Opinion
D057430
08-16-2011
JAMES KEENAN et al., Defendants and Appellants, v. WEBB & CAREY, APC, Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. GIC 817390)
APPEAL from orders of the Superior Court of San Diego County, Timothy Taylor, Judge. Affirmed.
This appeal is the latest chapter of a 10-year saga in which defendants and appellants James and Judy Keenan (together, the Keenans) have refused to pay attorney fees to their former attorneys, plaintiff and respondent Webb & Carey, APC (Webb). These fees have been reduced to separate judgments against both Judy and James Keenan, and the Keenans have already unsuccessfully challenged the judgments (both at the trial court and on appeal). Most recently, Webb applied to renew the judgments against both Judy and James. In connection with the applications to renew the judgments, Webb submitted two memoranda of costs, seeking costs (including attorney fees) for enforcing the judgments. The Keenans did not timely file motions to tax costs. Almost a month later, however, the Keenans moved to vacate the renewed judgment against James.
We refer to the Keenans individually by first name for convenience only, not out of disrespect.
This appeal arises from the court's order denying the Keenans' motion to vacate the renewal of judgment. In addition, the Keenans appeal an order denying Code of Civil Procedure section 473 relief for their failure to timely file a motion to tax costs.
Statutory references are to the Code of Civil Procedure unless otherwise specified.
FACTUAL AND PROCEDURAL HISTORY
This appeal stems from a 10-year-old dispute over attorney fees, complicated by James's bankruptcy filing. After an arbitrator awarded Webb $516,434.66 for legal services rendered and costs advanced to the Keenans (the award) on August 29, 2001, Webb filed a petition in superior court for confirmation of the award. On January 11, 2005, the court granted the petition and entered judgment for Webb against Judy in the amount of $516,343.66, together with interest in the amount of $170,494.20 calculated at the rate of 10 percent per annum from the date of the award. On December 8, 2005, the court entered judgment for Webb against James in the amount of $516,434.66, together with interest in the amount of $219,449.37 calculated at the rate of 10 percent per annum from the date of the award. The court also awarded Webb attorney fees in the amount of $51,394 and costs in the amount of $2,847.30 as the prevailing party. The judgment against James included the money awarded in the judgment against Judy such that any amount Webb collected on the judgment against Judy would be deducted from the amount of the judgment against James.
A more complete discussion of the factual and procedural background in this case is found in our opinion in Webb & Carey v. Keenan (Dec. 29, 2006, D047948) [nonpub. opn.], review denied March 21, 2007, S150124. In that case, we affirmed the judgment confirming the arbitration award against James. In a related appeal, we also affirmed the judgment confirming the arbitration award against Judy. (See Webb & Carey v. Keenan (Dec. 29, 2006, D045968) [nonpub. opn.], review denied March 21, 2007, S150123.) James subsequently filed another appeal challenging the jurisdiction of the arbitrator to make the award. (See Webb & Carey v. Keenan (May 15, 2007, D048667) [nonpub. opn.].) We dismissed the appeal because it did not raise issues different from what was raised in D047948.
On September 23, 2009, Webb filed two applications for renewal of the 2005 judgments. One concerned the judgment against James and included costs after judgment of $373,233.93 and interest after judgment in the amount of $299,382.36. The other renewal concerned the judgment against Judy and included costs after judgment of $373,233.93 and interest after judgment in the amount of $322,574.80. In support of the costs claimed in the two applications for renewal, Webb filed two memoranda of costs. Each separately requested $373,194.93 in attorney fees as costs. Each memorandum also included a notice to the judgment debtor that stated in part, "A motion to tax costs claimed in this memorandum must be filed within 10 days after service of the memorandum. (Code Civ. Proc., § 685.070(c).)" The memoranda of costs and the applications for judgment were served on the Keenans by mail on September 22, 2009.
The clerk entered the renewals of both judgments on September 23, 2009. Webb served the Keenans with a notice of renewal of judgment for both judgments by mail on September 25, 2009. On October 2, 2009, the Keenans provided their attorney with the notice of renewal of judgment, the applications for renewal of judgment, and the memoranda of costs. They had not filed any motion to tax costs.
