Richards vs. LoanDepot, Inc.

not strike the memorandum of costs but did tax costs. [2/2/26 Minute Order (ROA #1393).] Plaintiff did not appeal from this order.

Defendants also filed a motion for attorneys’ fees and costs on 6/2/25. [ROA # 1289.] This motion sought fees incurred solely on the FEHA claim that went to trial after the nonsuit and includes a separate memorandum of costs for costs incurred solely in connection with Plaintiff’s remaining FEHA claim after nonsuit was granted on Plaintiff’s section 1102.5 whistleblower retaliation claim. [David Decl. (ROA ## 1209, 1283), Ex. N.] The court granting the motion, awarding Defendants fees but not in the total amount they requested. [2/3/26 Minute Order (ROA #1395).] Plaintiff has appealed from this order. [ROA #1405.]

In her motion to strike or tax costs basically argued that Defendants were not entitled to recovery costs under FEHA because Plaintiff’s case was not frivolous. Secondarily, she argued that even if Defendants were entitled to recover certain costs some claimed were excessive or otherwise not recoverable.

Specifically, as to the $116,772.93 in expert witness fees claimed by Defendants, Plaintiff argued:

As stated above, in the event that the Court determines that Plaintiff’s action was frivolous Defendant may be entitled to costs of some expert fees. Here, Defendant has identified numerous experts of which many were not identified as witnesses to the litigation nor do their fees appear to be reasonable. The following expert witnesses identified in line 8(b) either appeared at trial or were identified for the litigation: Janey Seymour, Judy Ho, Paul Reardon, Eva Gentile, and NERA (Elizabeth Newlon), with a total cost of $35,123.75.

However the remaining expert witnesses identified by Defendants were never even deposed nor identified as witnesses, and in some instances their charges are completely unreasonable, such as “SEDA” and Greenfield charging $25,000 and $10,000 respectively for 1 hour of work each. The witnesses that should be taxed are as follows: Investigative Research, Mark Kalish, Ellen Stein, IMS Legal, SEDA, Greenfield, Jason Koontz, and Upstream Intelligence for a total of $81,649.18. [Motion MPA (ROA #1263) at 7-8.]

Defendants’ opposition to Plaintiffs’ motion to strike or tax costs was essentially that none of the costs claimed were incurred on the FEHA claim but only on the Labor Code section 1102.5

whistleblower claim, so Defendants were entitled to recover the costs under Code of Civil Procedure sections 1032 and 1033.5 as prevailing party without a finding the claims were frivolous. [Opp. (ROA #1323) at 1-2, 5.]

Defendants did not provide any other information as to the basis for recovery of expert witness fees.

The court understood Plaintiff’s argument to be that if the court found her FEHA claims frivolous expert fees are recoverable, but she argues for a less amount than that sought. Govt. Code §12965(b). Otherwise, they are not recoverable under Code of Civil Procedure section 1033.5(b)(1).

Plaintiff’s motion to strike or tax costs and Defendants’ motion for attorneys’ fees and costs under FEHA were heard together and involved a number of moving parts and issues. As to the motion to tax, the issue of allocation was discussed but expert witness fees as costs was not specifically discussed.

The court took both motions under submission.

In its final order on the motion to tax, the court found, as argued by Defendants, that the costs sought to be recovered were largely incurred on whistleblower claims versus FEHA claims. Under this reasoning, though, the expert witness fees were not recoverable on the record presented because while they would be recoverable under FEHA were Plaintiff’s FEHA claims frivolous, they were not recoverable under Code of Civil Procedure section 1033.5.

Accordingly, the court’s order taxed the expert witness fees in their entirety - $116,772.93. [2/2/26 order at 3-4.]

Apparently, however, Defendants had served a 998 offer on Plaintiff prior to trial, which she did not accept, that was not part of the court’s record. [David Decl. (ROA #1399), ¶ 2 and Ex. A.

Legal Standard

Under Code of Civil Procedure section § 473(d), on its own motion or the motion of a party, the court may correct clerical mistakes in its judgment or order and may set aside any void judgment or order. Code Civ. Proc. § 473(d). The court also has inherent power to correct its judgment. In re Tobias (1989) 208 Cal. App. 3d 1031, 1034 (noting inherent power to correct clerical error in judgment). Highland Springs Conference & Training Center v. City of Banning (2016) 244 Cal.App.4th 267, 280.

“A clerical error in the judgment includes inadvertent errors made by the court ‘which cannot reasonably be attributed to the exercise of judicial consideration or discretion.’ [Citations.] ‘Clerical error ... is to be distinguished from judicial error which cannot be corrected by amendment. The distinction between clerical error and judicial error is “whether the error was made in rendering the judgment, or in recording the judgment rendered.” [Citation.] Any attempt by a court, under the guise of correcting clerical error, to “revise its deliberately exercised judicial discretion” is not permitted. [Citation.]’ [Citation.]

A judicial error is the deliberate result of judicial reasoning and determination.” Conservatorship of Tobias (1989) 208 Cal.App.3d 1031, 1034–1035. “ ‘The term “clerical error” covers all errors, mistakes, or omissions which are not the result of the exercise of the judicial function. If an error, mistake, or omission is the result of inadvertence, but for which a different judgment would have been rendered, the error is clerical and the judgment may be corrected ... .’ “ Id. at 1035.

