Campman v. Neborsky CA4/1
- Proceeding
- appeal from a judgment
- Trial court
- Superior Court of San Diego County · No. 37-2014-00009502-CU-HR-CTL
- Trial judge
- Tamila E. Ipema
- Outcome
- affirmed — Affirmed.
- Area
- civil
- Panel
- Patricia D. Benke (author), Judith D. McConnell, Cynthia Aaron
Analysis
The trial court granted plaintiff's motion for reconsideration and awarded $4,000 in attorney fees after initially denying the fees due to a perceived requirement to file a memorandum of costs. The Court of Appeal affirmed the order, holding that any error in granting reconsideration was harmless because the initial denial was legally erroneous under California Rules of Court, rule 3.1702.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Order granting motion for reconsideration and awarding attorney fees“Here, any error the trial court committed in granting the motion for reconsideration and awarding fees was harmless, because, as we explain, the order merely corrected the trial court's earlier error.” | abuse of discretion | harmless error | agree with court The appellate court applied the harmless error standard, determining that the appellant failed to show prejudice because the trial court's initial denial of fees was itself erroneous. Since the initial order was wrong as a matter of law (requiring a memorandum of costs for attorney fees under Rule 3.1702), the subsequent correction via reconsideration did not harm the appellant. The court relied on the principle that an appellant must show injury from error, not just error itself, and cited Paramount Petroleum Corp. v. Superior Court for the proposition that procedural errors in granting reconsideration are affirmed when the initial order was erroneous. This reasoning is consistent with California law regarding harmless error and the specific rules governing attorney fees as costs. |
Authorities
- relied: Kaufman v. Diskeeper Corp. (2014) 229 Cal.App.4th 1 — In order to recover attorney fees as costs, a litigant is not required to file a memorandum of costs; Rule 3.1702 only requires a motion.
- relied: Paramount Petroleum Corp. v. Superior Court (2014) 227 Cal.App.4th 226 — Procedural error in granting a motion for reconsideration is affirmed where the initial order was erroneous, as the appellant is not prejudiced.
- relied: Robbins v. Los Angeles Unified School Dist. (1992) 3 Cal.App.4th 313 — The burden is on the appellant to show injury from the error, not just the error itself.
- relied: Norman I. Krug Real Estate Investments, Inc. v. Praszker (1990) 220 Cal.App.3d 35 — Postjudgment orders granting attorney fees are separately appealable.
- relied: Johnston v. Corrigan (2005) 127 Cal.App.4th 553 — A proper appeal from an attorney fee award allows the court to consider the merits of the underlying ruling granting reconsideration.
- relied: Pazderka v. Caballeros Dimas Alang, Inc. (1998) 62 Cal.App.4th 658 — Counsel's mistake of law is not a new fact, circumstance, or law supporting a motion for reconsideration.
- relied: Garcia v. Hejman (1997) 58 Cal.App.4th 674 — Due diligence is required for relief under Code of Civil Procedure, section 1008, subdivision (a).
The appellate opinion: sound — The opinion is sound because it correctly identifies that the trial court's initial denial of fees was legally erroneous under Rule 3.1702, which governs attorney fees as costs and does not require a memorandum of costs. By establishing that the initial order was wrong, the court logically concludes that the subsequent correction via reconsideration caused no prejudice to the appellant, satisfying the harmless error standard.
