Opinion
G057560
04-16-2020
GXP CONSULTANTS ALLIANCE, INC., Plaintiff and Appellant, v. LACY CONSTRUCTION, Defendant and Respondent.
Steven E. Paganetti for Plaintiff and Appellant. Muzi & Associates, Andrew C. Muzi and Matthew R. Seifen for Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 30-2016-00841623) OPINION Appeal from a postjudgment order of the Superior Court of Orange County, Richard Y. Lee, Judge. Affirmed. Steven E. Paganetti for Plaintiff and Appellant. Muzi & Associates, Andrew C. Muzi and Matthew R. Seifen for Defendant and Respondent.
GXP Consultants Alliance Inc. (GXP) voluntarily dismissed its action against Lacy Construction (Lacy). GXP later filed a motion seeking mandatory and discretionary relief from the voluntary dismissal based on an attorney affidavit of fault. (Code Civ. Proc., § 473, subd. (b), hereafter section 473(b).) Simply stated, GXP's attorney admitted he erroneously told GXP executives the company would not be liable for attorney fees if GXP dismissed the case before trial. The trial court denied the motion to vacate the voluntary dismissal. On appeal, GXP asserts there is case authority supporting use of the mandatory section 473(b) provisions in "events, which are the equivalent of a default or default judgment." It also maintains discretionary relief under section 473(b), is available for voluntary dismissals when there is evidence of a mistake of fact. We disagree and affirm the postjudgment order.
FACTS
GXP and Lacy's dispute centers on whether GXP was owed finder fees regarding construction projects. Approximately one year before GXP filed its lawsuit against Lacy, it threatened litigation would cost far more than paying the finder fees. GXP's counsel sent Lacy a demand letter insisting that it pay $95,900 or suffer the consequences of paying more in a lawsuit because of court costs and attorney fees. Lacy did not capitulate.
In March 2016, GXP filed a complaint for breach of a hybrid oral/written agreement, breach of a written agreement, false promise, misappropriation of trade secrets, breach of the implied covenant of good faith and fair dealing, and open account. GXP sought $100,000 in damages, punitive damages, attorney fees, and costs. After Lacy demurred, GXP filed a first amended complaint (FAC) alleging the same causes of action and attached a copy of a written agreement.
Several months later, GXP served an offer to compromise pursuant to Code of Civil Procedure section 998 (section 998 offer). It sought $64,000. The following year, in February 2017, GXP served a second section 998 offer, for $38,000. At the time, the parties were embroiled in a discovery dispute. The court granted Lacy's multiple motions to compel and ultimately sanctioned GXP $1,385.
In November 2017, Lacy prevailed on its motion for summary adjudication. The trial court dismissed four causes of action (false promise, misappropriation of trade secrets, breach of the implied covenant of good faith and fair dealing, and open account). Only the breach of contract claims remained.
The court scheduled trial for July 9, 2018. On June 28, 2018, GXP filed a request for voluntary dismissal of the FAC.
In August 2018, Lacy filed a motion for attorney fees, which the trial court granted in October 2018. It awarded Lacy $107,530.25 in attorney fees.
On December 7, 2018, the court entered judgment in favor of Lacy. A few days later, on December 14, 2018, GXP filed a motion to vacate the voluntary dismissal and the attorney fee award. GXP presented evidence its former attorney, Edward Benneville, wrongly advised that a voluntary dismissal would mean the company would not be liable for Lacy's attorney fees.
Benneville's declaration stated the following: "I gave mistaken and incorrect advise [sic] on the consequences of dismissing the [remaining claims]. I advised my client it would not be liable for attorney[] fee[] claims for the entire case if my client dismissed the case without prejudice except for those costs, which were not attorney[] fees . . . . This mistake was the result of my failure on my part to thoroughly research the case law relative to [Civil Code section] 1717." GXP's president, Ashot Petrossian, declared he authorized the voluntary dismissal based on Benneville's advice "GXP would not have any liability for attorney fees" and he would not have authorized the dismissal if he knew "there was any potential for a recovery of attorney fees against GXP."
