had
to prioritize work on her cases based on urgency.
McCray filed an opposition to Byron’s motion to set aside
order and for an extension. He argued the mandatory provision
of section 473, subdivision (b), did not apply, and the court should
not exercise its discretion to grant Byron’s motion under the
statute’s discretionary provision because Byron’s attorney’s
mistake of law was inexcusable. He asserted discretionary relief
under section 473 was typically denied where a mistake of law
resulted from professional incompetence. He also argued,
although an honest mistake of law was a valid ground for relief
under rule 3.1702(d) when the legal problem was complex and
debatable, the issue of the proper filing date was neither and
Byron’s attorney had failed to take any time to ascertain the
correct law.
4. The Hearing on Byron’s January 27, 2020 Motion and
the Superior Court’s April 20, 2020 Order
At the March 10, 2020 hearing on Byron’s motion to set
aside the November 22, 2019 order and to extend time, the court
7
raised the issue “whether it [was] the six-month statute or the
60-day statute that applie[d]” and whether “there [was]
agreement that the attorneys’ fees motion should have been
brought within 60 days rather than six months.” Byron’s
attorney told the court she believed, based on her research, the
attorney fees motion should have been brought within 60 days
rather than six months. She also stated she believed McCray’s
counsel was correct that the mandatory (as opposed to
discretionary) provision of section 473 only pertained to default
judgments and did not apply to the case at bar. In discussing
discretionary relief under section 473, the court asked Byron’s
attorney if granting “this . . . basically puts your client in the
position of having her motion for attorneys’ fees back on calendar
to be considered,” and Byron’s counsel replied in the affirmative.
After hearing oral argument the court indicated its intent
to grant Byron’s motion based on section 473 and rule 3.1702(d),
and read aloud Byron’s proposed order granting the motion.
McCray’s counsel stated Byron’s proposed order was not
acceptable and provided the following explanation: “Basically the
content of this order does not reflect or does not accurately reflect
what the motion was about. This motion was basically based on
. . . [section] 473 and the statute [sic] of 3.1702, which is to allow
the counsel to file for another attorneys’ fees, to file the attorneys’
fees motion, which is another noticed motion. . . . [T]he proposed
order, it says, the motion to set aside order denying the motion
for attorneys’ fees. That ruling stands the way it was, your
Honor. So it is not, this is not a motion before the court to set
aside your denial back in November 22, 2019. The motion before
this . . . before this court today was whether the petitioner is
allowed, based on extension of the time, to file for attorneys’ fees.”
8
The court directed the parties to confer regarding modifications
to the proposed order, with Byron’s attorney to prepare and
submit a new proposed order afterward.
On April 20, 2020 the court signed an order granting
Byron’s January 27, 2020 “motion in full”; setting aside its
November 22, 2019 order denying Byron’s motion for attorney
fees based on mistake of counsel and pursuant to section 473,
subdivision (b); and granting Byron’s request to extend the time
to file a motion for attorney fees based on mistake of counsel and
pursuant to section 473, subdivision (b), and rule 3.1702(d).
On June 26, 2020 Byron filed a new request for order again
seeking $88,159 in attorney fees and costs and attaching the
memorandum of points and authorities from her September 24,
2019 attorney fees motion. As indicated by the court’s
January 28, 2021 and February 16, 2021 minute orders, the trial
court stayed any action relating to those attorney fees pending
the resolution of this appeal.8
DISCUSSION
1. Governing Law and Standard of Review
Section 473, subdivision (b), provides in part, “The court
may, upon any terms as may be just, relieve a party or his or her
8 The court’s January 28, 2021 and February 16, 2021
minute orders show the trial court had, however, granted Byron’s
separately filed, unrelated request for appellate attorney fees in
excess of $31,000 incurred in connection with McCray’s
unsuccessful appeal of the restraining order.
Pursuant to rule 8.155(a)(1)(A), we augment the record on
our own motion to include the June 26, 2020 request for order
and attachment, as well as the January 28, 2021 and
9
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.” A party seeking
discretionary relief “‘on the basis of mistake or inadvertence of
counsel must demonstrate that such mistake, inadvertence, or
general neglect was excusable because the negligence of the
attorney is imputed to his client and may not be offered by the
latter as a basis for relief.’” (Zamora v. Clayborn Contracting
Group, Inc. (2002) 28 Cal.4th 249, 258.) Neglect or mistake is
excusable only if a reasonably prudent person under similar
circumstances might have made the same error. (Bettencourt v.