On October 26, 2009, the Keenans moved to vacate renewal of judgment under section 683.170, which Webb opposed. The Keenans' motion was four pages long (including the memorandum of points and authorities) and the record does not indicate they filed any evidence with their motion. Although both the Keenans were listed as moving parties, the motion appeared to be directed only at the judgment against James. The motion's caption referenced one judgment and the memorandum of points and authorities addressed one judgment with the same interest amount as the renewed judgment against James ($299,382.36).
In their motion, the Keenans argued that the renewed judgment should be vacated because the amount of the renewed judgment was incorrect. Specifically, the Keenans contended Webb had to bring a noticed motion to claim attorney fees, the underlying 2005 judgment did not include an award of attorney fees, Webb was self-represented and thus not entitled to attorney fees, and the accrued interest amount was incorrect.
The court held a hearing on the Keenans' motion and issued a minute order on December 18, 2009. While the court found the Keenans waived any right to object to the amount of costs by failing to file a motion to tax costs, it continued the hearing and required Webb to file and serve copies of bills and other records supporting its claim for attorney fees. Webb filed and served two separate supplemental memorandum of points and authorities in opposition to the motion to vacate renewed judgment. Webb also submitted copies of its invoices for in camera review by the court. At the continued hearing on the motion to vacate, the court ordered Webb to serve copies of its billing statements on the Keenans, and it again continued the hearing until March 12, 2010.
Webb filed and served its billing statements along with a response to Keenans' supplemental memorandum of points and authorities in support of motion to vacate renewed judgment. After taking the matter under submission, the court issued a three-page, detailed minute order, on March 18, 2010, denying the motion to vacate. The court concluded that the Keenans had waived any right to object to the amount of costs included in the renewal of judgment because they did not timely file a motion to tax costs in response to Webb's memorandum of costs.
Webb's supplemental and additional memoranda reference supplemental filings made by the Keenans. The only supplemental filing by the Keenans included in the record is a declaration of Samy Henein in support of the Keenans' supplemental memorandum of points and authorities in support of the motion to vacate renewal of judgment. The actual supplemental memorandum, however, was not included in the record. Thus, except for the arguments made in the original motion, it is difficult for us to discern what additional arguments, if any, the Keenans made to the court.
The court also denied the motion to vacate because the original judgment included an award of attorney fees and the two-year limitations period for claiming costs, under section 685.070, was tolled under title 11 United States Code sections 108(c) and 362(a). Finally, the court found that the motion to vacate did not challenge the renewal of judgment as to Judy.
Four days after the court denied their motion to vacate the renewed judgment, but approximately 180 days after Webb filed and served the memoranda of costs, the Keenans filed a motion, under section 473, seeking leave to file a motion to tax costs. A declaration of Samy S. Henein, the Keenans' counsel, was filed along with the motion. In the declaration, Henein admitted he received a copy of the notices of renewals of judgment, applications for renewals of judgment, and memoranda of costs from the Keenans on October 2, 2009. Henein further declared that, based on the notices of renewals of judgment, he believed the Keenans needed to file a motion to vacate the renewals of judgment by October 26, 2009. Henein also stated that he did not notice each memorandum of cost contained a separate instruction indicating that a motion to tax costs was required to be filed within 10 days of service. During this time, Henein's mother had been diagnosed with cancer and she passed away on November 1, 2009. Thus, during October 2009, Henein was occupied with medical and family issues regarding his mother. Henein also claimed that the first time he became aware a motion to tax costs was required was after Webb served its opposition to the motion to vacate the renewal of judgment on November 30, 2009.
Webb opposed the section 473 motion. The court denied the Keenans' motion for leave, finding there were no statutory grounds for mandatory relief because no default judgment or judgment had been entered against the Keenans. The court also concluded that the Keenans' newly proposed motion to tax costs contained the same arguments as the Keenans' motion to vacate. Having already considered those arguments, the court denied the Keenans' motion for leave, thus avoiding further litigation of the same issues.
The record did not contain the May 14, 2010 minute order denying the Keenans' motion for leave to file a motion to tax costs. In response to our request for letter briefing addressing our jurisdiction to hear this portion of the appeal, the Keenans submitted a copy of the May 14, 2010 minute order. On our own motion, we augment the record to include the May 14 minute order under California Rules of Court, rule 8.155(a)(1)(A).