The court considered the motion, Lacy's opposition, and GXP's reply briefing before issuing its minute order denying both mandatory and discretional relief under section 473(b). The court made the following tentative ruling, which it later adopted as its final ruling: First, it noted discretionary relief is only available where the neglect of a party or counsel is "'excusable.'" The court reasoned that when an attorney's conduct falls below the professional standard of care, "such as failing to thoroughly research the law on a subject on which the attorney gives advice," the conduct is not excusable. It stated that when the neglect is inexcusable, then relief is limited to dismissals "'procedurally equivalent to defaults.'" "Here, . . . the voluntary dismissal entered by GXP [was] not eligible for such relief, as it [was] not the procedural equivalent of a default. It was entered willingly, but with a mistaken understanding as to its later effect—which readily explains why the present motion was filed six months after the dismissal, and only after the [c]ourt awarded . . . attorney[] fees. It seems to the [c]ourt that to grant mandatory relief here would provide the 'perfect escape hatch' of which the [c]ourts of [a]ppeal have been wary."
The last section of the minute order contains the trial court's ruling after taking the matter under submission. The court noted that at the hearing, Lucy raised a new case for the first time, and the court took a brief recess to allow GXP to review it. The court stated that in addition to its tentative rulings (which was now part of the final ruling), the court reviewed a newly decided case Jackson v. Kaiser Foundation Hospitals, Inc. (2019) 32 Cal.App.5th 166 (Jackson). The court concluded this case further supported its decision to deny both mandatory and discretionary relief under section 473(b).
DISCUSSION
I. Standard of Review
The parties dispute whether section 473 relief is available to set aside a voluntary dismissal entered due to attorney negligence. "The meaning of section 473, subdivision (b) is a question of statutory interpretation we review de novo. [Citation.] Whether section 473, subdivision (b)'s requirements have been satisfied in any given case is a question we review for substantial evidence where the evidence is disputed and de novo where it is undisputed. [Citations.]" (Martin Potts & Associates, Inc. v. Corsair, LLC (2016) 244 Cal.App.4th 432, 437 (Martin).) II. Requirements of the Mandatory Relief Provision
"Prior to 1989, section 473, subdivision (b) granted a trial court the discretion to relieve a party 'from a judgment, dismissal, order, or other proceeding taken against him' if (1) that action was due to the party's or lawyer's 'mistake, inadvertence, surprise, or excusable neglect' and (2) the request for relief was 'made within a reasonable time [and] in no case exceeding six months.' [Citation.]" (Martin, supra, 244 Cal.App.4th at p. 437.)
"In 1988, our Legislature added a second basis for relief under section 473, subdivision (b). As amended further in 1992, this additional provision provides that a 'court shall, whenever an application for relief is made no more than six months after entry of judgment . . . and is accompanied by an attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default . . . . or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney's mistake, inadvertence, surprise, or neglect.' [Citation.]" (Martin, supra, 244 Cal.App.4th at p. 437.)
"Thus, section 473, subdivision (b) 'contains two distinct provisions for relief from default' [citation]—one makes relief discretionary with the court; the other makes it mandatory [citation]. The two provisions differ in several other respects: (1) the mandatory relief provision is narrower in scope insofar as it is only available for defaults, default judgments, and dismissals, while discretionary relief is available for a broader array of orders (e.g., Henderson v. Pacific Gas & Electric Co. (2010) 187 Cal.App.4th 215, 228-229 [mandatory relief not available to set aside summary judgment order]; Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 620, [listing types of dismissals falling outside the scope of the mandatory relief provision]); (2) the mandatory relief provision is broader in scope insofar as it is available for inexcusable neglect [citation.], while discretionary relief is reserved for "excusable neglect" [citations]; and (3) mandatory relief comes with a price—namely, the duty to pay 'reasonable compensatory legal fees and costs to opposing counsel or parties' [Citation.]" (Martin, supra, 244 Cal.App.4th at p. 438.)
It is well settled that attorney conduct falling below the professional standard of care is not excusable. (Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 258 (Zamora).) "'To hold otherwise would be to eliminate the express statutory requirement of excusability and effectively eviscerate the concept of attorney malpractice.' [Citation.]" (Ibid.) III. Analysis
GXP acknowledges it voluntarily dismissed the case due to the poor legal advice it received from its prior attorney, Benneville. It maintains the mandatory relief provision of section 473(b) applies to voluntary dismissals as well as defaults, default judgments, and dismissals. To support this argument, GXP relies on Zamora, supra, 28 Cal.4th 249. However, in Zamora the Supreme Court only considered whether discretionary relief was available for a voluntary dismissal. (Id. at p. 254.) GXP's reliance on this case authority is misplaced. It does not cite to any other cases holding the mandatory relief provision applies to voluntary dismissals.