Los Rios Community College Dist. (1986) 42 Cal.3d 270, 276;
accord, Zamora, at p. 258; Huh v. Wang (2007) 158 Cal.App.4th
1406, 1423; see Solv–All v. Superior Court (2005) 131 Cal.App.4th
1003, 1007.) “[T]he discretionary relief provision of section 473
only permits relief from attorney error ‘fairly imputable to the
client, i.e., mistakes anyone could have made’”; “‘[c]onduct falling
below the professional standard of care, such as failure to timely
object or to properly advance an argument, is not . . . excusable.’”
(Zamora, at p. 258.)
“An honest mistake of law is a valid ground for
[discretionary relief under section 473, subdivision (b),] when the
legal problem posed ‘“is complex and debatable.”’” (State Farm
Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 611.)
“The controlling factors in determining whether a mistake of law
is excusable are the reasonableness of the misconception and the
justifiability of the failure to determine the correct law.” (Ibid.)
February 16, 2021 minute orders, which were not identified in
McCray’s designation of record on appeal.
10
Section 473, subdivision (b), also provides for mandatory
relief “[n]otwithstanding any other requirements of [the] section”
to vacate a default judgment or dismissal “whenever an
application for relief is made no more than six months after entry
of judgment, is in proper form, and is accompanied by an
attorney’s sworn affidavit attesting to his or her mistake,
inadvertence, surprise, or neglect . . . unless the court finds that
the default or dismissal was not in fact caused by the attorney’s
mistake, inadvertence, surprise, or neglect.” (§ 473, subd. (b).) If
the statutory conditions are satisfied, the court must grant relief.
(Solv–All v. Superior Court, supra, 131 Cal.App.4th at p. 1008;
Metropolitan Service Corp. v. Casa de Palms, Ltd. (1995)
31 Cal.App.4th 1481, 1487.)
“‘A ruling on a motion for discretionary relief under
section 473 shall not be disturbed on appeal absent a clear
showing of abuse.’” (Zamora v. Clayborn Contracting Group, Inc.,
supra, 28 Cal.4th at p. 257.) “The appropriate test for abuse of
discretion is whether the trial court exceeded the bounds of
reason.” (Strathvale Holdings v. E.B.H. (2005) 126 Cal.App.4th
1241, 1249; accord, Grados v. Shiau (2021) 63 Cal.App.5th 1042,
1049.) If a ruling turns on a disputed issue of fact, the trial
court’s express and implied factual determinations are not
disturbed on appeal if supported by substantial evidence.
(Strathvale Holdings, at p. 1250; see Winograd v. American
Broadcasting Co. (1998) 68 Cal.App.4th 624, 632 [“[i]f the trial
court’s resolution of [a disputed] factual issue is supported by
substantial evidence, it must be affirmed”]; see also Zamora, at
p. 258 [“‘“where there is a substantial conflict in the facts stated,
a determination of the controverted facts by the trial court will
not be disturbed”’”].)
11
Rule 3.1702(d) provides, “For good cause, the trial judge
may extend the time for filing a motion for attorney’s fees in the
absence of a stipulation or for a longer period than allowed by
stipulation.” “‘Rule 3.1702(d) is “remedial” and is to be given a
liberal, rather than strict interpretation. [Citation.]’
[Citation.] . . . . A court may grant a request for extension of time
to file a motion for attorney’s fees even if the motion is not filed
until after the deadline for filing an attorney’s fees motion under
rule 3.1702. [Citation.] Even a claim of inadvertence, if it is not
prejudicial, may constitute good cause for a late filing.”
(Robinson v. U-Haul Co. of California (2016) 4 Cal.App.5th 304,
326 (Robinson).) “[A] trial court’s finding of ‘good cause’ is
generally reviewed deferentially, solely for abuse of discretion.”
(Id. at p. 327.)
An appellate court will not reverse an order granting relief
under the discretionary provision of section 473, subdivision (b),
unless the appellant demonstrates the ruling resulted not only in
a clear abuse of discretion but also in a miscarriage of justice,
that is, the error was prejudicial. (Grappo v. McMills (2017)
11 Cal.App.5th 996, 1006; see Cassim v. Allstate Ins. Co. (2004)
33 Cal.4th 780, 802 [for a trial court’s order to be overturned,
appellant must demonstrate an error was prejudicial; that except
for the error, a different outcome was probable].)