How this analysis was made · dispute it
unusual dispositionThe trial court first denied Linda Campman's motion for attorney fees because she had not filed a timely memorandum of costs, then granted her motion for reconsideration based on Kaufman v. Diskeeper Corp. and awarded her $4,000 in fees against John Neborsky. The Court of Appeal affirmed, holding that even if the reconsideration motion did not satisfy Code of Civil Procedure section 1008, any error was harmless because the original denial of fees was itself legally erroneous and Neborsky suffered no prejudice from its correction.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Order granting Campman's motion for reconsideration under Code of Civil Procedure section 1008 despite questionable showing of diligence in discovering Kaufman“However, even if were we to find, as Neborsky urges, that the trial court erred in granting the motion to reconsider, we would be required to affirm the trial court's order.” | unclear | harmless error (procedure) | agree with court The court did not decide whether section 1008's new-law and diligence requirements were met; it acknowledged in a footnote that Campman's diligence showing was unpersuasive (Kaufman was published before her original motion, and counsel's mistake of law is not a new fact or law under Pazderka and Garcia) but applied article VI, section 13 and Robbins/Paramount Petroleum to hold that an appellant must show prejudice. Because the initial fee denial was wrong, correcting it caused Neborsky no cognizable injury. This mirrors Paramount Petroleum, which affirmed a procedurally flawed reconsideration where the original ruling was erroneous. The harmless-error route is a legitimate basis for affirmance and the authorities support it. |
Initial order denying attorney fees on the ground that rule 3.1700 required a timely memorandum of costs in addition to a rule 3.1702 motion“Thus, in initially denying Campman's otherwise meritorious motion for attorney fees, the trial court erred.” | de novo | error (law misapplied) | agree with court Interpretation of the Rules of Court is a question of law. Rule 3.1702 expressly governs claims for statutory attorney fees as costs by noticed motion, while rule 3.1700's memorandum-of-costs procedure governs other costs; Kaufman so held and the court adopted that reasoning, noting that requiring both filings would be inconsistent with the rules' text and impractical. The trial court had already found Campman was the prevailing party entitled to fees and that fees were also warranted as sanctions, so the only barrier was the procedural one the court correctly removed. The analysis is persuasive and consistent with published authority. |
Postjudgment order awarding Campman $4,000 in attorney fees“Because the trial court's initial order denying attorney fees was erroneous and subject to attack on appeal, Neborsky was in no sense prejudiced by the trial court's order granting reconsideration and correcting its error.” | unclear | correct | agree with court The court confirmed the award was separately appealable (Norman I. Krug) and that the appeal reached the underlying reconsideration ruling (Johnston v. Corrigan). Neborsky did not challenge the fee entitlement or amount on the merits, only the reconsideration procedure, so once the procedural objection failed for lack of prejudice the award stood. The trial court's own findings that Campman prevailed in both proceedings and that Neborsky's repetitive litigation supported fees as sanctions were unchallenged. Affirmance follows. |
Authorities
- relied: Kaufman v. Diskeeper Corp. (2014) 229 Cal.App.4th 1 — A litigant seeking attorney fees as costs need only file a noticed motion under rule 3.1702 and is not required to file a memorandum of costs under rule 3.1700.
- relied: Paramount Petroleum Corp. v. Superior Court (2014) 227 Cal.App.4th 226 — Procedural error in granting a motion for reconsideration does not require reversal where the initial order was itself erroneous, because the appellant suffers no prejudice.
- relied: Robbins v. Los Angeles Unified School Dist. (1992) 3 Cal.App.4th 313 — Error alone does not warrant reversal; the appellant must show injury from the error.
- relied: Norman I. Krug Real Estate Investments, Inc. v. Praszker (1990) 220 Cal.App.3d 35 — Postjudgment orders granting attorney fees are separately appealable.
- relied: Johnston v. Corrigan (2005) 127 Cal.App.4th 553 — An appeal from an appealable order permits review of the underlying ruling granting reconsideration.
- relied: Pazderka v. Caballeros Dimas Alang, Inc. (1998) 62 Cal.App.4th 658 — Counsel's mistake of law is not a new fact, circumstance, or law supporting a motion for reconsideration.
- relied: Garcia v. Hejman (1997) 58 Cal.App.4th 674 — A party seeking reconsideration under section 1008 must show diligence in presenting the new matter.
- relied: People v. Edward D. Jones & Co. (2007) 154 Cal.App.4th 627 — Reversal requires a showing of prejudice from the asserted error.