We recognize the Supreme Court in Zamora briefly discussed the mandatory relief provision, quoting from Huens v. Tatum (1997) 52 Cal.App.4th 259, 264 (Huens), which Zamora disapproved of on other grounds. (Zamora, supra, 28 Cal.4th at p. 257.) In Zamora, the court concluded there was nothing about the "recent" addition of the mandatory relief provision that would change its reasoning about the broad scope of the discretionary provision. It offered the following analysis: "The purpose of [the mandatory relief] provision 'was to alleviate the hardship on parties who lose their day in court due solely to an inexcusable failure to act on the part of their attorneys.' [Citation.] Thus, the Legislature created a narrow exception to the discretionary relief provision for default judgments and dismissals. [Citation.] [¶] In enacting this exception, the Legislature, however, made no changes to the discretionary relief provision of section 473, and the legislative history indicates no intent to alter the scope of this provision." (Zamora, supra, 28 Cal.4th at p. 257, italics added.) This reasoning does not assist GXP, but rather supports the trial court's conclusion GXP's voluntary dismissal does not fall within the narrow exception of mandatory relief available for default judgments and dismissals.
In Zamora, the Supreme Court was considering the discretionary relief provision of section 473(b) and its criticism extended to the portion of Huens's analysis discussing the discretionary provision and conclusion it was limited to involuntary dismissals. (Zamora, supra, 28 Cal.4th at p. 256, citing Huens, supra, 52 Cal.App.4th at p. 264.) --------
We find instructive Jackson, supra, 32 Cal.App.5th 166. In that case, plaintiff filed a discrimination complaint alleging a hospital violated the California Fair Employment and Housing Act (FEHA) and then she looked for an attorney to represent her and help amend the complaint. (Id. at p. 169.) She found an attorney who advised her to dismiss her lawsuit without prejudice, and then refile the lawsuit with an attorney-prepared complaint. (Ibid.) Plaintiff dismissed her lawsuit and, thereafter, the attorney admitted his legal advice was based on a misunderstanding about the FEHA's statute of limitations. (Id. at p. 170.)
When plaintiff learned her claims were time barred, she filed an ex parte application for section 473(b) mandatory relief to vacate her voluntary dismissal. (Jackson, supra, 32 Cal.App.5th at p. 170.) The court denied the motion for several reasons, including that the mandatory relief provision did not apply to plaintiff's voluntary dismissal of her action. (Ibid.)
Applying basic rules of statutory construction, the Jackson court affirmed the ruling. "In contrast to the comparatively broad array of orders for which section 473(b) has long permitted discretionary relief, its mandatory relief provision was enacted in 1988 and initially applied only to default judgments caused by attorney error. [Citation.] In 1992, the Legislature approved a bill that added the term 'dismissal' to that provision. [Citation.] That section 473(b) restricts the availability of mandatory relief to only a 'default judgment or dismissal' is significant. As the court reasoned in English v. IKON Business Solutions, Inc. (2001) 94 Cal.App.4th 130 (English): 'In determining the Legislature's intent in adding the word "dismissal" to the mandatory provision of section 473(b), we must construe the word in the context of the provision in which it appears, "striving to harmonize the provision internally . . . ." [Citation.] In doing so, we are guided by the principle of statutory construction known as noscitur a sociis, i.e., it is known from its associates. [Citation.] "'In accordance with this principle of construction, a court will adopt a restrictive meaning of a listed item if acceptance of a more expansive meaning would make other items in the list unnecessary or redundant, or would otherwise make the item markedly dissimilar to the other items in the list.'"' [Citation.]" (Jackson, supra, 32 Cal.App.5th at p. 174.)