Here, the court intended to enter the order it did on 2/3/26 – there was no processing error that resulted in a different order than that intended being entered.

Defendants point to a broad statement of clerical error in George v. Bekins Van & Storage Co. (1948) 83 Cal.App.2d 478: “If an error, mistake, or omission is the result of inadvertence, but for which a different judgment would have been rendered, the error is clerical and the judgment may be corrected to correspond with what it would have been but for the inadvertence.” Id. at 481. There, the trial court amended a judgment awarding the plaintiff damages against one defendant to include the statement that the remaining defendants were entitled to judgment in their favor. The court of appeal found this to be correction of a clerical error such that the deadline to file an appeal still ran from entry of the original order. [Id.]

Not only is the amendment to judgment approved a correction of a “clerical error” in George v. Bekins Van & Storage Co. very different from that proposed by Defendants here, it was expressly dismissed as dicta in Dakota Payphone, LLC v. Alcaraz (2011) 192 Cal.App.4th 493, 505–506. Dakota Payphone, LLC v. Alcaraz (2011) 192 Cal.App.4th 493, 505–506.

In short, there was no clerical error and Defendants are not entitled to relief on that basis.

The court may, nonetheless, reconsider its prior order.

Generally, a motion for reconsideration must be filed within 10 days of service on him of notice of entry of the order in question. Code Civ. Proc. § 1008(a). Defendants’ instant motion was filed within this time frame.

A motion for reconsideration made by a party must be based on new or different facts, circumstances, or law than those before the court at the time of the original ruling. Code Civ. Proc. § 1008(a). The motion must also be accompanied by an affidavit from the moving party that states: (1) what application was previously made; (2) when and to what judge; (3) what order was made; and (4) what new or different facts, circumstances or law are claimed to be shown. Code Civ. Proc. § 1008(a). A party seeking reconsideration also must provide a satisfactory explanation for the failure to produce the evidence at an earlier time. New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 213.

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 trial.” New York Times Co. v. Superior Court, supra, 135 Cal.App.4th at 212–213. 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. A party seeking reconsideration of a prior order based on “new or different facts, circumstances or law” must provide a satisfactory explanation for failing to present the information at the first hearing; i.e., a showing of reasonable diligence. Garcia v. Hejmadi (1997) 58 Cal. App. 4th 674, 690. The court cannot consider matters presented at the earlier hearing. Code Civ. Proc. §1008(f). Reconsideration cannot be granted based on claims the court misinterpreted the law in its initial ruling.

Gilberd v. AC Transit, supra, 32 Cal. App. 4th at 1500.

Apart from a parties’ motion, if the court itself “determines that there has been a change of law that warrants it to reconsider a prior order it entered, it may do so on its own motion and enter a different order.” Code Civ. Proc. § 1008(c). Further, it should be noted that the court has the inherent power to reconsider its ruling if it believes it to be in error. Le Francios v. Goel (2005) 35 Cal.4th 1094, 1108; Marriage of Barthold (2008) 158 Cal.App.4th 1301, 1307-1308.

Here, the different fact is the 998 offer of which the court was not aware.

Defendants did not bring it to the court’s attention because, as they describe it, Plaintiff “did not argue that the expert witness fees included in the Memorandum of Costs were improper under California Code of Civil Procedure Section 1033.5.” It is correct that Plaintiff did not expressly argue this. As noted above, however, the court took her to be implicitly arguing this by her statement that “in the event” the court found her claims frivolous Defendants could recover their expert witness fees.

In any event, Defendants did not think they had to justify recovery of expert witness fees in the absence FEHA’s recovery provision applying.

In the normal course, the court would have posted a tentative ruling that would have alerted Defendants to this issue, which they could have then addressed at the hearing. But this time, given the number of issues raised by the fee motion and the motion to strike or tax costs, not tentative ruling was posted. Nor did the specific issue of expert witness fees come up at the hearing.

The lack of notice to Defendants of the conclusions the court was drawing from the record is a valid basis to reconsider the order taxing all their expert witness fees. Marriage of Barthold (2008) 158 Cal.App.4th 1301, 1307-1308 (finding court has inherent authority to reconsider final, post judgment order, as well as interim order, on its own motion even when that exercise is triggered by improper motion of party).

8. 2026-1555405 Defendant Corwin James Kipp’s Motion to expunge the lis pendens SJO recorded on March 24, 2026 by Plaintiff SJO Investments LLC is Investments, granted. LLC vs. Kipp Request for Judicial Notice Plaintiff’s request for judicial notice filed in opposition of Exhibits A through E, all recorded documents relating to the real property located at 26611 Via La Jolla, San Juan Capistrano, CA 92675.

Legal Standard

Recordation of a lis pendens is permitted in any action by a “claimant” who has a “real property claim.” (CCP § 405.1)

A “real property claim” is any cause of action which, if meritorious, would affect: — title to, or the right to possession of, specific real property; or