Case Number: BC505432 Hearing Date: April 21, 2014 Dept: 58

JUDGE ROLF TREU
DEPARTMENT 58
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Hearing Date: Monday, April 21, 2014
Calendar No: 10
Case Name: Rhee v. Aurora Loan Services, LLC, et al.
Case No.: BC505432
Motion: (1) Application for Leave to Re-File Motion for Attorney’s Fees and Costs
(2) Motion to Bifurcate Trial
Moving Party: (1) Defendant TFLG (formerly known as the Endres Law Firm)
(2) Defendant Aurora Loan Services LLC
Responding Party: (1) Plaintiff Jacob Rhee
(2) No opposition filed
Notice: OK

Tentative Ruling: (1) Application for leave to re-file motion for attorney’s fees and costs is granted.

(2) Motion to bifurcate is granted.
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Background and Procedural History –
On 4/10/13, Plaintiff Jacob Rhee, in propria persona, filed this action against Defendants Aurora Loan Services, LLC; Eric G. Fernandez; Paul Cargile; Jeff Dickens; and Brenia Romero for intentional infliction of emotional distress arising out of alleged eviction and inspection activities taken with respect to property at which Plaintiff is a tenant. On 4/30/13, Plaintiff filed a First Amended Complaint asserting causes of action for (1) intentional infliction of emotional distress and (2) intentional tort. The FAC added Endres Law Firm and Aegis Realty Co. as defendants. On 5/8/13, Plaintiff named Sean H. Bedrosian as Doe-1. On 5/23/13, Plaintiff named Nationstar Mortgage, LLC as Doe 1.

On 7/31/13, the Court granted a special motion to strike pursuant to CCP § 425.16 filed by Eric G. Fernandez, TFLG (formerly known as The Endres Law Firm) and Bedrosian (collectively “Attorney Defendants”). On 8/23/13, Attorney Defendants filed a motion for attorney fees and costs pursuant to CCP § 425.16(c)(1). On 9/12/13, the Court sustained demurrers to the FAC filed by Romero and Aegis Realty with leave to amend; overruled the demurrer filed by Aurora; and denied the Attorney Defendants’ motion for attorney fees and costs based on insufficient notice pursuant to CCP § 1005(b). On 10/7/13, Plaintiff filed a Second Amended Complaint asserting causes of action for (1) intentional tort and (2) malicious prosecution. On 10/18/13, Attorney Defendants filed a motion for leave to re-file the motion for attorney fees and costs set for hearing on 1/15/14. On 11/18/14, Aurora filed notice that Plaintiff’s Chapter 13 bankruptcy had been converted to a Chapter 7 bankruptcy and requested a stay. On 1/8/14, Attorney Defendants filed a notice of dismissal of Plaintiff’s bankruptcy action.

On 1/28/14, Attorney Defendants re-filed a motion for leave to re-file the motion for attorney fees and costs. On 1/30/14, Plaintiff named Hong Soo Jun, Jason Moore, and Sarah Jun as Does 2-4 respectively. On 2/3/14, Plaintiff filed a “supplemental pleading” which purported to add causes of action for promise with no intent to perform, intentional tort, and injunction against Nationstar, Moore, the Juns, and “Aegis Realty Company.”

On 2/7/14, the Court, on its own motion, struck Plaintiff’s “Supplemental Pleading” as it was filed without leave of Court. Additionally, the Court sustained demurrers by Romero and Aegis Realty without leave to amend; and overruled the demurrer by Aurora. Trial is set for 4/21/14.

Application for Leave to Re-File Motion for Attorney Fees and Costs–
Attorney Defendants request leave to re-file the motion for attorney fees and costs (attached as Exhibit A to the application) pursuant to the mandatory and discretionary provisions of CCP § 473(b). This application is based on the declaration of Noah M. Bean who submits the following: on 8/12/13, he had his paralegal schedule a motion for attorney fees and costs for 9/12/13 that he intended to file and serve by 8/15/13 (Bean Decl. ¶ 6); on 8/14/15, he contracted a serious illness lasting until 9/22/13 (id. ¶ 7); due to his knowledge of the issues, he completed the motion for attorney fees and costs on 8/23/13 (id. ¶ 8); but he discovered that he inadvertently failed to instruct his paralegal to reschedule the hearing date in light of the delay in completing it (id. ¶ 9).

1. Plaintiff’s Opposition
In opposition, Plaintiff argues that Attorney Defendants’ application is filed by, and relies on, the declaration of an attorney who has not been substituted or associated as counsel for Attorney Defendants. Opp’n p. 2:22-26. However, Plaintiff fails to submit any declaration in support of his opposition. Additionally, the Court notes that Mr. Bean filed a notice of association of counsel and a separate proof of service on 8/23/13 showing service thereof (in addition to the motion for attorney fees and costs) on Plaintiff. Plaintiff argues that Attorney Defendants’ counsel, Hinshaw & Culbertson LLP (who filed the special motion to strike (Bean Decl. ¶ 5)), was not provided notice of the association of counsel. However, there is no reason why this results in the association of counsel not be given effect. Cf. CCP § 285 (stating that notice of substitution of attorneys must be given to the adverse party).