2. McCray Failed To Establish the Trial Court Abused Its
Discretion or Committed Reversible Error
McCray contends the mandatory relief provision of
section 473, subdivision (b), only applies to defaults and
dismissals and is thus inapplicable in the case at bar and,
because Byron’s attorney admitted she had mistakenly assumed
the deadline was six months or 180 days rather than 60 days
12
without having researched the issue, the trial court abused its
discretion in granting Byron’s January 27, 2020 motion under the
statute’s discretionary provision. (See, e.g., Zamora v. Clayborn
Contracting Group, Inc., supra, 28 Cal.4th at p. 258.)
We agree section 473, subdivision (b)’s mandatory relief
provision does not apply here. (See, e.g., English v. IKON
Business Solutions, Inc. (2001) 94 Cal.App.4th 130, 143 [“[o]n its
face, the mandatory provision requires the court, if certain
prerequisites are met, to vacate a ‘default,’ a ‘default judgment,’
or a ‘dismissal’”].) McCray, however, failed to establish the trial
court abused its discretion in granting discretionary relief under
section 473, subdivision (b): McCray failed on appeal, as well as
in the trial court, to show, independent of any statement by
Byron’s counsel, that the fees motion was due 60 days from
March 26, 2019. Although Byron’s counsel at the March 10, 2020
hearing agreed her deadline was 60 days from the date the
restraining order had been entered, a concession Byron repeats
on appeal, the parties’ position was based on legal error; and we,
of course, are not required to adhere to it. (See Desny v. Wilder
(1956) 46 Cal.2d 715, 729 [“[t]his court, of course, is not bound to
accept concessions of parties as establishing the law applicable to
a case”]; Tun v. Wells Fargo Dealer Services, Inc. (2016)
5 Cal.App.5th 309, 327 [“[q]uite simply, we are not bound to
follow the meaning of a statute (or the law) conceded by a party”];
Bell v. Tri-City Hospital Dist. (1987) 196 Cal.App.3d 438, 449
[“the Bells’ counsel’s erroneous concession cannot and should not
prevent this court from applying sound legal principles to the
objective facts disclosed by the record”]; Pease v. Brown (1960)
186 Cal.App.2d 425, 430, fn. 6 [“‘[i]f it be said that the views
herein expressed depart from the theory upon which the case was
13
tried the answer is that the rule confining the parties upon
appeal to the theory pursued below does not apply to a question
which is one of law only [citation], and that an appellate court is
never bound by concessions of counsel as to the applicable law’”].)
Byron’s motion for attorney fees was based on her status as
the prevailing party under a statutory attorney fees provision
(specifically, section 527.6, subdivision (s)). Rule 3.1702, which
generally applies in civil cases to claims for statutory attorney
fees (see rule 3.1702(a)), provides, at subsection (b)(1), a notice of
motion to claim attorney fees “must be served and filed within
the time for filing a notice of appeal under rules 8.104 and 8.108
in an unlimited civil case.” Rule 8.104(a)(1) provides, with
exceptions not relevant to this matter, that a notice of appeal
must be filed on or before the earliest of (A) 60 days after the
superior court clerk serves “a document entitled ‘Notice of Entry’
of judgment or a file-endorsed copy of the judgment, showing the
date either was served”; (B) 60 days after a party serves “a
document entitled ‘Notice of Entry’ of judgment or a file-endorsed
copy of the judgment, accompanied by proof of service”; or
(C) 180 days after entry of judgment. The requirements of
rule 8.104 are to be strictly and literally applied; actual notice is
not the standard. (See Alan v. American Honda Motor Co., Inc.
(2007) 40 Cal.4th 894, 902-903; Sunset Millennium Associates,
LLC v. Le Songe, LLC (2006) 138 Cal.App.4th 256, 260.)
At the November 22, 2019 hearing McCray’s attorney
argued 60 days applied because “both parties, on March 26, 2019,
were served in the courtroom with the final order.” He relied on
no additional information regarding the service, such as who
served the parties, whether the parties were served with a filed-
endorsed copy, or whether the file-stamped order that had been
14
served showed the date of service—that is, notwithstanding his
argument 60 days applied, McCray had not pointed in the trial
court to any information indicating the requirements of
rule 8.104(a)(1)(A) or (B) had been met and thus had not shown
that 180 days was not the correct deadline.
