Friday, June 12, 2020

Hernandez v. FCA US LLC (Cal. Ct. App. - June 12, 2020)

Oops.  There's nothing like having your worst lawyering preserved for posterity in a published opinion.

The Knight Law Group is a firm that specializes in automotive Lemon Law cases, and it partners with Los Angeles attorney Michael Rosenstein.  Knight Law is supposed to do all the filings and the motion work, while Mr. Rosenstein is in charge of showing up for motions and at trial.  They've got a particular case involving a person named Mr. Hernandez, and on the first day of trial, the case settles for $77,500, as well as whatever attorney's fees the court feels like awarding.  (If you know these types of cases, the attorney often gets up getting lots more money than the client, and many of these drawn-out cases are fee-driven, with both sides jockeying for their respective interests.)

The parties orally recite the settlement agreement to the Court, which accepts the settlement and tells the parties it wants to set a deadline for the attorney fee motion we all know is coming, so goes ahead and sets an OSC re: dismissal for 90 days out, telling the parties that any fee motion has to be heard by then.  That date then gets confirmed in the subsequent written OSC.

Rosenstein (the lawyer at the trial) then emails the group at Knight Law and tells them:  “'The case settled for $77,500.00. The terms of the settlement were put on the record. Attorneys’ fees and costs by motion. Plaintiff is the prevailing party for purposes of our fee motion. . . . Plaintiff will file a request for dismissal of all causes of action against all Defendants upon full payment of the settlement amount as well as attorneys’ fees and costs. The Judge would not permit an OSC set further out. This was the latest date he was willing to provide.'” The email then set out the date and time of the upcoming hearing (August 16, 2018 at 8:30 a.m.) and the type of hearing (OSC re dismissal), and specified that notice was waived."

So now Rosenstein presumably thinks that Knight Law will prepare the motion for fees before the deadline, and the parties presumably might (and perhaps did) try to settle the amount in the interim.  But, surprisingly, nothing gets filed.  Maybe Knight Law made a mistake and didn't calendar the dates or figure out the deadline.  Maybe Rosenstein's email wasn't sufficiently clear.  Maybe both.  You'd think that sometime before the OSC date, Rosenstein would say to Knight:  "Hey, where's that fee motion you were preparing?  I don't see anything filed."  After all, he was at the trial, and the judge was super clear on the deadline.  But, for whatever reason, nothing like that seems to happen.  Like I said at the outset:  Not anyone's finest Lawyering Hour.

So then, at the OSC, Knight Law shows up.  At which point the judge says:  "You guys blew the fee motion deadline.  What the heck?"  You'd think that, at a minimum, at that point, everyone would immediately recognize the problem and scramble to solve it.  But no.  Over a month passes, and no one seems to do anything.

Over a month later, Hernandez files an ex parte seeking relief from her failure to file a fee motion and an extension of time to file it.  But the Court is not amused.  It says, yep, the settlement agreement did indeed contemplate a fee award -- but then you guys blew the clear deadline.  Your bad.  And while that may well have been a result of neglect, it surely wasn't "excusable" neglect, so I'm not giving you relief.  The Court adds:  "I’m not exercising my discretion [under section 473, subdivision (b)] because I don’t think, in this case, that the neglect either was excusable or that there was diligence. I would have – I may well have thought differently had you come back in right after August 16th and said, you know, ‘Oops, we made a mistake, and we are asking for ex parte relief.’ It’s – this is 33 days later; we are now on September 18th, not August 16th. [¶] Today is the OSC re dismissal. To give the court the ex parte on the day that you know the case is going to be dismissed, I don’t think that’s diligence.”

To reiterate:  Oops.  (And I'm pleased to see the Court use that exact word at the hearing as well.)

The Court of Appeal -- quite understandably -- affirms.  In a published opinion.  So now the entire world gets to read about these lawyering mistakes.