California Court of Appeal Apr 26, 2016 No. D068357Unpublished
Filed 4/26/16 Campman v. Neborsky CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
LINDA CAMPMAN, D068357
Plaintiff and Respondent,
v. (Super. Ct. No. 37-2014-00009502- CU-HR-CTL) JOHN NEBORSKY,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Tamila E.
Ipema, Judge. Affirmed.
John Neborsky, in pro. per., for Defendant and Appellant.
Elliott N. Kanter for Plaintiff and Respondent.
By way of an order granting plaintiff and respondent Linda Campman's motion for
reconsideration, the trial court awarded her $4,000 in attorney fees. On appeal, defendant
and appellant John Neborsky argues that Campman failed to demonstrate that her motion
was supported by any new fact, circumstance or law. We affirm.
Although a postjudgment order awarding attorney fees is separately appealable, on
appeal an appellant must show that any error caused harm. Here, any error the trial court
committed in granting the motion for reconsideration and awarding fees was harmless,
because, as we explain, the order merely corrected the trial court's earlier error.
Here, Neborsky contends that Campman failed to show that she acted with due
diligence in only discovering the Kaufman case after her initial motion for attorney fees
was denied. However, true as that may be,1 it is of no moment in light of the fact that we
agree with the court's analysis in Kaufman. By its express terms, the recovery of attorney
fees as costs is governed by California Rules of Court, rule 3.1702, which only requires a
motion; all other costs are governed by the memorandum of costs procedure set forth in
1 The opinion in Kaufman was ordered published on August 21, 2014, before Campman made her motion for attorney fees and before Neborsky argued, and the trial court agreed, that a memorandum of costs was required. As Neborsky contends on appeal, Campman did not make an entirely persuasive case that counsel exercised due diligence in only discovering the holding in Kaufman after the trial court denied her motion. (See Pazderka v. Caballeros Dimas Alang, Inc. (1998) 62 Cal.App.4th 658, 670 [counsel's mistake of law not a new fact, circumstance or law supporting motion for reconsideration].) Such diligence is required for relief under Code of Civil Procedure, section 1008, subdivision (a). (See Garcia v. Hejman (1997) 58 Cal.App.4th 674, 688.) 4
California Rules of Court, rule 3.1700. (See Kaufman, supra, 229 Cal.App.4th at pp. 8-
10.) Requiring both a motion and a memorandum of costs is not only inconsistent with
the express terms of the rules, but it also would be impractical and unduly burdensome on
litigants. (Ibid.) Thus, in initially denying Campman's otherwise meritorious motion for
attorney fees, the trial court erred. (Ibid.)
Because the trial court's initial order denying attorney fees was erroneous and
subject to attack on appeal, Neborsky was in no sense prejudiced by the trial court's order
granting reconsideration and correcting its error. (See Paramount Petroleum Corp. v.
Superior Court, supra, 227 Cal.App.4th at p. 238 [procedural error in granting motion to
reconsider affirmed where initial order erroneous].) Because under no set of
circumstances was Neborsky prejudiced by the trial court's order, we are required to
affirm it. (Ibid.)
DISPOSITION
The order granting reconsideration is affirmed. Campman to recover her costs on
appeal. BENKE, J.
WE CONCUR:
McCONNELL, P. J.
AARON, J.
5
AI Brief
AI-generated · verify before citing
Holding. The court affirmed the attorney fee award, holding that any procedural error in the trial court's grant of a motion for reconsideration was harmless because the initial denial of fees was legally erroneous.
Issues
Whether the trial court erred in granting a motion for reconsideration regarding an attorney fee award.
Whether the appellant demonstrated prejudice from the trial court's procedural ruling.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“any error the trial court committed in granting the motion for reconsideration and awarding fees was harmless, because, as we explain, the order merely corrected the trial court's earlier error.”
“Because under no set of circumstances was Neborsky prejudiced by the trial court's order, we are required to affirm it.”