The file-stamped restraining order itself, which was
attached as an exhibit to Byron’s September 25, 2019 attorney
fees motion and on which Byron on appeal relies in explaining
why her counsel later, at the March 10, 2020 hearing, conceded
60 days was the correct deadline, does not establish 60 days was
the appropriate deadline. That order, under the heading “Service
of Order on Restrained Person,” merely checked the box next to
the preprinted sentences, “The [restrained person, McCray]
personally attended the hearing. No other proof of service is
needed.” Although file-endorsed, it did not indicate the superior
court clerk or a party had served it, nor did it state the date of
service. (See In re Marriage of Lin (2014) 225 Cal.App.4th 471,
473-475 [“[t]he triggering document must show the date on which
it was served”; rejecting contention “the shorter 60-day time limit
applies rather than the 180-day outside limit” even though the
appellant had been present at the hearing and the pertinent
Judicial Council form provided “that a restrained person is
considered ‘served’ when so present”]; see also Alan v. American
Honda Motor Co., Inc., supra, 40 Cal.4th at pp. 903, 905 [“To
interpret rule 8.104(a)(1) as commencing the 60-day period for
filing a notice of appeal only when the clerk has sent a single,
self-sufficient document satisfying all of the rule’s conditions does
not do violence to the rule’s language”; “we conclude that
rule 8.104(a)(1) does indeed require a single document—either a
‘Notice of Entry’ so entitled or a file-stamped copy of the
15
judgment or appealable order—that is sufficient in itself to
satisfy all of the rule’s conditions”].)
Byron’s counsel did not concede 60 days was the
appropriate deadline at the November 22, 2019 hearing, and the
trial court did not specify the bases for its ruling the motion was
untimely.9 Given the presumption of correctness we accord that
ruling, particularly in the absence of any indication in the record
that the trial court had been made aware of any document
satisfying the requirements of rule 8.104(a)(1)(A) or (B), we infer
the court properly determined Byron’s attorney fees motion was
untimely because filed two days late under the 180-day deadline
as a result of Byron’s counsel’s calculation error.
The issue for the trial court under section 473,
subdivision (b), therefore, was whether Byron’s counsel’s
miscounting of 180 days on a calendar constituted excusable
neglect. The court was not bound by Byron’s attorney’s
subsequent erroneous legal concession regarding the applicability
of the 60-day deadline. McCray on appeal does not challenge the
trial court’s implied determination that this mistake satisfied the
requirements for discretionary relief under section 473,
subdivision (b), nor could he reasonably do so: Byron’s counsel’s
two-day miscalculation constituted “attorney error ‘fairly
imputable to the client, i.e., mistakes anyone could have made.’”
9 Although the trial court at the November 22, 2019 hearing
stated, “I think what I need to do here is deny without prejudice
the motion for attorneys fees on the grounds of timeliness as
argued by Mr. McCray through counsel. And that is under
[rule] 3.1702 of the California Rules of Court,” the court did not
specify by what length of time or under what deadline (60 days or
180 days) it had determined the motion to have been untimely.
16
(Zamora v. Clayborn Contracting Group, Inc., supra, 28 Cal.4th
at p. 258; see Haviland v. Southern California Edison Co. (1916)
172 Cal. 601, 605 [“[i]t will hardly be claimed that the
inadvertent entry of a wrong date in the book or journal in which
defendant’s attorneys kept a record of the proceedings to be taken
by them could not fairly have been held by the trial court to
furnish sufficient ground for relief under the remedial provisions
of section 473”]; Lee v. Wells Fargo Bank (2001) 88 Cal.App.4th
1187, 1192-1193 [“The discretionary provisions of section 473
have been in place since the 1800’s. . . . Very early on, the courts
decided that the failure of counsel to meet a procedural deadline
was a proper subject for section 473 relief”].)