- missed: Le Francois v. Goel (2005) 35 Cal.4th 1094 — Section 1008 limits party motions for reconsideration but does not restrict a trial court's inherent power to correct its own erroneous interim rulings on its own motion, even when prompted by a procedurally defective party motion; this would have strengthened the court's harmlessness conclusion.
The appellate opinion: sound with gaps — The court properly sidestepped the contested section 1008 diligence question by applying the constitutional harmless-error requirement and Paramount Petroleum, and its adoption of Kaufman's reading of rules 3.1700 and 3.1702 is correct and well supported. It did not, however, state a standard of review for the reconsideration ruling, did not address the Supreme Court's Le Francois decision on a trial court's inherent power to correct its own errors, and did not discuss whether the fee-denial order's status as a final postjudgment order affected the analysis.
Opinion
Filed 4/26/16 Campman v. Neborsky CA4/1 NOT TO BE PUBLISHED IN 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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
LINDA CAMPMAN, D068357
Plaintiff and Respondent, v. (Super. Ct. No. 37-2014-00009502- CU-HR-CTL) JOHN NEBORSKY, Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Tamila E.
Ipema, Judge. Affirmed.
John Neborsky, in pro. per., for Defendant and Appellant.
Elliott N. Kanter for Plaintiff and Respondent.
By way of an order granting plaintiff and respondent Linda Campman's motion for reconsideration, the trial court awarded her $4,000 in attorney fees. On appeal, defendant and appellant John Neborsky argues that Campman failed to demonstrate that her motion was supported by any new fact, circumstance or law. We affirm. Although a postjudgment order awarding attorney fees is separately appealable, on appeal an appellant must show that any error caused harm. Here, any error the trial court committed in granting the motion for reconsideration and awarding fees was harmless, because, as we explain, the order merely corrected the trial court's earlier error.
FACTUAL AND PROCEDURAL BACKGROUND
On April 23, 2014, Campman obtained a restraining order against Neborsky. The restraining order grew out of a neighborhood dispute between Campman, her husband, and Neborsky and listed both Campman and her husband as protected persons.
After the restraining order was issued, Neborsky filed his own petition for a restraining order against Campman. The trial court dismissed Neborsky's petition for a restraining order on July 30, 2014.
On September 16, 2014, Campman moved to recover attorney fees incurred in obtaining her restraining order and in opposing Neborsky's request for a restraining order.
Thereafter, the trial court denied Neborsky's three successive motions to vacate the restraining order Campman had obtained.
On November 20, 2014, Neborsky filed his opposition to the motion for attorney fees. In his opposition, Neborsky argued that under California Rules of Court, rule 3.1700, Campman was required to file a timely memorandum of costs in order to recover attorney fees. At a December 8, 2014, hearing, the trial court agreed with Neborsky and directed Campman to file a memorandum of costs. On January 15, 2015, Campman served and filed a memorandum of costs.
2 On February 3, 2015, the trial court denied Campman's motion for attorney fees.
The trial court found that, on the merits, as the prevailing party in both proceedings, Campman was entitled to attorney fees and that, in light of Neborsky's repetitive litigation over the order it had issued in Campman's favor, as well as his unsuccessful attempt to obtain a restraining order, attorney fees could also be awarded as sanctions.
However, the trial court nonetheless found that, in order to recover attorney fees, in addition to moving for attorney fees under California Rules of Court, rule 3.1702, California Rules of Court, rule 3.1700 required that Campman file a memorandum of costs; the trial court also found that her January 15, 2015 memorandum of costs was untimely.
On February 18, 2015, Campman made a motion to reconsider. She argued that her counsel had only recently discovered the holding in Kaufman v. Diskeeper Corp.
(2014) 229 Cal.App.4th 1, 8-9 (Kaufman) and had not discovered it before the trial court ruled on her motion. In Kaufman, in analogous circumstances the court held that, in order to recover attorney fees, a litigant is not required to file a memorandum of costs.
(Ibid.) The trial court granted Campman's motion to reconsider and ordered that Neborsky pay her $4,000 in attorney fees. Neborsky filed a timely notice of appeal.
