2018-00228378-CU-FR

William J. Carlisle vs. Donna DeCuir

Nature of Proceeding: Motion for Reconsideration

Filed By: Carlisle, William J.

Plaintiff’s motions for reconsideration and/or clarification of the court’s 9/17/2018 order granting defendant Donna DeCuir dba Law Office of Donna DeCuir’s (“DeCuir”) motion for attorney fees and costs following her successful special anti-SLAPP motion to

strike and for stay of execution of monetary judgment is ruled on as follows.

The notice of motion does not comply with Code of Civil Procedure §1010 or CRC Rule 3.1110(a).

Plaintiff failed to comply with CRC Rule 3.1110(b)(3)-(4).

The court notes that plaintiff paid only one $60 filing fee in connection with these motions, although it seeks at least two (2) different orders (i.e., reconsideration/clarification and a stay of enforcement). A separate filing fee is required for each. (Gov. Code §70617(f).) No later than 11/16/2018, plaintiff shall make payment of an additional $60 to the court clerk.

Factual Background

This action arises from the marital dissolution proceedings between plaintiff and his wife. Plaintiff, a licensed attorney, for the most part represented himself while his wife was primarily represented by defendant DeCuir. It appears the dissolution proceedings in El Dorado County have been rather contentious in numerous respects.

Plaintiff’s complaint filed on 3/5/2018 purported to allege against DeCuir only causes of action for breach of fiduciary duty, fraud, unfair trade practices, embezzlement, unjust enrichment, professional malpractice and breach of the implied covenant of good faith and fair dealing. Defendant DeCuir successfully moved to strike the entirety of plaintiff’s complaint on the ground it arose from DeCuir’s conduct in furtherance of the exercise of her constitutional right to petition for relief on behalf of her client so as to fall within the protections afforded by the provisions of Code of Civil Procedure §425.16(e), with this court finding that plaintiff failed to make the showing necessary to establish a “probability of prevailing” on the various causes of action alleged in the complaint in order to prevent the latter from being stricken in its entirety pursuant to §425.16(b).

Having prevailed on her anti-SLAPP motion, defendant DeCuir then sought an award of at least $15,010 for attorney fees and costs incurred in connection with the anti-SLAPP motion. Although plaintiff filed what was labeled an “Objection” to the attorney fees motion in which he asserted a number of extraneous arguments relating to the underlying marital dissolution proceedings in El Dorado County and an alleged “conflict of interest” as a result of plaintiff and defendant having the same insurer for errors and omissions coverage, this court granted in part defendant DeCuir’s motion for attorney fees on 9/17/2018. More specifically, defendant DeCuir was awarded $12,000 in attorney fees for the anti-SLAPP motion plus another $2,300 for the attorney fees motion, along with costs of $495 (consisting of the $435 first appearance fee plus the $60 fee for the present motion).

Plaintiff did not request oral argument on 9/17/2018 to contest the tentative ruling on the attorney fees motion but instead, for unknown reasons, filed on the same date the present motion for reconsideration and/or clarification of the 9/17/2018 order (as well as a motion to stay of defendant’s execution of the monetary judgment against plaintiff).

Notably, on 10/29/2018 the court entered a judgment of dismissal of plaintiff’s complaint pursuant to the earlier 6/8/2018 order granting defendant DeCuir’s anti-

SLAPP motion although plaintiff filed a notice of appeal back on 6/8/2018, the very same day the anti-SLAPP motion was granted without any request for oral argument.

Analysis

At the outset, the court notes that plaintiff’s declaration on Pages 2-4 of the moving papers is not signed under penalty of perjury in conformity with Code of Civil Procedure §2015.5 and this renders its entire contents inadmissible. The same is true for plaintiff’s purported declaration in his reply to the opposition. The court also declines to consider any of the “new” matters argued in the reply which were not timely raised in the moving papers since defendant did not have any opportunity to respond to these “new” matters such as plaintiff’s claims that “it may be necessary to join [defendant DeCuir] formally into the… El Dorado County [marital dissolution] proceedings” and “Plaintiff will prevail in the El Dorado Superior Court Trial.” Regardless, there is no admissible evidence supporting either claim.