The court in Jackson noted various other appellate courts applying the principle of noscitur a sociis "have concluded the mandatory relief provision is intended to reach only those dismissals that are 'procedurally equivalent to a default.' [Citations.] '[A] default judgment is entered when a defendant fails to appear, and, under section 473, relief is afforded where the failure to appear is the fault of counsel.' [Citation.] Similarly, 'a dismissal may be entered where a plaintiff fails to appear in opposition to a dismissal motion, and relief is afforded where that failure to appear is the fault of counsel.' [Citation.]" (Jackson, supra, 32 Cal.App.5th at pp. 174-175.)
Citing again to the English decision, the court in Jackson noted dismissals are "sufficiently distinct from a default, thereby falling outside the scope of the mandatory provision" including "'(1) a dismissal following the sustaining of a demurrer without leave to amend on the ground the statute of limitations had run [citation]; (2) a voluntary dismissal pursuant to a settlement agreement [citation]; and (3) a mandatory dismissal for failure to serve a complaint within three years [citation].' [Citation.]" (Jackson, supra, 32 Cal.App.5th at p. 175, citing English, supra, 94 Cal.App.4th at p. 146.)
"Such a construction is consistent with legislative history indicating lawmakers added dismissals to the provision in response to a concern that it was 'illogical and arbitrary to allow mandatory relief for defendants when a default judgment has been entered against them due to defense counsel's mistakes and to not provide comparable relief to plaintiffs whose cases are dismissed for the same reason.' [Citations.] Moreover, such a construction prevents the statute 'from being used indiscriminately by plaintiffs' attorneys as a "perfect escape hatch" [citation] to undo dismissals of civil cases.' [Citation.]" (Jackson, supra, 32 Cal.App.5th at p. 175.) The court concluded, "Because we agree that the mandatory relief provision reaches only those dismissals that are 'procedurally equivalent to a default' [citation], we conclude mandatory relief is unavailable to undo [plaintiff]'s voluntary dismissal of her action, even assuming the dismissal was due to her attorney's erroneous advice [citation.]" (Id. at p. 176.)
In Huens, supra, 52 Cal.App.4th at page 261, plaintiff voluntarily dismissed her action after reaching a settlement with defendants. She moved to vacate the dismissal on the ground her attorney miscalculated the amount of liability insurance coverage. (Id. at p. 262.) In denying relief, the court reasoned the mandatory relief provision was inapplicable because "the section's purpose was simply 'to put plaintiffs whose cases are dismissed for failing to respond to a dismissal motion on the same footing with defendants who are defaulted for failing to respond to an action.' [Citations.]" (Id. at p. 264.) In addition, "The purpose of the statute was to alleviate the hardship on parties who lose their day in court due solely to an inexcusable failure to act on the part of their attorneys. There is no evidence the amendment was intended to be a catch-all remedy for every case of poor judgment on the part of counsel which results in dismissal." (Ibid.)
GXP argues we should extend the holding of Zamora concerning discretionary relief to mandatory relief cases, and we are not bound by the Jackson court's decision written by our colleagues in the First District, Division Three. (Citing Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) While we recognize we are not required to follow Jackson, we agree with the opinion's well-reasoned legal analysis. Moreover, we cannot ignore California Supreme Court authority declaring the Legislature, in mandating relief for dismissals caused by inexcusable attorney error, "created a narrow exception to the discretionary relief provision for default judgments and dismissals." (Zamora, supra, 28 Cal.4th at p. 257, italics added.) Under Auto Equity, we are bound to follow Zamora, and consequently, we cannot adopt GXP's theory that the mandatory relief provision should be broadly applied to remedy all dismissals arising from attorney malpractice.
GXP asserts the mandatory relief provision has similar language as used in the discretionary relief provision and, therefore, both should be broadly applied because "the law strongly favors trial and disposition on the merits." GXP offers the following legal analysis: "[I]t would be inconsistent not to include voluntary dismissals in the mandatory provision . . . and include voluntary dismissals in the discretionary part of section 473(b) especially in view of the additional requirement of a mandatory attorney affidavit of fault. Further, it would be inconsistent for the court to adopt the plain meaning of the word 'taken' in reference to a dismissal as done by the Supreme Court in Zamora and not take the plain meaning of the word 'entered' in reference to a dismissal under the mandatory provisions of section 473(b). The better position is to adopt the liberal interpretation in order to promote a trial on the merits as suggested by the Supreme Court in Zamora . . . ."