DISCUSSION
We begin by noting Neborsky had the right to appeal from the trial court's order awarding Campman attorney fees. Postjudgment orders granting attorney fees are separately appealable. (Norman I. Krug Real Estate Investments, Inc. v. Praszker (1990)
3 220 Cal.App.3d 35, 46.) Neborsky's proper appeal from the attorney fee award allows us to consider the merits of the underlying ruling granting reconsideration. (Johnston v. Corrigan (2005) 127 Cal.App.4th 553, 556.)
However, even if were we to find, as Neborsky urges, that the trial court erred in granting the motion to reconsider, we would be required to affirm the trial court's order.
"Error alone . . . does not warrant reversal. 'The burden is on the appellant, not alone to show error, but to show injury from the error.' " (Robbins v. Los Angeles Unified School Dist. (1992) 3 Cal.App.4th 313, 318; see Paramount Petroleum Corp. v. Superior Court (2014) 227 Cal.App.4th 226, 238; People v. Edward D. Jones & Co. (2007) 154 Cal.App.4th 627, 634; Cal. Const., art. VI, § 13.)
Here, Neborsky contends that Campman failed to show that she acted with due diligence in only discovering the Kaufman case after her initial motion for attorney fees was denied. However, true as that may be,1 it is of no moment in light of the fact that we agree with the court's analysis in Kaufman. By its express terms, the recovery of attorney fees as costs is governed by California Rules of Court, rule 3.1702, which only requires a motion; all other costs are governed by the memorandum of costs procedure set forth in 1 The opinion in Kaufman was ordered published on August 21, 2014, before Campman made her motion for attorney fees and before Neborsky argued, and the trial court agreed, that a memorandum of costs was required. As Neborsky contends on appeal, Campman did not make an entirely persuasive case that counsel exercised due diligence in only discovering the holding in Kaufman after the trial court denied her motion. (See Pazderka v. Caballeros Dimas Alang, Inc. (1998) 62 Cal.App.4th 658, 670 [counsel's mistake of law not a new fact, circumstance or law supporting motion for reconsideration].) Such diligence is required for relief under Code of Civil Procedure, section 1008, subdivision (a). (See Garcia v. Hejman (1997) 58 Cal.App.4th 674, 688.) 4 California Rules of Court, rule 3.1700. (See Kaufman, supra, 229 Cal.App.4th at pp. 8- 10.) Requiring both a motion and a memorandum of costs is not only inconsistent with the express terms of the rules, but it also would be impractical and unduly burdensome on litigants. (Ibid.) Thus, in initially denying Campman's otherwise meritorious motion for attorney fees, the trial court erred. (Ibid.)
Because the trial court's initial order denying attorney fees was erroneous and subject to attack on appeal, Neborsky was in no sense prejudiced by the trial court's order granting reconsideration and correcting its error. (See Paramount Petroleum Corp. v. Superior Court, supra, 227 Cal.App.4th at p. 238 [procedural error in granting motion to reconsider affirmed where initial order erroneous].) Because under no set of circumstances was Neborsky prejudiced by the trial court's order, we are required to affirm it. (Ibid.)
DISPOSITION
The order granting reconsideration is affirmed. Campman to recover her costs on appeal. BENKE, J.
WE CONCUR:
McCONNELL, P. J.
AARON, J.
Cites, in this corpus
- Kaufman v. Diskeeper Corp. B248151 · 2014-08-21
- Paramount Petroleum Corp. v. Superior Court B253290 · 2014-06-20
- People v. Edward D. Jones & Co. C053407 · 2007-08-24
- Johnston v. Corrigan B174452 · 2005-03-11
- Pazderka v. Caballeros Dimas Alang, Inc. A078278 · 1998-03-25
- Garcia v. Hejmadi A068031 · 1997-10-20
- Robbins v. Los Angeles Unified School District B049347 · 1992-01-21
- Norman I. Krug Real Estate Investments, Inc. v. Praszker A042489 · 1990-05-09