Motion for Reconsideration and/or Clarification of 9/17/2018 Order. First, to the extent plaintiff seeks reconsideration of the 9/17/2018 order pursuant to Code of Civil Procedure §1008, the motion must be denied for several reasons. Although plaintiff filed and served the present motion well before the entry of judgment on 10/29/2018, this court lost jurisdiction to entertain the motion for reconsideration once the judgment was entered on 10/29/2018. (See, e.g., Ramon v. Aerospace Corp. (1996; review denied) 50 Cal.App.4th 1233, 1236 [after entry of judgment trial court has no further power to rule on motion for reconsideration]; Blake v. Ecker (2001; overruled on other grounds) 93 Cal.App.4th 728, 739 [courts retain inherent power to reconsider and change orders at any time prior to entry of judgment]; Robbins v. Los Angeles Unified School District (1992) 3 Cal.App.4th 313, 317 [order may be corrected pursuant to Code of Civil Procedure §1008 at any time up to entry judgment].)

Additionally, despite the express requirements of Code of Civil Procedure §1008, plaintiff has failed to identify any new or different law, facts or circumstances which arguably relate to any issue presented by defendant’s earlier motion for attorney fees and costs and/or which tend to show the outcome should now be reconsidered. Even assuming the moving papers had cited some any new or different law, fact or circumstance, plaintiff failed to demonstrate that any allegedly new or different law, fact or circumstance could not with reasonable diligence have been presented at or before the 9/17/2018 hearing on the attorney fee motion. (See, e.g. Blue Mountain Development Co. v. Carville (1982) 132 Cal.App.3d 1005 [superseded by statute as stated in Ford Motor Co. v. Superior Court (1995) 35 Cal.App.4th 997].) Confirmation that this latter standard cannot be satisfied is found in the undisputed fact plaintiff filed the present motion at 9:08 a.m. on 9/17/2018, the time at which oral argument would have occurred had plaintiff requested it. For all these reasons, reconsideration must be and hereby is denied.

Plaintiff’s request for clarification will also be denied since the 9/17/2018 order granting defendant DeCuir’s motion for attorney fees and costs plainly states the amount she is entitled to recoup from plaintiff’s SLAPP-suit and since the court, in ruling on a motion for attorney fees, need to provide the type of specificity plaintiff seems to desire. In the end, the court determined in its discretion the amount of fees and costs which were reasonably incurred by defendant DeCuir in connection with the earlier proceedings and plaintiff’s suggestion that the hourly rates and/ number of hours claimed by DeCuir’s attorneys’ are “not credible” neither supported by the evidence nor relevant to

the question of whether the 9/17/2018 order requires or otherwise warrants “clarification.” Moreover, to the extent plaintiff may have desired “clarification” of the court’s ruling, he could have and should have but inexplicably did not request an opportunity to be heard at 9:00 a.m. on 9/17/2018. Instead, it appears he chose to spend his time preparing the present motion, ultimately filing it at 9:08 a.m. on 9/17/2018. Under these circumstances, the court finds no legitimate need or justification for a further clarification of the 9/17/2018 order awarding defendant DeCuir $14,300 in attorney fees plus costs of $495.

Plaintiff’s request for an order compelling defendant DeCuir to produce her attorneys’ billing records must be denied since these records are not necessary for the disposition of the present motion and since they are also protected by both the attorney-client privilege and attorney work-product doctrine, neither of which is properly invaded here.

Motion for Stay of Execution. According to the moving papers, plaintiff requests on Page 7:12-20 “a stay of the [9/17/2018] order relating to attorney’s fees…until the true amount of actual billings can be better ascertained” and adds that “issues similar to the SLAPP motion are currently scheduled to be heard in El Dorado County Superior Court, with named Defendant [DeCuir] scheduled to appear to present testimony, bolstering Plaintiff’s request for a stay of enforcement of the order.” However, this motion for a stay of enforcement must also be denied for several reasons.