DISCUSSION
I
THE MOTION TO VACATE THE RENEWAL OF JUDGMENT
The Keenans contend the court erroneously denied their motion to vacate because: (1) the attorney fees were statutorily barred; (2) the attorney fees were required to be claimed in the proceedings in which they were incurred; (3) Webb was not entitled to attorney fees because it represented itself; (4) the accrued interest is incorrect; and (5) attorney fees must be claimed in a noticed motion. The Keenans also contend that their motion was aimed at the renewals of judgments against both James and Judy.
We conclude that the Keenans forfeited their objection to the attorney fees claimed as costs when they failed to timely file a motion to tax costs. Further, we hold that having forfeited their objection, they could not challenge the costs through a motion to vacate renewal of judgment. In addition, we conclude that the court did not abuse its discretion in denying the motion to vacate regarding the amount of interest in the renewed judgment. Also, we determine the Keenans did not move to vacate the renewal of judgment against Judy.
A. The Renewal of Judgment Against Judy
As a general rule, we are limited to deciding those issues that the appellant has preserved for appeal. " 'An appellate court will ordinarily not consider procedural defects or erroneous rulings, in connection with relief sought or defenses asserted, where an objection could have been but was not presented to the lower court by some appropriate method. . . . The circumstances may involve such intentional acts or acquiescence as to be appropriately classified under the headings of estoppel or waiver . . . . Often, however, the explanation is simply that it is unfair to the trial judge and to the adverse party to take advantage of an error on appeal when it could easily have been corrected at the trial. [Citation.]" (Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184, fn. 1 (Doers), italics omitted; see also In re Marriage of Hinman (1997) 55 Cal.App.4th 988, 1002.)
Further, an appellant has the burden of providing an adequate record and of showing that error occurred and was prejudicial. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295-1996; Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 132.) " 'The appellate court is not required to search the record on its own seeking error.' [Citation.]" (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246.)
In their opening brief, the Keenans argue that they challenged the renewal of judgments as to both James and Judy. They do not, however, provide any citations to the record showing any challenge to the renewal of judgment against Judy. The record includes the Keenans' original notice and motion to vacate renewal of judgment. Although the motion is brought on behalf of the Keenans, it does not make reference to the renewal of judgment as to Judy. Instead, it mentions only one judgment in both the motion's caption and the body of the supporting memorandum of points and authorities. Further, the renewal of judgment discussed in the memorandum references the accrued interest contained in the renewal of judgment as to James ($299,382.36), not Judy ($322,574.80). The record also contains a declaration of Samy Henein filed in support of the Keenans' supplemental memorandum of points and authorities in support of motion to vacate renewal of judgment. It, however, does not address the renewal of judgment against Judy. No other pleadings filed by the Keenans to challenge either of the renewal of judgments are in the record. As such, we conclude that the Keenans did not challenge the renewal of judgment against Judy in their motion and thus have forfeited the right to do so on appeal. (See Doers, supra, 23 Cal.3d at p. 184, fn. 1.)
B. The Renewal of Judgment Against James
1. Attorney Fees as Costs
We generally review the trial court's ruling on a motion to vacate renewal of judgment for an abuse of discretion. (Fidelity Creditor Service, Inc. v. Browne (2001) 89 Cal.App.4th 195, 199 (Fidelity))We review de novo the interpretation of any statutes. (California Teachers Assn. v. San Diego Community College Dist. (1981) 28 Cal.3d 692, 699.)
Here, we must interpret the provisions of sections 685.070, 683.170 and related enforcement of judgment statutes. In construing statutes, we determine and effectuate legislative intent. (People v. Woodhead (1987) 43 Cal.3d 1002, 1007; People ex rel. Younger v. Superior Court (1976) 16 Cal.3d 30, 40.) To ascertain intent, we look first to the words of the statutes. (Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1386-1387; Woodhead, supra, at p. 1007.) "Words must be construed in context, and statutes must be harmonized, both internally and with each other, to the extent possible." (California Mfrs. Assn. v. Public Utilities Com. (1979) 24 Cal.3d 836, 844.)
