Case Number: BC495558    Hearing Date: September 04, 2014    Dept: 46

Case Number: BC495558
TEJON REAL ESTATE LLC VS MANNING & KASS ELLROD RAMIREZ TREST
Filing Date: 11/09/2012
Case Type: Legal Malpractice (General Jurisdiction)
Status: Dismissed – Other 06/16/2014
Future Hearings

09/04/2014 at 08:32 am in department 46 at 111 North Hill Street, Los Angeles, CA 90012
Motion Hearing(FOR RELIEF FROM ORDER DENYINGM/FOR LEAVE TO AMEND COMPLAINT;)

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This tentative ruling is posted at 4:00 p.m. on 08-29-2014 and the matter is set for hearing on 09-04-2014 at 8:30 a.m.

If there are no parties other than Plaintiff/Petitioner, then Plaintiff/Petitioner may submit to the tentative without appearance by telephonic notification to the clerk of Dept. 46 between 8:00 a.m. and 4:30 p.m. on a date prior to the hearing or morning prior to the hearing by calling (213) 974-5665, and the court will issue the tentative ruling as the final ruling. If the other parties have appeared in the action, then the parties must first confer and all agree that the tentative ruling will be the final ruling on the matter. If the parties to the matter before the court all agree, a representative of the parties may call the clerk and submit without an appearance, and the court will issue the tentative ruling as the final ruling. If an order is required, it should be lodged directly in Dept. 46 with a copy to adverse/other parties, if any.

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TENTATIVE RULING: Motion for Relief from Order Denying Motion for Leave to File amended complaint is DENIED. The court cannot grant the relief requested because the motion was inappropriately based upon CCP §473(b). The motion should have been made within the time and grounds allowed by CCP §1008 with an appropriate showing under that statute – which was not made.

CCP § 473 states, in relevant part, as follows:

“(b) The court may, upon any terms as may be just, relieve a
party or his or her 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…”

“Section 1008 deals with the general subject of motions to reconsider previous orders and renewals of previous motions. CCP § 473(b) deals with applications for relief from a default or default judgment entered as a result of ‘mistake, surprise, inadvertence or excusable neglect.’ [Standard Microsystems Corp. v. Winbond Elec. Corp. (2009) 179 C.A.4th 868, 893-894].” Weil & Brown, et al., CAL. PRAC. GUIDE: CIV. PRO. BEFORE TRIAL (The Rutter Group 2013) ¶ 9:324.2f, p. 9(I)-126.

“CCP § 473(b) cannot be utilized to modify or revoke a prior order based on erroneous or incomplete arguments by counsel. Such relief must be sought under § 1008. [Wiz Tech., Inc. v. Coopers & Lybrand LLP (2003) 106 C.A.4th 1, 17; Garcia v. Hejmadi (1997) 58 C.A.4th 674, 685].” Id. (emphasis theirs). “’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 C.A.4th 600, 611-612). Counsel’s failure to understand the type of response required or to anticipate which arguments would be found persuasive does not warrant relief under section 473. (See Generale Bank Nederland v. Eyes of the Beholder Ltd. (1998) 61 C.A.4th 1384, 1399-1402).” Wiz Tech. Inc., supra, 106 C.A.4th at 17.

“But where the losing party does not seek to ‘modify, amend or revoke’ the prior order, a motion under §473 is appropriate. [Ron Burns Const. Co., Inc. v. Moore [(2010) 184 C.A.4th [1406,] at 1420—after motion for attorney fees on appeal was denied as untimely, a motion for relief under § 473 was not improper (the fee motion and the motion for relief under § 473 did not seek ‘the same order’)].” Weil & Brown, supra, at ¶ 9:324.2f, pp. 9(I)-26 & 9(I)-27 (emphasis theirs).

Plaintiff’s motion is based upon the “grounds that [its] motion to amend, heard on 6-16-14, mistakenly stated that the only fact giving rise to the amendment was a printout of the change in the law, received over a year before the amended pleading, which showed a lack of diligence to amend. This motion is further based on the grounds that the motion, heard 6-16-14, should have stated that the fact, giving rise to the amendment, was the Court’s rulings, on 11-19-13, and on 3-18-14, gave rise to the proposed amended pleading, which amended pleading was served April 16, 2014, as an exhibit to the motion for leave to amend, heard and denied on 6-16-14.” (Motion, 2:1-9; emphasis in original). CCP § 473 cannot be used modify or revoke a prior order based on erroneous or incomplete arguments by counsel; rather, such a motion must be based on §1008. Plaintiff has failed to comply with the requirements of CCP § 1008, so relief must be denied.

IT IS SO ORDERED:

Frederick C. Shaller, Judge