Opinion
F059553 Super. Ct. No. 05CECG01752
10-31-2011
VALLEY ADVOCATES et al., Plaintiffs and Appellants, v. CITY OF FRESNO et al., Defendants and Respondents; PEREZ, WILLIAMS & MEDINA, Real Party in Interest and Respondent.
Law Offices of Richard L. Harriman, and Richard L. Harriman for Plaintiffs and Appellants. Dowling, Aaron & Keeler and Lynne Thaxter Brown for Defendants and Respondents. No appearance for Real Party in Interest and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from a judgment of the Superior Court of Fresno County. Alan M. Simpson, Judge.
Law Offices of Richard L. Harriman, and Richard L. Harriman for Plaintiffs and Appellants.
Dowling, Aaron & Keeler and Lynne Thaxter Brown for Defendants and Respondents.
No appearance for Real Party in Interest and Respondent.
In this appeal, plaintiffs challenge the trial court's denial of their motion to reconsider and modify an order denying their motion for attorney fees.
Plaintiffs contend the trial court abused its discretion because it failed to consider, address, or rule upon the portion of their motion based on Code of Civil Procedure section 473, subdivision (a). This contention, however, does not account for the rule requiring appellate courts to indulge all intendments and presumptions that support the lower court's order. Under this rule, we presume that the trial court made implied findings and rulings on matters where the record is silent. Thus, the fact that a trial court's written order denying a motion does not explicitly address each ground raised does not establish that the trial court did not consider and reject that ground. In short, plaintiffs have not shown the trial court violated any duty or abused its discretionary authority by not entering a more explicit written order.
All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
The final order denying the motion will be affirmed.
FACTS AND PROCEEDINGS
Plaintiffs Valley Advocates and Dallas B. Debatin brought this lawsuit against the City of Fresno and a project proponent (collectively, defendants), alleging violations of the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.). The project involved a law firm's proposed expansion of its existing office building and the demolition of an old apartment building to expand available parking.
The trial court rejected plaintiffs' CEQA claims, which generated an appeal. In Valley Advocates v. City of Fresno (2008) 160 Cal.App.4th 1039, we reversed the trial court's denial of plaintiffs' petition for writ of mandate and ordered that a writ be issued directing the city to conduct a proper preliminary review under CEQA before considering whether to approve the demolition of the apartment building.
In May 2008, we issued the remittitur in Valley Advocates v. City of Fresno, supra, 160 Cal.App.4th 1039.
In February 2009, plaintiffs filed a notice of motion and motion for attorney fees and costs in the superior court. The motion was based on the private attorney general doctrine set forth in section 1021.5. Plaintiffs requested an award of $70,000 based on a lodestar amount of $35,000 and a multiplier of two. As support, the notice of motion referenced a declaration of plaintiffs' attorney, but no such declaration appears in the appellate record.
In May 2009, the trial court issued a tentative ruling indicating it intended to deny the motion for attorney fees. At the subsequent hearing on the motion, the trial court stated it would take the matter under submission, consider the reply filed late by plaintiffs, and issue a written order.
In early August 2009, the trial court filed an order denying the motion for attorney fees without prejudice. The order discussed some of the elements that must be satisfied to justify an award of attorney fees under section 1021.5. In addition, the order stated that any calculation of an attorney fees award must start with the number of hours reasonably spent on the merits of the action and that no verified records indicating how much time plaintiffs' attorney spent on each task were submitted with the motion. The court stated: "Without such records, any award of attorneys fees would be an abuse of discretion. The motion for attorney's fees is thus denied, without prejudice."
About two weeks later, plaintiffs filed a notice of motion and motion titled "MOTION [TO] RECONSIDER AND MODIFY ORDER DENYING PETITIONERS' MOTION FOR ATTORNEY'S FEES AND COSTS." The notice of motion indicated the motion was based on subdivisions (a) and (b) of section 473 and subdivisions (a) and (b) of section 1008. Plaintiffs' memorandum of points and authorities asserted that "[p]ursuant to ... sections 473(a) and (b), the Court may allow the amendment or correction of pleadings and may relieve a party or its attorney from a mistake or inadvertence." Plaintiffs interpreted the trial court's denial without prejudice to indicate "that upon the receipt of an appropriate amendment to the initial motion, the Court would be willing to consider the amended pleading in the light of the additional information required
Another two weeks after the notice of motion was filed, plaintiffs' attorney filed a declaration with an attachment detailing the amount of time he had spent handling the lawsuit. The declaration provided no explanation as to why the records regarding attorney time incurred had not been provided with the original motion for attorney fees.
On October 22, 2009, the trial court filed an order denying the motion to reconsider and modify the order denying plaintiffs' motion for attorney fees. The order stated the declaration of plaintiffs' attorney did not comply with section 1008, as no new or different facts, circumstances, or law were shown. It also stated: "Relief is not available under ... section 473 and in any event, no facts demonstrating mistake, surprise, inadvertence or excusable neglect are shown."
On December 18, 2009, plaintiffs filed a notice of appeal that stated they were appealing the trial court's final orders denying their motions for attorney fees and costs, entered on May 7 and October 22, 2009, and all adverse rulings made by the court in those orders.
DISCUSSION
I. Motion to Dismiss
In February 2010, defendants filed a motion to dismiss this appeal. Defendants contended that plaintiffs' December 2009 notice of appeal was untimely as to the August 2009 order denying their motion for attorney fees.