A similar argument was raised and rejected in Martin, supra, 244 Cal.App.4th at pages 440-441. In that case, plaintiff argued the court should apply the statutory maxim that the Legislature intended the same statutory construction for the two similar remedies. (Ibid., Estate of Griswold (2001) 25 Cal.4th 904, 915-916.) The court explained, "[T]his maxim of statutory construction is inapplicable[, because by] its very terms, the maxim applies when the language of two provisions is the same; as described in detail above, however, the statutory language creating the mandatory and discretionary relief provisions of section [473(b)] is significantly different. Moreover, this maxim does not apply when 'a contrary intent clearly appears.' [Citation.] Here, it does. The whole point of creating the mandatory relief provision was to make it easier to set aside a default, default judgment, or other dismissal due to attorney error, and the Legislature did so by supplementing the discretionary relief provision that required a showing of an attorney's '"'total abandonment'"' [citation] with a provision that made relief automatic upon a showing of any error, excusable or not. Construing the two provisions to mean the same thing would fly in the face of this legislative intent. (Martin, supra, 244 Cal.App.4th at pp. 440-441.) IV. Requirements of the Discretionary Relief Provision
As noted above, discretionary relief under section 473(b) is available for voluntary judgments and dismissals. (Zamora, supra, 28 Cal.4th at p. 254.) In Zamora, the trial court granted relief from a voluntary dismissal entered pursuant to a section 998 settlement offer. (Id. at pp. 260-261.) The section 998 offer contained a clerical mistake where the word "against" was erroneously substituted for the phrase "in favor of." (Id. at p. 252.) The Supreme Court affirmed the judgment. (Id. at p. 258.)
"'A party who seeks relief under section 473 on the basis of mistake or inadvertence of counsel must demonstrate that such mistake, inadvertence, or general neglect was excusable because the negligence of the attorney is imputed to his client and may not be offered by the latter as a basis for relief.' [Citation.] In determining whether the attorney's mistake or inadvertence was excusable, 'the court inquires whether "a reasonably prudent person under the same or similar circumstances" might have made the same error."' [Citation.] In other words, the discretionary relief provision of section 473 only permits relief from attorney error 'fairly imputable to the client, i.e., mistakes anyone could have made.' [Citation.] 'Conduct falling below the professional standard of care, such as failure to timely object or to properly advance an argument, is not therefore excusable. To hold otherwise would be to eliminate the express statutory requirement of excusability and effectively eviscerate the concept of attorney malpractice.' [Citation.]" (Zamora, supra, 28 Cal.4th at p. 258.)
Applying the above authority, the Supreme Court reached the following conclusions: "[T]he trial court reasonably concluded that the mistake made by Zamora's counsel was excusable. The erroneous substitution of the word 'against' for the phrase 'in favor of' is a clerical or ministerial mistake that could have been made by anybody. While counsel's failure to review the document before sending it out was imprudent, we cannot say that his imprudence rendered the mistake inexcusable under the circumstances. Indeed, appellate courts have routinely affirmed orders vacating judgments based on analogous mistakes made by an attorney or his or her staff. For example, courts have set aside judgments where: (1) The attorney mistakenly checked the 'with prejudice' box instead of the 'without prejudice' box [citation]; (2) an associate misinterpreted the instructions of the lead attorney and gave incorrect information at a hearing [citation]; and (3) the attorney's secretary lost the answer to be filed [citation]." (Zamora, supra, 28 Cal.4th at p. 259.)
Courts have not set aside judgments when the error was not clerical, but rather due to professional mistakes, i.e., inexcusable error. For example, the court in Pazderka v. Caballeros Dimas Alang, Inc. (1998) 62 Cal.App.4th 658, 671, held an attorney's failure to include a provision regarding attorney fees and costs in the offer to compromise was "not the type of mistake 'ordinarily made by a person with no special training or skill.'" (See also Roden v. Bergen Brunswig Corp. (2003) 107 Cal.App.4th 620, 634 [no discretionary relief when attorney drafted unclear settlement terms].) In Henderson v. Pacific Gas & Electric Co. (2010) 187 Cal.App.4th 215, 232, the court determined discretionary relief was not available to remedy an attorney's negligence in failing to supervise his paralegal's work and filing a late opposition to a summary judgment motion. The court determined this conduct was inexcusable and did not involve the type of error a reasonably prudent person would make. "Instead, the errors involved matters peculiar to the legal profession. A reasonably prudent person would not have expected a paralegal, even a trusted one, to prepare an opposition to a summary judgment on her own and then, upon learning that the opposition would not be available for review before filing, simply wait to see if in fact the opposition is filed. [Citation.]" (Ibid.) A party's remedy for inexcusable neglect by counsel is a malpractice action. (Carroll v. Abbott Laboratories, Inc. (1982) 32 Cal.3d 892, 898.)