Under section 685.070, a judgment creditor may claim certain costs associated with enforcing a judgment, including attorney fees if allowed under section 685.040. (§ 685.070, subd. (a)(6).) Section 685.040 allows the recovery of attorney fees as costs if the underlying judgment included an award of attorney fees to the judgment creditor under section 1033.5, subdivision (a)(10)(A). (§ 685.040.) Section 1033.5, subdivision (a)(10)(A) refers to attorney fees recovered under contract. Thus, if the underlying judgment includes an award of attorney fees under a contract then the attorney fees incurred in enforcing the judgment can be recoverable as costs under section 685.070.
Section 685.070, subdivision (c) provides the procedure for challenging the claimed costs incurred in enforcing a judgment: "Within 10 days after the memorandum of costs is served on the judgment debtor, the judgment debtor may apply to the court on noticed motion to have the costs taxed by the court. . . . The court shall make an order allowing or disallowing the costs to the extent justified under the circumstances of the case." "If no motion to tax costs is made within the time provided in subdivision (c), the costs claimed in the memorandum are allowed." (§ 685.070, subd. (d); see also David S. Karton, a Law Corp. v. Dougherty (2009) 171 Cal.App.4th 133, 147 (Karton)["Section 685.070 provides that if the judgment creditor files a memorandum of costs and the judgment debtor does not timely file a motion to tax costs, then the court is required to allow all of the costs claimed in the memorandum of costs. [Citation.]"].) "There are no exceptions to this rule, and the language of subdivision (d) is mandatory." (Lucky United Properties Investment, Inc. v. Lee (2010) 185 Cal.App.4th 125, 146 (Lucky);see also Douglas v. Willis (1994) 27 Cal.App.4th 287, 289-290.)
The Keenans concede that they did not file a motion to tax costs, but argue that the court should have stricken the memorandum of costs under the holding of Sanai v. Saltz (2009) 170 Cal.App.4th 746 (Sanai). In Sanai, the court held that the plaintiff improperly sought attorney fees as restitution. (Id. at pp. 780-782.) In other words, the plaintiff attempted to recover attorney fees through a memorandum of costs that section 685.070 did not permit. (Id. at p. 781.) Further, the trial court specifically requested the defendant to file a motion to strike costs when it found the plaintiff had not properly served the corporate defendants with the memorandum of costs and intentionally altered court documents to show that certain individuals were served on behalf of corporate defendants. (Id. at p. 782.)
Here, in contrast, regardless of whether the claimed attorney fees were proper cost items under section 685.070, they were within the scope of potentially recoverable enforcement costs under section 685.040. (See Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1266 ["If items on their face appear to be proper charges, the verified memorandum of costs is prima facie evidence of their propriety . . ."].) The underlying judgment against James included an award of attorney fees under contract. Further, unlike the defendant in Sanai, supra, 170 Cal.App.4th 746, whom the trial court invited to file a motion to strike costs, the Keenans received no such invitation. Indeed, the Keenans never filed any motion to tax costs. Sanai thus does not support the Keenans' contention.
The language of section 685.070 is clear. If a party wishes to file a motion to tax costs, it must do so within the statutorily required time. (§ 685.070, subd. (c).) Upon failing to do so, the claimed costs are allowed. (§ 685.070, subd. (d).) Once allowed, the costs become part of the renewed judgment. (§ 685.090, subd. (a)(2).) The Keenans failed to file a motion to tax costs. Accordingly, we conclude the Keenans forfeited any objection to the attorney fees included as costs in the memorandum of costs.
Having concluded the Keenans forfeited any objection to the attorney fees by failing to timely file a motion to tax costs, we decide whether they can still challenge the costs added to the amount of a renewed judgment through a section 683.170 motion. The Keenans may not do so.
A money judgment may be enforced for 10 years (§ 683.020) and the period of enforceability may be extended upon application for renewal of judgment before expiration of the original 10-year period. (§§ 683.110, 683.130.) Renewal of a judgment is a ministerial act performed by a court clerk upon receipt of an application for renewal. (§§ 683.120, subd. (b), 683.150, subd. (a); Beneficial Financial, Inc. v. Durkee (1988) 206 Cal.App.3d 912, 915.) Section 683.150, subdivision (a) states: "Upon the filing of the application, the court clerk shall enter the renewal of the judgment in the court records."
