Result Was A Causation Issue—Failure To File Fee Motion Did Not Cause The Dismissal, But Only Resulted In A Lost Fee Request Opportunity.
Co-contributor Mike was a collegiate debater, with causation being a very important argument. That was just at issue and dispositive in the case in Hernandez v. FCA US LLC, Case No. B296516 (2d Dist., Div. 8 June 11, 2020) (published).
There, parties advised a trial judge that they had settled on the first day of a scheduled trial, with plaintiff under a lemon law case agreeing to file a “with prejudice” dismissal upon the payment of the settlement and upon payment of any attorney’s fees and costs by agreement or noticed motion. The trial judge was fine with the settlement, but he wanted to set a deadline for filing of the fees motion on an Order to Show Cause re Dismissal deadline of 90 days out, with any fees motion needing to be set for hearing by that OSC date. Well, you can guess what happened. Plaintiff’s counsel did not file the fees motion by the OSC deadline, but the trial judge continued things for about a month. Plaintiff’s counsel did not do anything for a month, except to file an ex parte request to file the motion later—a request made at the last moment on the continued OSC date. The trial judge was unsympathetic, denying the fee continuance request and finding no basis for a mandatory CCP §473(b) motion relief. The action was dismissed.
Well, flummoxed, plaintiff appealed for not being given the chance to present an attorney’s fees motion, arguing section 473 came to the rescue.
Didn’t work on appeal.
Much of this appeal, in our view, hinges on the fact that § 473 mandatory relief only was sought. Although many elements for mandatory relief were satisfied, plaintiff failed to satisfy the causation element—the dismissal was not caused by the attorney’s mistake, inadvertence, surprise, or neglect. The problem here was that the actual dismissal resulted because the parties reached a settlement and plaintiff had been paid in full, not anything hinged to the fee denial. The lost opportunity to bring the fee motion was not causally linked to the dismissal, such that the mandatory relief provision did not act to save plaintiff’s attorney’s error. Much of this was based on the trial judge’s case management order, so litigants and attorneys need to make sure they abide by these deadlines. If not, even safety valves for missing deadlines may not be available.
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