Motion for Reconsideration; Motion to Set Aside
LAW AND MOTION TENTATIVE RULINGS DATE: JUNE 15, 2026 TIME: 8:30 A.M.
No. 21CV01686
EVLESHIN v. MEYER
MOTION FOR RECONSIDERATION
MOTION TO SET ASIDE
The unopposed motions are granted. The March 30, 2026, order is vacated. The hearing on return on remittitur will be July 27, 2026. Both parties are directed to file briefs they wish the Court to consider on or before July 14, 2026. Briefs not to exceed 5 pages. The Court will not consider late-filed briefs.
I. BACKGROUND
This case involves the purchase of real property; the Evleshins and the Meyers entered into a form Residential Purchase Agreement. This agreement contained a provision that should a dispute arise between the parties, the prevailing parties to an action would be entitled to recover reasonable attorney fees. In addition, the parties, through the contract, agreed to mediate any dispute or claim which arose out of the agreement before moving on to arbitration or court proceedings.
Disputes arose and the Evleshins sued the Meyers for breach of contract and fraud. A court trial followed and the Meyers were determined to be the prevailing parties. The Meyers sought to recover their attorney fees and costs; the trial court denied this request because they initially refused to mediate with the Evleshins. The trial court found that per the terms of the agreement, the refusal to mediate barred them from recovering attorney fees even though they were the prevailing parties.
The Meyers appealed and the Sixth Appellate District reversed and determined that the Meyers’ initial refusal to mediate did not necessarily bar recovery of attorney fees under the contract. The case was then remanded with directions to make a finding on the question as to whether the Meyers retracted their initial refusal to mediate. If this Court answers this question in the affirmative, and the Meyers expressed their willingness to mediate before the action was filed, the disentitlement provision in the contract would not apply. The Sixth Appellate District directed this Court to make a finding on the question of whether the July 10, 2021 e-mail sent by the Meyers’ counsel was an offer to mediate.
On January 6, 2026, the remittitur was filed. The hearing on remittitur was set for March 26, 2026. The Court published its tentative ruling the day before the hearing, as per local rule. The tentative ruling stated: “This hearing is continued to April 23, 2026. At least one of the parties attempted to file a supplemental briefing, as previously permitted by the Court. However, this document was not properly formatted and was not filed. Future pleadings must be filed on or before April 16, 2026, for the Court’s consideration.”
Looking for case law or statutes not cited here? Search published authorities
Examples: “Why did the court rule this way?” · “What were the procedural grounds?” · “Is appearance required?”
LAW AND MOTION TENTATIVE RULINGS DATE: JUNE 15, 2026 TIME: 8:30 A.M.
At the March 26, 2026, hearing, only counsel for the Meyers, Mr. Harmon, appeared. The Minute Order reflects that Mr. Harmon presented the Court with a memo at the hearing. The Court then granted the previously denied attorney fees motion and awarded fees in the amount of $111,324.00. On March 30, 2026, the Court signed the order declaring that the Meyers were not barred from recovering attorney fees based on any alleged pre-suit refusal to mediate and awarded the requested attorney fees; the order was filed April 2, 2026.
On April 13, 2026, the Evleshins filed this motion for reconsideration pursuant to Code of Civil Procedure section 1008, subdivision (a), asserting new or different facts discovered since the Court’s order: the order failed to answer questions of law and fact as required by the appellate court, the Court accepted a memorandum that was never served on the Evleshins, that this memorandum was in violation of the Court’s prior order, and that the Evleshins failed to appear at the March 26, 2026 hearing because of neglect or inadvertence.
On April 20, 2026, they filed a motion to vacate the judgment pursuant to Code of Civil Procedure sections 663, 473(b), 1008 and on equitable and due process grounds.