"Section 683.170 allows a judgment debtor to move to vacate the renewed judgment." (Fidelity, supra, 89 Cal.App.4th 195, 198, fn. omitted.) "The judgment debtor bears the burden of proving, by a preponderance of the evidence, that he or she is entitled to relief under section 683.170." (Fidelity, supra, at p. 199.)
In seeking to have a renewed judgment vacated, a defendant may raise "any ground that would be a defense to an action on the judgment, including the ground that the amount of the renewed judgment as entered pursuant to this article is incorrect . . . ." (§ 683.170, subd. (a).) For example, a renewed judgment should be vacated where the original judgment was void because the defendant had not been served with process (Fidelity, supra, 89 Cal.App.4th at pp. 202-203), or where the original judgment has been satisfied by an accord and satisfaction (In re Marriage of Thompson (1996) 41 Cal.App.4th 1049, 1058). Because the original judgment is final, however, the grounds upon which enforcement can be challenged are limited.
There is a dearth of published cases construing section 683.170, and none deal with the issue currently before us. We, however, can look to section 1710.40 for guidance. "Section 683.170 is derived from Section 1710.40 pertaining to sister state judgments." (Cal. Law Revision Com. com., 16B West's Ann. Code Civ. Proc. (2009 ed.) foll. § 683.170, p. 172; Fidelity, supra, 89 Cal.App.4th at p. 202.) The language in section 1710.40, subdivision (a), parallels that in section 683.170, providing that a sister state judgment "may be vacated on any ground which would be a defense to an action in this state on the sister state judgment. . . ." Like section 683.170, section 1710.40 does not specify the available defenses. The Law Revision Commission comment to section 1710.40, however, states: "Common defenses to enforcement of a sister state judgment include the following: the judgment is not final and unconditional . . . ; the judgment was obtained by extrinsic fraud; the judgment was rendered in excess of jurisdiction; the judgment is not enforceable in the state of rendition; the plaintiff is guilty of misconduct; the judgment has already been paid; suit on the judgment is barred by the statute of limitations in the state where enforcement is sought." (Cal. Law Revision Com. com., 20 West's Ann. Code Civ. Proc. (2007 ed.) foll. § 1710.40, p. 385; see Fidelity, supra, at pp. 202-203.)
Here, the Keenans' motion to vacate the renewal of judgment as to James does not fit completely into any of the above defenses, or a like ground of relief. The Keenans ostensibly moved to vacate the renewal on the ground that the amount of the renewed judgment is incorrect. In doing so, however, they really challenged two components of the renewed judgment's amount: the costs (i.e., attorney fees) and the interest. We address each component separately.
The Keenans concede that they did not timely file a motion to tax costs under section 685.070, subsection (c). Because they did not do so, those costs were allowed. (See §§ 685.070, subd. (d); see also Lucky, supra, 185 Cal.App.4th at p. 138; Karton, supra, 171 Cal.App.4th at p. 147.) Once allowed, those costs became part of the renewed judgment. (See § 685.090, subd. (a)(2).) However, if the Keenans were permitted to challenge costs under section 683.170 after forfeiting their right to do so under section 685.070, subdivision (d), section 685.070's procedure for challenging costs would become meaningless. (See Woods v. Young (1991) 53 Cal.3d 315, 323 ["Interpretations that lead to absurd results or render words surplusage are to be avoided."] Further, there is nothing in the language of section 683.170 or its legislative history that convinces us that the Legislature intended section 683.170 to allow a judgment debtor a second chance to challenge costs when he already forfeited his objection by failing to timely file a motion to tax costs. Thus, we determine that a judgment debtor cannot challenge costs under section 683.170 after having failed to do so under section 685.070, subdivision (c) in the first instance.
We are aware the court, although it found waiver, addressed the Keenans' substantive challenges to Webb's attorney fees as costs, finding them without merit. On appeal, the Keenans contend the court's ruling on their substantive challenges was in error. We affirm the court's order denying the motion to vacate the renewal of judgment on the grounds of forfeiture. As such, we need not address the Keenans' remaining contentions about the validity of the attorney fees Webb claimed as costs. (See Muller v. Fresno Community Hospital & Medical Center (2009) 172 Cal.App.4th 887, 906-907 ["It is the ruling, and not the reason for the ruling, that is reviewed on appeal."].)
