Filed 9/28/10 Corona v. Stull CA3
NOT
TO BE PUBLISHED
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opinion has not been certified for publication or ordered published for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.
IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE
DISTRICT
(San
Joaquin)
----
ESTHER CORONA et al.,
Plaintiffs and Respondents,
v.
JOHN DONALD STULL,
Defendant and Appellant.
C062281
(Super.
Ct. No. CV023005)
After recovering
over $6 million in a wrongful death and
personal injury action against a defendant who had been convicted of drunk
driving, plaintiffs moved for attorney fees pursuant to Code of Civil Procedure
section 1021.4,[1]
seeking 40 percent of the judgment as fees. The trial court denied the motion; it found
plaintiffs were entitled to attorney fees under section 1021.4, but the motion
set forth no evidence on which to base the amount of fees requested. There was no declaration setting forth the
hours spent, the attorneys' usual hourly rate or the nature of the contingency
fee agreement. Plaintiffs then moved for
reconsideration, submitting declarations of counsel setting forth an estimate
of hours spent on the case and hourly fees.
They claimed the trial court's determination they were entitled to
attorney fees was a new circumstance and this compilation of the lodestar
amount was new evidence. Defendant
appeals from the trial court's order granting the motion for reconsideration
and awarding attorney fees of $155,000.
We reverse. Compilation of attorney hours and fees, from
evidence completely within the possession and control of plaintiffs' counsel,
is not new evidence under section 1008 and plaintiffs failed to show it could
not have been provided to the court earlier.
Neither a motion for reconsideration under section 1008 nor a motion for relief from mistake under
section 473 is intended to permit a â€
| Description | After recovering over $6 million in a wrongful death and personal injury action against a defendant who had been convicted of drunk driving, plaintiffs moved for attorney fees pursuant to Code of Civil Procedure section 1021.4,[1] seeking 40 percent of the judgment as fees. The trial court denied the motion; it found plaintiffs were entitled to attorney fees under section 1021.4, but the motion set forth no evidence on which to base the amount of fees requested. There was no declaration setting forth the hours spent, the attorneys' usual hourly rate or the nature of the contingency fee agreement. Plaintiffs then moved for reconsideration, submitting declarations of counsel setting forth an estimate of hours spent on the case and hourly fees. They claimed the trial court's determination they were entitled to attorney fees was a new circumstance and this compilation of the lodestar amount was new evidence. Defendant appeals from the trial court's order granting the motion for reconsideration and awarding attorney fees of $155,000. We reverse. Compilation of attorney hours and fees, from evidence completely within the possession and control of plaintiffs' counsel, is not new evidence under section 1008 and plaintiffs failed to show it could not have been provided to the court earlier. Neither a motion for reconsideration under section 1008 nor a motion for relief from mistake under section 473 is intended to permit a †|
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