Jeffery R. Werner v. Evolve Media, LLC. — Entry #128: MINUTE ORDER DENYING MOTION FOR RELIEF FROM JUDGMENTS AND ORDERS 115 (IN CHAMBERS) by Judge Virginia A

Case 2:18-cv-07188-VAP-SK Document 128 Filed 11/10/20 Page 1 of 9 Page ID #:1611


                                    UNITED STATES DISTRICT COURT
                                   CENTRAL DISTRICT OF CALIFORNIA
                                     CIVIL MINUTES – GENERAL

   Case No.      LACV 18-07188-VAP-SKx                                Date November 10, 2020
   Title Jeffrey R. Werner v. Evolve Media, LLC, et al.


   Present: The Honorable      VIRGINIA A. PHILLIPS, UNITED STATES DISTRICT JUDGE


                 Christine Chung                                       Not Reported
                  Deputy Clerk                                         Court Reporter


       Attorney(s) Present for Plaintiff(s):                Attorney(s) Present for Defendant(s):
                  None Present                                         None Present


   Proceedings:      MINUTE ORDER DENYING MOTION FOR RELIEF FROM JUDGMENTS AND
                     ORDERS [115] (IN CHAMBERS)


          The Court has received and considered Defendants Evolve Media, LLC, Craveonline
  LLC, and Totallyher Media LLC’s (“Defendants”) “Motion for Relief from Judgments and
  Orders” (“Motion”), filed on October 19, 2020. The Court finds the Motion appropriate for
  resolution without oral argument pursuant to Local Rule 7-15 and hereby VACATES the hearing
  set on November 16, 2020 at 2:00 p.m. Having considered the papers filed in support of, and in
  opposition to, the Motion, the Court DENIES the Motion for the following reasons.

  I.      Background
          On August 16, 2018, Plaintiff Jeffery Werner (“Plaintiff”) filed a Complaint against
  Defendants for damages and injunctive relief from copyright infringement. After engaging in
  settlement negotiations, on August 30, 2019, Plaintiff filed a First Amended Complaint (“FAC”),
  again alleging copyright infringement in violation of 17 U.S.C. § 101, et seq. On March 9, 2020,
  Plaintiff filed a Motion for Summary Judgment, which Defendants did not oppose.

         The Court granted summary judgment for Plaintiff on April 28, 2020, finding Defendants
  committed four acts of copyright infringement of photographs owned by Plaintiff by authorizing
  unlicensed display of the images on Defendants’ websites. The four photographs are: (1) the
  Giant George Image; (2) the Buffalo Whisperer Image; (3) the Mr. Stubbs Image; and (4) the
  Wiley Coyote Image. The Court held Plaintiff was “entitled to pursue an award of statutory
  damages and attorneys’ fees in connection with the infringements of the Buffalo Whisperer,

   Page 1 of 9                           CIVIL MINUTES – GENERAL           Initials of Deputy Clerk: cch


Case 2:18-cv-07188-VAP-SK Document 128 Filed 11/10/20 Page 2 of 9 Page ID #:1612


  Wiley Coyote, Mr. Stubbs, and Giant George Image.” (See Dkt. No. 69). The Court entered a
  Judgment in favor of Plaintiff and against Defendants.

          On May 12, 2020, Plaintiff filed a motion for attorneys’ fees, seeking $50,236 in fees and
  $915.03 in litigation costs. On May 25, 2020, Plaintiff filed a motion for damages. Plaintiff
  sought a total of $200,000 in statutory damages under the Copyright Act for Defendants’
  infringement of his four copyrighted images: $10,000 in statutory damages each for infringement
  of the Wiley Coyote and Buffalo Whisperer Images, and $90,000 in statutory damages each for
  infringement of the Mr. Stubbs and Giant George Images. Defendants did not oppose the motion
  for attorneys’ fees or the motion for damages. On June 22, 2020, the Court granted the motion
  for attorneys’ fees and the motion for damages.

          The Court entered an Amended Judgment on July 30, 2020, which reflected the damages
  and attorneys’ fees awarded to Plaintiff.

          Following entry of the Amended Judgment, Plaintiff has taken action to enforce and
  collect upon it. On July 30, 2020, Plaintiff requested issuance of three writs of execution and the
  Clerk of Court entered the three writs requested on July 31, 2020. On August 3, 2020, Plaintiff
  requested an order granting a special appointment to serve process, which the Court granted on
  August 5, 2020. The United States Marshals Service served bank levies on August 18, 2020 and
  August 19, 2020 on Defendants’ accounts at Comerica Bank. Those bank levies were returned
  executed on September 18, 2020. On October 13, 2020, Plaintiff requested issuance of three
  additional writs of execution, which the Clerk of Court issued on October 26, 2020.