2. Interest
In addition to challenging the attorney fees in their motion to vacate, the Keenans claim that the interest amount and the balance due on the renewed judgment are incorrect. While we conclude that the statute allows the Keenans to challenge the amount of interest added to the renewal of judgment against James, we further conclude they have failed to show the court abused its discretion in denying this portion of their motion to vacate.
Chapter 5 of the Enforcement of Judgments Law (§§ 680.010, 685.010 et seq.) treats interest and costs separately. Costs are primarily addressed in sections 685.040, 685.070, 685.080, and 685.090 while sections 685.020 and 685.030 address interest. Section 685.070, subdivision (c) provides a procedure for challenging costs sought in enforcing a judgment, but Chapter 5 does not provide an analogous vehicle for attacking the amount of interest added to the renewed judgment.
In addition, the amount of interest added to a renewed judgment will be impacted by, among other things, any amount previously paid on the underlying judgment and when the payment was made. In this sense, challenging the interest is no different than challenging the renewed judgment on the grounds that the original judgment has been paid in full or part. A motion to vacate a renewal therefore is the appropriate mechanism to challenge the amount of interest added to the underlying judgment as part of a renewed judgment. (See, e.g., In re Marriage of Thompson, supra, 41 Cal.App.4th at p. 1058 [satisfaction of the underlying judgment is a proper ground on which to challenge a renewal of judgment]; In re Marriage of Henderson (1990) 225 Cal.App.3d 531, 535 [remand for determination of correct amount of renewed judgment].)
The record shows the Keenans argued in their motion to vacate that the interest on the renewed judgment against James was calculated incorrectly because a credit of $185,252.07 was not properly applied. In a subsequently filed declaration, the Keenans' counsel claimed that an additional payment of $39,154.17 also was not properly applied to the underlying judgment. The record, however, does not contain any explanation supporting the Keenans' position. While the Keenans provide analysis of interest calculations in their opening brief, they have not pointed us to, nor can we find, any comparable calculations that they provided to the court with their motion. As such, they have forfeited this argument on appeal. (See Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856.) Moreover, based on the record, we conclude that the court did not abuse its discretion in denying the motion to vacate as to the interest calculation.
To the extent the Keenans attempt to make a separate argument that the balance due under the renewed judgment was incorrect based on the interest and the failure to apply certain payments, this argument fails for the same reasons.
II
THE MOTION FOR LEAVE TO FILE A MOTION TO TAX COSTS
The Keenans argue that the court abused its discretion in denying their motion for leave to file a motion to tax costs because: (1) the court's denial of the motion based on the previous denial to vacate on the merits was erroneous; and (2) good cause was shown for the failure to file a motion to tax costs.
"Our review of this issue is guided by familiar principles which require that we indulge all legitimate and reasonable inferences to uphold the judgment and reverse only upon a showing that the trial court exceeded the bounds of reason in light of all the circumstances. [Citations.] On matters of credibility, we defer to the trial court. [Citation.]" (Ayala v. Southwest Leasing & Rental, Inc. (1992) 7 Cal.App.4th 40, 44.)
Section 473, subdivision (b) grants a court discretion "upon any terms as may be just," to "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." (See Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 254 (Zamora).) Under a separate, mandatory provision of the section, "the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) 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." (§ 473, subd. (b); Gotschall v. Daley (2002) 96 Cal.App.4th 479, 482-483; Benedict v. Danner Press (2001) 87 Cal.App.4th 923, 926.) Generally, we review a decision denying a section 473 motion for abuse of discretion. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 981.)
A. Mandatory Relief
The purpose of the mandatory relief provision of section 473 is " 'to alleviate the hardship on parties who lose their day in court due solely to an inexcusable failure to act on the part of their attorneys.' " (Zamora, supra, 28 Cal.4th at p. 257, italics omitted.) It is a "narrow exception to the discretionary relief provision for default judgments and dismissals." (Ibid.)Here, the Keenans did not move under section 473 to obtain relief from a default judgment or dismissal, but instead to seek affirmative relief in filing a motion. Section 473's mandatory relief thus was not available.
