Opinion
No. B160621.
10-7-2003
JULIE WONG, Plaintiff and Appellant, v. UNITED NATIONAL BANK et al., Defendants and Respondents.
Gregory Grantham for Plaintiff and Appellant. La Follette, Johnson, De Haas, Fesler, Silberberg & Ames, Steven J. Joffe and David J. Ozeran for Defendants and Respondents.
Julie Wong appeals from the denial of her posttrial motions for orders (1) excusing her late filed cost bill under Code of Civil Procedure section 473 and seeking an extension of time to file under California Rules of Court, rule 870(b)(3), and (2) denying her motion for reconsideration. Wong contends that the trial court abused its discretion in denying the motions. We affirm.
Unless otherwise indicated, all further statutory references are to the Code of Civil Procedure and all undesignated rule references are to the California Rules of Court.
On March 26, 2002, the trial court entered a judgment in favor of Wong in her action against respondents United National Bank, Century 21 Update Realty, and Interco Management. Wong served notice of entry of judgment by mail on March 27, 2002.
The pages of appellants appendix are not consecutively numbered, in violation of rules 5.1(c)(1) and 9(a)(1)(D).
Wong filed her memorandum of costs on May 15, 2002, 49 days after service of notice of entry of judgment. On the same day, Wong filed her motion for order excusing her late filing of the cost bill and seeking an extension of time to file under rule 870(b)(3). The motion was based upon both the discretionary and mandatory provisions of section 473, and urged that the cost bill was filed within the 30-day extension period of rule 870(b)(3). Counsel for Wong stated, "I did not file the Memorandum of Costs within 20 days of serving the Notice of Entry of Judgment as required by California Rules of Court, Rule 870 because I did not check the rule and mistakenly recalled that the filing of a motion for new trial extends the date." Respondents opposed the motion. The trial court denied the motion on June 6, 2002.
On June 19, 2002, Wong filed her motion for reconsideration of the ruling, urging that the cost bill was filed late because of counsels press of business. The trial court denied the motion for reconsideration, stating that Wong "has not made a satisfactory showing as to the failure to produce the alleged evidence at an earlier time." This appeal followed.
DISCUSSION
We review the trial courts rulings on motions for relief based upon mistake, inadvertence, surprise, or excusable neglect under section 473, subdivision (b) and for reconsideration under the abuse of discretion standard. (Robbins v. Los Angeles Unified School Dist. (1992) 3 Cal.App.4th 313, 319 [section 473 motion]; Glade v. Glade (1995) 38 Cal.App.4th 1441, 1457 [motion for reconsideration].) We independently review questions of law. (Harustak v. Wilkins (2000) 84 Cal.App.4th 208, 212.)
I. Rule 870(b)(3) extension
Rule 870(a)(1) requires a prevailing party to serve and file a memorandum of costs within 15 days after service of written notice of entry of judgment. Under rule 870(b)(3), that period may be extended "for a period not to exceed 30 days." Wong asserts that her cost bill, filed 49 days after notice of entry of judgment, was within the period encompassed by the two intervals. Her position is based upon section 1013, subdivision (a), under which she would add five days for mailing of the notice of ruling.
Wong was the party who served notice of entry of judgment. The five-day extension provided for in section 1013, subdivision (a) "applies only to the party served," not to the party serving notice. (Westrec Marina Management, Inc. v. Jardine Ins. Brokers Orange County, Inc. (2000) 85 Cal.App.4th 1042, 1049.) The five-day extension therefore does not apply.
II. Section 473
(A) Discretionary relief
Wong contends that the trial court abused its discretion in denying her motion for discretionary relief for mistake, inadvertence, surprise, or excusable neglect pursuant to Code of Civil Procedure section 473, subdivision (b). We disagree.
Wong has not shown an abuse of discretion. Wongs request for relief was based upon a mistake of law, counsels belief that the filing of a motion for new trial extended the period in which to file the cost bill. Whether a mistake in law is a ground for relief depends upon factors including the reasonableness of the misconception and the justifiability of the lack of determination of the correct law: ignorance of the law coupled with negligence in ascertaining it is sufficient to sustain a finding denying relief. (Robbins v. Los Angeles Unified School Dist., supra, 3 Cal.App.4th at p. 319.) Here, the trial court determined by implication that the legal mistake was insufficient to constitute excusable neglect. Since counsel apparently made no effort to ascertain the validity of his erroneous belief, we find no basis to reverse that determination.
Hoover Community Hotel Development Corp. v. Thomson (1985) 168 Cal.App.3d 485 (Hoover) and Pollard v. Saxe & Yolles Dev. Co. (1974) 12 Cal.3d 374 (Pollard), relied upon by Wong, are distinguishable. Although those cases state that the trial court has broad discretion in allowing relief from the late filing of a cost bill where there is no showing of prejudice to the opposing party (Hoover, at p. 488; Pollard, at pp. 380-381), in both, the trial court granted relief. Here, the trial court proceeded well within its discretion in denying the requested relief.
(B) Mandatory relief
Wong also sought relief in the trial court based upon her attorneys affidavit of fault under the mandatory provision of section 473. She conceded in her reply papers below that the mandatory provision "probably does not apply in the instant case." Wong does not argue in her opening brief that the trial court erred in denying relief under the mandatory provision. She has therefore waived the issue.
III. Motion for reconsideration
Wongs contention that the trial court abused its discretion in failing to grant her motion for reconsideration also lacks merit. In her motion for reconsideration, Wongs counsel urged that the cost bill was not timely filed because of the press of business and because the cost bill was difficult and time consuming to prepare.
In order to be entitled to reconsideration, a party must show that evidence of new and different facts exists and a satisfactory reason for failing to produce the evidence at the original hearing. (McPherson v. City of Manhattan Beach (2000) 78 Cal.App.4th 1252, 1265.) Wongs motion for reconsideration contains no explanation for her failure to present the "new" evidence in the original motion for relief. In fact, those circumstances must have been known by counsel when the original motion was filed. The trial court therefore did not abuse its discretion in denying reconsideration.
DISPOSITION
The orders appealed from are affirmed. Respondents shall recover their costs of appeal from Julie Wong.
We concur: BOREN, P.J. and DOI TODD, J.