In support of their motions, the Evleshins filed declarations from Sequoia and George Evleshin who state that the Meyers filed a memorandum in support of a full award of attorney fees on March 24, 2026, one day after the deadline the Court had imposed for filing. The Evleshins assert they were never served with this document, and no proof of service was filed with the Court. (Decl. of Evleshin at ¶ 4.). Therefore, they did not have an opportunity to review and respond to Meyers’ briefing before the Court issued its ruling.
There is no opposition.
II. LEGAL STANDARDS
Within 10 days after service upon the party of written notice of entry of the order (extended for service) and based upon new or different facts, circumstances, or law, a party may make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. (Code Civ. Proc., §§ 1008, 1013.)
The legislative intent was to restrict motions for reconsideration to circumstances where a party offers the court some fact or circumstance not previously considered, and some valid reason for not offering it earlier. (Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1500.) The burden under section 1008 “is comparable to that of a party seeking a new trial on the ground of newly discovered evidence: the information must be such that the moving party could not, with reasonable diligence, have discovered or produced it at [the hearing].” (New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 212-213.) A party seeking reconsideration based on new or different facts, circumstances, or law must provide a satisfactory explanation for not presenting it earlier. (Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 690.)
LAW AND MOTION TENTATIVE RULINGS DATE: JUNE 15, 2026 TIME: 8:30 A.M.
III. DISCUSSION
First, the Meyers have not opposed these motions which this Court construes as a concession on the merits. (D.I. Chadbourne, Inc. v. Superior Court (1964) 60 Cal.2d 723, 728, fn. 4 [when a nonmoving party fails to oppose a ground for a motion “it is assumed that [nonmoving party] concedes” that ground].)
“The court may, upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, and may, on motion of either party after notice to the other party, set aside any void judgment or order.” (§ 473, subd. (d).) This section only allows a court to correct clerical errors in orders and judgments, not to rectify judicial errors. (Blake v. Municipal Court for Northern Judicial Dist. (1956) 144 Cal.App.2d 131, 135; Estate of Careaga (1964) 61 Cal.2d 471, 474 [clerical errors do not include court’s failure to correctly interpret law or apply facts]; McLaughlin v. Superior Court (1954) 128 Cal.App.2d 62, 66 [court has no power, having once made its decision after regular submission, to amend judgment or order for judicial error].)
To correct judicial error, the court is limited to statutory means, such as reconsideration under section 1008, which is the exclusive means for modifying, amending, or revoking an order of the court. (Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1498-1499.) A party cannot use section 473 to circumvent the jurisdictional requirements of section 1008. Where the request is to vacate a prior order of the court, the requirements of section 1008 must be met. (Id. at p. 1501.)
Here, the Court’s tentative ruling on the return on remittitur was to continue the March 26, 2026, hearing to April 23, 2026, and gave the parties until April 16, 2026 to file briefs in connection with the future hearing. Counsel for the Meyers appeared on March 26, 2026, and provided the Court with a “memorandum” for review. The Evleshins have shown this document was not served on them and neither the Evleshins nor their counsel appeared at the hearing. The Court then issued a new ruling from the bench granting the motion for attorney fees. This ruling was made without input from the Evleshins and without their ability to review and respond to the new briefing. “Notice and a chance to be heard are essential components to the trial court's jurisdiction and for due process.” (Tokio Marine & Fire Ins. Corp. v. Western Pacific Roofing Corp. (2000) 75 Cal.App.4th 110, 121.)
The Evleshins have shown sufficient new circumstances to warrant reconsideration. The Court should have required the Meyers to serve the briefing on the Evleshins and provide them an opportunity to respond before issuing its order on the prevailing party attorney fees. Therefore, this motion for reconsideration is granted, and the Court’s Order and Judgment on Remand Re: Prevailing Party Attorney’s Fees of March 30, 2026 is vacated. The hearing on return on remittitur will be July 27, 2026. Both parties are directed to file briefs they wish the
LAW AND MOTION TENTATIVE RULINGS DATE: JUNE 15, 2026 TIME: 8:30 A.M.
Court to consider on or before July 14, 2026. Briefs not to exceed 5 pages. The Court will not consider late-filed briefs.