First, plaintiff failed to pay the $60 filing fee for this motion and for this alone, the court need not entertain this second motion. Second, to the extent the request for a stay is based upon a belief that a determination of “the true amount of actual billings” is either necessary or forthcoming in response to plaintiff’s motion for reconsideration/clarification, plaintiff’s request is now effectively moot given that his motion for reconsideration/clarification has been denied and that the attorney billing records sought by plaintiff are not under the circumstances of this case amenable to compelled disclosure. Additionally, although the moving papers cite to Code of Civil Procedure §918 and §918.5 on Page 8, there is no meaningful discussion of either provision or the standards applicable to the discretionary relief described in these statutes, which could be construed a concession that there is no merit to plaintiff’s claims under these enactments.

Notwithstanding the preceding paragraph, the court finds that a stay of enforcement pursuant to Code of Civil Procedure §918.5 is categorically not appropriate under the circumstances presented here. Code of Civil Procedure §918.5 provides in its entirety:

(a) The trial court may, in its discretion, stay the enforcement of a judgment or order if the judgment debtor has another action pending on a disputed claim against the judgment creditor.

(b) In exercising its discretion under this section, the court shall consider all of the following:
(1) The likelihood of the judgment debtor prevailing in the other action.
(2) The amount of the judgment of the judgment creditor as compared to the amount of the probable recovery of the judgment debtor in the action on the disputed claim.

(3) The financial ability of the judgment creditor to satisfy the judgment if a judgment is rendered against the judgment creditor in the action on the disputed claim.

(Underline added for emphasis.)

Plaintiff’s reliance on this statute’s provisions is misplaced since he simply does not currently have any another action pending against defendant DeCuir, the judgment creditor in the present case. To the extent plaintiff is referring to the marital dissolution action now pending in El Dorado County, it is clear that defendant DeCuir is not a party to that action which involves a dispute solely between plaintiff and his wife. Accordingly, plaintiff has as a matter of law no likelihood of prevailing against defendant DeCuir in the El Dorado County action and thus, each of the factors set forth in subdivision (b) which must be considered before issuing a stay pursuant to §918.5 necessarily and uniformly weigh against the court exercising its discretion by granting such a stay of enforcement based on the pendency of another action against defendant DeCuir which could act as a potential setoff against the amount the judgment recently entered against plaintiff.

Although Code of Civil Procedure §918 does not impose the same specific restrictions on a stay that §918.5 does, plaintiff has failed to persuade this court it should exercise its discretion by imposing a stay of limited duration based on the present record.

Code of Civil Procedure §918 provides in its entirety:

(a) Subject to subdivision (b), the trial court may stay the enforcement of any judgment or order.

(b) If the enforcement of the judgment or order would be stayed on appeal only by the giving of an undertaking, a trial court shall not have power, without the consent of the adverse party, to stay the enforcement thereof pursuant to this section for a period which extends for more than 10 days beyond the last date on which a notice of appeal could be filed.

(c) This section applies whether or not an appeal will be taken from the judgment or order and whether or not a notice of appeal has been filed. (Underline added for emphasis.)

As pointed out above, the first alleged justification for the stay being sought by plaintiff is to allow the court to determine “the true amount of actual billings” but such a determination is neither necessary nor imminent in this case. The second claimed basis for seeking a stay is plaintiff’s representation that defendant DeCuir will be ‘testifying’ in the El Dorado County marital dissolution proceedings but such testimony will not change the fact a judgment has now been entered in favor of DeCuir in this court nor is there any competent evidence her testimony is likely to alter the amount of attorney fees and costs this court found reasonably incurred in this action. Consequently, the court will exercise its discretion under §918 by denying plaintiff’s motion for a stay of enforcement.

This minute order is effective immediately. No formal order or other notice is required. (Code Civ. Proc. §1019.5; CRC Rule 3.1312.)