B. Discretionary Relief
Under the discretionary relief portion of section 473, the court may grant relief if the moving party shows an order was taken against him or her because of the attorney's excusable neglect. " 'A party who seeks relief under section 473 on the basis of mistake or inadvertence of counsel must demonstrate that such mistake, inadvertence, or general neglect was excusable because the negligence of the attorney is imputed to his client and may not be offered by the latter as a basis for relief.' " (Zamora, supra, 28 Cal.4th at p. 258.) Conduct falling below the professional standard of care is considered inexcusable and consequently discretionary relief cannot be granted based on such conduct. (Ibid.; Carroll v. Abbott Laboratories, Inc. (1982) 32 Cal.3d 892, 895; Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 682.)
The Keenans contend, without any citation to the record, that good cause was shown for their failure to file a motion to tax costs. In addition, they stress that a court may grant relief under section 473 where a party fails to timely file a motion to tax costs, citing Lane v. Pacific Greyhound Lines (1947) 30 Cal.2d 914 (Lane) to support their contention.
While Lane stands for the proposition that a court may exercise its discretion to grant relief to a party who has not timely filed a motion to tax costs, it does not support the Keenans' contention that the court abused its discretion here. In Lane, the defendants, after sending the plaintiffs a letter questioning certain costs on a cost bill, filed a motion to tax costs four days after the deadline to file the motion. (Lane, supra, 30 Cal.2d at p. 915.) They did so because an inexperienced employee of the defendants' attorney miscalculated the motion to tax costs' due date. (Ibid.)Then, 17 days later, the defendants filed a motion under section 473 for relief from default in failing to timely file the motion to tax costs and for permission to file a second motion. (Lane, supra, at p. 915.) The Supreme Court held that the court did not abuse its discretion by granting the defendants' motion. (Id. at pp. 917-918.)
In contrast, the Keenans did not act quickly to cure their default. The Keenans' counsel admits that he received the memoranda of costs on October 2, 2009, but failed to appreciate that the Keenans needed to respond separately to the memoranda of costs if they were going to file a motion to vacate the renewal of judgment. However, the Keenans' counsel admits he became aware that a motion to tax costs was required when Webb made this argument, on November 30, 2009, in its opposition to the motion to vacate the renewal. The Keenans failed to move for relief under section 473 at that time. In its tentative order dated December 11, 2009 and its minute order dated December 18, 2009, the court found that the Keenans had waived their right to object to the attorney fees as costs by failing to timely file a motion to tax costs. Still the Keenans refrained from seeking relief under section 473. Instead, the Keenans allowed the court to fully consider their motion to vacate and only filed a motion for relief after the court issued its minute order denying their motion.
Although the Keenans' counsel was understandably preoccupied during the month of October with the unfortunate health concerns of his mother, he provided little explanation for the nearly three and a half month delay, after he first became aware that the Keenans had failed to timely file a motion to tax costs, in seeking relief under section 473. He merely stated he was waiting for the court to finally decide if a motion to tax costs would be required. The record, however, is clear that the court, in its tentative ruling on December 11, 2009 and its minute order on December 18, 2009, indicated that it believed the Keenans had waived any objection to the attorney fees by failing to move to tax costs. The Keenans' delay in seeking relief appears to be a tactical decision more than a mistake caused by inadvertence or excusable neglect.
The Keenans for the first time in their reply brief argue that their motion for relief under section 473 was timely under the holding of Lee v. Wells Fargo Bank (2001) 88 Cal.App.4th 1187. However, we need not address arguments made for the first time in a reply brief. (Shade Foods, Inc. v. Innovative Products Sales & Marketing, Inc. (2000) 78 Cal.App.4th 847, 894-895, fn. 10.)
In addition, the Keenans' proposed motion to tax costs contained the very same arguments they advanced in their motion to vacate the renewal of judgment against James. It was within the court's discretion to deny relief under section 473 because the court need not again address identical issues upon which it has already ruled. There is no evidence in the record that the court's ruling was the product of "arbitrary determination, capricious disposition or whimsical thinking." (In re Cortez (1971) 6 Cal.3d 78, 85.) The court simply did not find it appropriate to address the same issues that already had been thoroughly litigated. This was proper, and accordingly, we conclude that the court did not abuse its discretion in denying the Keenan's motion for relief under section 473.
DISPOSITION
The orders are affirmed. Webb is awarded costs on appeal.
HUFFMAN, Acting P. J. WE CONCUR:
HALLER, J.
McDONALD, J.