In any event, McCray failed to show he was prejudiced by
the trial court’s order, even if the court erred. As discussed, the
November 22, 2019 order denied Byron’s attorney fees motion
without prejudice. Thus, without granting the section 473
motion, the court’s order extending the time for Byron to re-file
her attorney fees motion provided all the relief she needed.10 The
“court has considerably more latitude in ruling on an extension of
10 The record indicates Byron’s January 27, 2020 motion
sought an extension for the filing of a renewed fees motion under
rule 3.1702(d) as an alternative to the court’s setting aside its
November 22, 2019 order under section 473. McCray’s counsel at
the March 10, 2020 hearing confirmed his understanding that
Byron’s January 27, 2020 motion was based on “two different
theories of the law,” the “first one is pursuant to [section] 473[,
subdivision] b,” and “the second theory is . . . rule 3.1702,
subsection (d).” He had also told the court his understanding
that Byron’s motion to extend the time to file the renewed fees
motion “is not a motion before the court to set aside your denial
back in November 22, 2019,” which “stands the way it was.”
17
time to file an attorney’s fees motion under the ‘good cause’
standard of Rule 3.1702(d) than it does in granting relief from a
‘judgment, dismissal [or] order’ under Code of Civil Procedure,
section 473, subdivision (b).” (Robinson, supra, 4 Cal.App.5th at
p. 327.)
McCray argues the trial court also abused its discretion in
granting Byron’s rule 3.1702(d) motion for an extension of the
deadline to bring the renewed fees motion. Relying in part on
Robinson, supra, 4 Cal.App.5th at page 327, in which the court
stated “[c]ounsel’s honest mistake of law’ may constitute good
cause under Rule 3.1702(d), depending in large part on the
reasonableness of the misconception,” McCray contends there
was no reasonable and honest mistake of law here because
Byron’s attorney had failed to take any step to ascertain the
correct legal deadline. McCray, however, ignores that Byron in
her motion argued there was good cause to extend the time for
filing a motion for attorney fees not only on the ground her
attorney’s honest mistake of law was reasonable but also because
of the absence of any prejudice to McCray arising from her
attorney’s inadvertent failure to timely file the motion. She
asserted her counsel’s legal mistake as to the applicable deadline
“caused no prejudice . . . other than the prejudice [McCray] would
already claim by having to pay” her attorney fees in the absence
of the mistake. She also argued “the mistake of counsel in
calculating the motion deadline” “was in no way designed to
prejudice [McCray], and in no way has prejudiced” him. In
contrast, she argued, “[d]enying [Byron] the right to recover her
attorney’s fees and costs as the prevailing party in a civil
harassment matter serves as a windfall to [McCray], who would
otherwise be liable for the significant fees and costs [Byron]
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incurred in having to protect herself from [McCray’s]
harassment.”
As shown by the statements of Byron’s attorney in her
declaration in support of the motion for an extension, substantial
evidence supported the court’s implied finding Byron’s attorney’s
failure to timely file the attorney fees motion was inadvertent. In
the absence of prejudice to the opposing party, inadvertence may
be an adequate ground for extending the time under
rule 3.1702(d). (Robinson, supra, 4 Cal.App.5th at p. 326.)
Because McCray made no attempt to argue or show any prejudice
in his opening appellate brief for Byron’s attorney’s inadvertent
failure to timely file the fees motion, he failed to establish any
abuse of discretion by the trial court. (See Pollard v. Saxe &
Yolles Dev. Co. (1974) 12 Cal.3d 374, 380-381 [“In the absence of
prejudice, the trial court has broad discretion in allowing relief on
grounds of inadvertence from a failure to timely file a cost bill”;
determining the court did not abuse its discretion in granting
defendants’ motion for permission to file a late memorandum of
costs—a motion that had been brought after the statutory
deadline—where there was “no showing of prejudice”]; Robinson,
at p. 328 [“The fact that there were procedural irregularities
provides no basis for invalidating the award where [appellant]
makes no attempt to show prejudice”; “we see . . . no reason to
grant [appellant] windfall protection from attorney’s fees
exposure”]; see also McCann v. City of San Diego (2021)
70 Cal.App.5th 51, 82, fn. 17 [“we need not address claims not
properly addressed in the opening brief”]; In re Marriage of
LaMoure (2011) 198 Cal.App.4th 807, 817 [appellant forfeited
argument mentioned in reply brief but not raised in opening
brief].)
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DISPOSITION
The April 20, 2020 order is affirmed. Byron is to recover
her costs on appeal.
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.
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