Plaintiff also argues that he is entitled to sanctions pursuant to CCP § 128.6. However, CCP § 128.6 has been repealed. See Stats.2010 (S.B. 1330), c. 328 § 31.

Mandatory Relief
The mandatory relief provision of CCP § 473(b) provides in pertinent part:
Notwithstanding any other requirements of this section, the court shall, whenever an application for relief . . . is accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any . . . resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect.

The Courts of Appeal have held that the mandatory relief provision applies narrowly to defaults and dismissals akin to defaults. Pagarigan v. Aetna U.S. Healthcare of California, Inc. (2007) 158 Cal.App.4th 38, 45; see also Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 617-20. The denial of Attorney Defendants’ motion for attorney fees and costs based on insufficient notice is not akin to a default or dismissal. Therefore, mandatory relief is unavailable to Attorney Defendants.

2. Discretionary Relief
Discretionary relief requires showing a satisfactory excuse (i.e., mistake, inadvertence, surprise or excusable neglect) and diligence in seeking relief (i.e., within a reasonable time). Hopkins & Carley v. Gens (2011) 200 Cal.App.4th 1401, 1410. However, “[c]onduct falling below the professional standard of care, such as failure to timely object or to properly advance an argument, is not therefore excusable.” Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 682. “In deciding whether counsel’s error is excusable, the reviewing court looks to the nature of the mistake or neglect and whether counsel was otherwise diligent in investigating and pursuing the claim. When examining the mistake or neglect, the court inquires whether a reasonably prudent person might have made the same error under the same or similar circumstances.” Generale Bank Nederland v. Eyes of the Beholder Ltd. (1998) 61 Cal.App.4th 1384, 1401 (citations and quotation marks omitted).

Mr. Bean’s declaration explains his diligence in initially scheduling the motion for attorney fees and costs, the unexpected serious illness that he contracted from 8/14/15 to 9/22/13, the reason why he alone could prepare the motion for attorney fees and costs, his delayed completion of the motion for attorney fees and costs while he was ill, and his discovery of his inadvertent failure to instruct his paralegal to reschedule the hearing date. Mr. Bean’s declaration explains his subsequent attempts to re-file the motion. This is sufficient to qualify for discretionary relief. See Kesselman v. Kesselman (1963) 212 Cal.App.2d 196, 207-8 (concerning a deteriorated mental condition by reasons of a paralytic stroke).

This is unlike the cases in which an attorney’s conduct was found to be inexcusable: the failure to supervise a paralegal where the attorney relied on a paralegal who was on vacation in preparing an opposition to a motion for summary judgment without ensuring the attorney’s ability to review and sign them (Henderson v. Pac. Gas & Elec. Co. (2010) 187 Cal.App.4th 215, 231-32); an inadequate substantive opposition to a motion for summary judgment (Garcia, 58 Cal.App.4th at 683-84); or an error in meeting the statutory deadline for filing for relief (Life Savings Bank v. Wilhelm (2000) 84 Cal.App.4th 174, 177).

Instead, Mr. Bean’s declaration raises issues more similar to an isolated mistake in calendaring (Comunidad En Accion v. Los Angeles City Council (2013) 219 Cal.App.4th 1116, 1133-34) and understaffing (Elston v. City of Turlock (1985) 38 Cal.2d 227, 234 (superseded by statute on other grounds as stated in Tackett v. City of Huntington Beach (1994) 22 Cal.App.4th 60, 64-65)). These issues, in conjunction with Mr. Bean’s illness, supports a finding of excusable neglect. See Robinson v. Varela (1977) 67 Cal.App.3d 611, 616; Contreras v. Blue Cross of Cal. (1988) 199 Cal.App.3d 945, 951.

Therefore, the application for leave to re-file the motion for attorney fees and costs is granted. At the hearing on this motion, the Court will set a hearing date for the proposed motion for attorney fees and costs (Mot’n Ex. A), which will be deemed filed and served as of the date of the hearing on this application.

Motion to Bifurcate –
Aurora moves to bifurcate trial as to its affirmative defenses of res judicata, collateral estoppel, and statute of limitations pursuant to CCP §§ 597 and 598. In connection with the motion, Aurora requests judicial notice of the recorded trustee’s deed upon sale and of various pleadings, documents, and orders filed in unlawful detainer cases (10U11651 and 11U09775) concerning the Property and in an action filed by Plaintiff (BC474417): the RJN is granted. No opposition was filed.

The objectives of bifurcated trials are to “expedite and simplify the presentation of evidence” (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 888) and “avoidance of the waste of time and money caused by the unnecessary trial of damage questions in cases where the liability issue was resolved against the plaintiff” (Plaza Tulare v. Tradewell Stores, Inc. (1989) 207 Cal.App.3d 522, 524).

Aurora argues that BC474417 is based on the same primary rights as in Plaintiff’s current action. See, e.g., Bullock v. Philip Morris USA, Inc. (2011) 198 Cal.App.4th 543, 557. Aurora also argues that the two-year statute of limitations (CCP § 335.1; Stavropoulos v. Superior Court (2006) 141 Cal.App.4th 190, 196-97) bars Plaintiff’s action. The determination of these issues may expedite and simplify trial. Therefore, the motion to bifurcate is granted.