In April 2010, after an opposition and reply were filed, we issued an order stating that our ruling on the motion to dismiss the appeal would be deferred pending consideration of the appeal on the merits.
The apparent impact of the motion to dismiss the appeal was that plaintiffs' opening brief did not assert the trial court erroneously denied their motion for attorney fees. Instead, the only error raised by plaintiffs concerns the trial court's denial of their subsequent motion to reconsider and modify the order denying the motion for attorney fees.
The December 18, 2009, notice of appeal was filed within 60 days of the October 22, 2009, order denying the motion to reconsider and modify. Therefore, we conclude the appeal is timely as to that order. As a result, defendants' motion to dismiss the appeal will be denied.
II. Denial of Motion to Reconsider and Modify
A. Contentions of the Parties
Plaintiffs contend that the trial court abused its discretion by not allowing them to amend their initial motion for attorney fees to include attorney time records. Plaintiffs sought to amend the motion under subdivision (a) of section 473 and also sought relief under subdivision (b) of section 473. Based on their interpretation of the trial court's written order, plaintiffs' believe the trial court only ruled on the request made under subdivision (b). As a result, their sole theory of error is that the trial court failed to address, consider, or rule upon the grounds they presented under section 473, subdivision (a).
We do not necessarily believe that plaintiffs' interpretation of the written order is correct, but questions about how that order should be construed are not addressed here because the appeal is decided on an alternate ground.
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In response, defendants contend subdivision (a)(1) of section 473 applies only to amendments of a "pleading or proceeding," and a motion for attorney fees is neither a pleading nor a proceeding. Alternatively, defendants contend plaintiffs failed to establish sufficient grounds for relief from filing a defective motion.
B. Statutory Provision
Section 473 provides trial courts with the authority to allow amendments in certain situations and to grant relief from mistakes, inadvertence, surprise, or excusable neglect. Amendments are addressed in subdivision (a)(1) of section 473:
"The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding ... by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer."
For purposes of this appeal, we will assume that the statutory language concerning "any pleading or proceeding" is broad enough to include a motion for attorney fees. Therefore, we will further assume that the trial court had the discretionary authority to allow plaintiffs to amend their motion for attorney fees, provided the circumstances set forth in the statute were met. As a result of these assumptions, we need not decide the novel issue of statutory construction concerning whether a motion for attorney fees is a "pleading or proceeding" for purposes of subdivision (a)(1) of section 473.
C. Standard of Review and Other Principles of Appellate Review
A request to amend a pleading is addressed to the trial court's discretion. (Thompson Pacific Construction, Inc. v. City of Sunnyvale (2007) 155 Cal.App.4th 525, 544.) Consequently, an appellate court will uphold the trial court's ruling on such a request unless the appellant shows an abuse of discretion. (Ibid.) The appellant bears the burden of demonstrating that the trial court abused its discretion. (Ibid.)
Another rule of appellate review relevant to this case is the principle that appellate courts presume the trial court's order is correct. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) This presumption produces the corollary that when the appellate record is silent on a matter, the reviewing court must indulge all intendments and presumptions that support the order or judgment. (Ibid.) The intendments and presumptions indulged by the appellate court include inferring the trial court made implied findings of fact that are consistent with its order, provided such implied findings are supported by substantial evidence. (See Smith v. Adventist Health System/West (2010) 182 Cal.App.4th 729, 745 [implied finding inferred by appellate court only if supported by substantial evidence].)
D. Analysis
Plaintiffs argue the trial court abused its discretion when it failed to consider and address one of the grounds for their motion. First, plaintiffs have cited no authority for the proposition that a trial court deciding a motion is obligated to address in its written decision each ground set forth in the motion. (See Lavine v. Hospital of the Good Samaritan (1985) 169 Cal.App.3d 1019, 1026 [a statement of decision is neither required nor available upon a decision of a motion].) Thus, plaintiffs have not shown that the trial court violated its legal duty by failing to address a ground for the motion.
Second, plaintiffs' argument does not account for the rule that this court must indulge all presumptions to support the order on matters as to which the appellate record is silent. (Denham v. Superior Court, supra, 2 Cal.3d at p. 564.) We recognize that appellate courts may not infer the trial court made an implied finding when the record shows the trial court expressly declined to make it. (Reid v. Moskovitz (1989) 208 Cal.App.3d 29, 32.) In this case, however, the trial court's written order did not expressly refuse to consider subdivision (a) of section 473 as a ground for plaintiffs' request. Therefore, we will presume the trial court did consider that ground and impliedly found that (1) plaintiffs did not show their failure to present records of attorney time was the result of the type of mistake covered by that statutory provision and (2) the proposed amendment was not "in furtherance of justice." (§ 473, subd. (a)(1).)
Based on the foregoing presumption, we reject plaintiffs' argument that the trial court abused its discretion by failing to consider the portion of their motion based on subdivision (a) of section 473. Because the failure-to-consider argument was the only theory plaintiffs presented in their attempt to show reversible error, our analysis need not proceed to address other issues.
DISPOSITION
The February 2010 motion to dismiss this appeal is denied. The October 22, 2009, order denying plaintiffs' motion to reconsider and modify is affirmed.
Defendants shall recover their costs on appeal.
DAWSON, J. WE CONCUR: GOMES, Acting P.J. DETJEN, J.