"An honest mistake of law is a valid ground for relief when the legal problem posed '"is complex and debatable."' [Citations.] The controlling factors in determining whether a mistake of law is excusable are the reasonableness of the misconception and the justifiability of the failure to determine the correct law. [Citation.] '[W]here the court finds that the alleged mistake of law is the result of professional incompetence based upon erroneous advice [citation], general ignorance of the law or lack of knowledge of the rules [citation], or unjustifiable negligence in the discovery or research of the law, laxness or indifference [citations][,] normally relief will be denied.' [Citation.] There is nothing in section 473 to suggest it 'was intended to be a catch-all remedy for every case of poor judgment on the part of counsel which results in dismissal.' [Citation.]" (State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 611-612 (State Farm).)
GXP has not explained why counsel's erroneous legal advice in this case would justify discretionary relief. Without providing any supporting case authority, GXP simply asserts "the failure to go outside the confines of Civil Code section 1717 to determine the potential for attorney[] fees outside of a contract claim is a mistake any attorney could make." This argument demonstrates GXP misunderstands the factors relevant in determining whether an attorney's mistake is excusable for purposes of section 473(b) relief. First, the court must determine if a reasonably prudent person would make the same type of error. (State Farm, supra, 90 Cal.App.4th at pp. 611-612.) Here, the error related to the proper interpretation and application of Civil Code section 1717, a task requiring legal skill and knowledge. The court correctly determined this type of error relates to an issue unique to the legal profession, i.e., professional mistake.
We appreciate an attorney's mistake of law can be excusable in limited circumstances, i.e., if the issue is complex or debatable. Such was not the case here. Like the trial court, we conclude it was unreasonable for an attorney not to be familiar with 20-year-old Supreme Court precedent holding Civil Code section 1717 bars the recovery of fees incurred to defend voluntarily dismissed contract claims, but permits recovery to defend noncontract claims, so long as the contract provides for their recovery. (Santisas v. Goodin (1998) 17 Cal.4th 599, 602.) GXP does not offer any rational excuse for counsel's ignorance of the law other than professional incompetence. (See Fidelity Fed. Sav. & Loan Assn. of Glendale v. Long (1959) 175 Cal.App.2d 149, 154 [inexcusable error whether due to ignorance, negligence in research, laxness, or indifference].) As aptly noted by the trial court in this case, section 473(b) was never intended to serve as a catch-all remedy for every case dismissed due to the poor judgment of an attorney.
GXP cites to several cases permitting discretionary relief where the attorney made a mistake of fact. (See e.g., Palace Hardware Co. v. Smith (1901) 134 Cal. 381, 382 [attorney made factual mistake as to full amount of plaintiff's claim].) GXP asserts it voluntarily dismissed the action "under the mistake of fact and law there would be no potential for attorney[] fees" if it voluntarily dismissed the remaining contract actions "based upon the misinformation given by its counsel." Discretionary relief is not based on the nature of GXP's mistake, but rather, requires analysis of the "misinformation" provided by counsel. Here, Benneville understood Civil Code section 1717 barred recovery of attorney fees incurred defending GXP's contract claims, but failed to appreciate the statute permitted Lacy to recover fees relating to its tort and non-contract claims previously dismissed via summary adjudication. Benneville declared, "This mistake was the result of my failure on my part to thoroughly research the case law relative to [Civil Code section] 1717." He admitted he made a legal mistake. It cannot be said the court abused its discretion in deciding discretionary relief was unavailable to correct an inexcusable legal mistake.
DISPOSITION
We affirm the postjudgment order. Respondent shall recover its costs on appeal.
O'LEARY, P. J. WE CONCUR: BEDSWORTH, J. GOETHALS, J.