          Pertinent here, on January 21, 2020, Defendants filed requests to substitute their counsel
  Jeffrey B. Valle with Ricardo Alan Chavez (hereinafter “Chavez”). The Court granted the
  substitution of counsel on February 6, 2020 and Chavez became counsel of record for
  Defendants. On May 15, 2020, Chavez filed a notice of withdrawal of counsel. On May 18,
  2020, the Clerk of Court identified several deficiencies with Chavez’s notice and during a
  telephonic pretrial conference on May 18, 2020, the Court advised Chavez that his notice was
  defective procedurally and he must file the proper documents to be relieved as counsel. Chavez
  refiled a notice of withdrawal of counsel on May 29, 2020. On June 1, 2020, the Clerk of Court
  identified a deficiency in Chavez’s filing. On August 17, 2020, Chavez filed a request for
  approval of substitution or withdrawal of counsel. On August 18, 2020, the Clerk of Court
  identified several deficiencies in Chavez’s filing. On August 20, 2020, the Court ordered
  stricken Chavez’s August 17, 2020 filing and ordered him to correct the deficiencies identified
  by the Clerk of Court. On August 28, 2020, Chavez filed a “request to withdraw of [sic]
  attorney.” On September 2, 2020, the Clerk of Court identified a deficiency in Chavez’s filing,
  namely that he failed to comply with Local Rule 5-4.4, and the Court ordered the filing stricken.
  On September 21, 2020, Chavez filed a “request to withdraw attorney,” which the Court granted
  on September 24, 2020, approving the substitution of counsel Shanen Reid Prout for Defendant
  Evolve Media, LLC. On October 2, 2020, Chavez filed a request to withdraw as counsel for
  Defendants Craveonline, LLC and Totallyher Media, LLC, which the Court granted on October
  5, 2020, approving the substitution of counsel Shanen Reid Prout.


   Page 2 of 9                         CIVIL MINUTES – GENERAL              Initials of Deputy Clerk: cch


Case 2:18-cv-07188-VAP-SK Document 128 Filed 11/10/20 Page 3 of 9 Page ID #:1613


         Defendants filed the instant Motion on October 19, 2020. In support of the Motion,
  Defendants filed the Declarations of Aaron Broder, Richard Chavez, and Shanen Prout. Plaintiff
  filed Opposition to the Motion and the Declaration of Ryan E. Carreon on October 26, 2020.
  Defendants filed a Reply and another Declaration of Aaron Broder on November 2, 2020.

  II.      Discussion
           In the Motion, Defendants move the Court to: set aside its orders granting Plaintiff’s
  motion for summary judgment, Plaintiff’s motion for damages, and Plaintiff’s motion for
  attorneys’ fees; set aside the Judgment and Amended Judgment; and recall and quash any writs of
  execution issued in this action. (See Mot.) According to Defendants, their previous counsel
  Chavez acted with gross and extreme carelessness and effectively abandoned them in this
  litigation, rising to the level of excusable neglect and creating an extraordinary circumstance that
  prevented them from defending themselves in this action. (Id.) Defendants argue the Court
  should consider their evidence to rebut the amount of Plaintiff’s damages, which Defendants
  contend were calculated improperly and inflated grossly. (Id.; Reply at 18 (“Plaintiff sought
  entry of an amount of damages based on an incomplete record and grossly one-sided evidence,
  while ignoring its own controverting [sic] evidence that it produced to Defendants in discovery.”)
  (emphasis in original).)

         In Opposition, Plaintiff argues Defendants are not entitled to the relief requested because
  they engaged in culpable conduct and they lack a meritorious defense. (See Opp’n.)

         Defendants bring the Motion pursuant to Federal Rules of Civil Procedure 60(b)(1) and
  60(b)(6) (hereinafter “Rule 60(b)(1)” and “Rule 60(b)(6)”). The Court discusses each in turn.1


        1
          As Defendants point out in the Reply, Plaintiff’s Opposition relies on caselaw
        interpreting Rule 60(b)(1) and Rule 60(b)(6) in the context of entry of a default
        judgment that a defendant later seeks to set aside. Although Defendants did not oppose
        the motions for summary judgment, damages, and attorneys’ fees, the Court did not
        enter a default judgment against Defendants. Accordingly, much of the caselaw set
        forth in Plaintiff’s Opposition is distinguishable. The Court will not address, for
        example, the three-factor test set forth in TCI Grp. Life Ins. Plan v. Knoebber, 244 F.3d
        691, 696 (9th Cir. 2001) because that test for demonstrating excusable neglect pursuant
        to Rule 60(b)(1) applies only in the context of a defendant moving to set aside a default
        judgment. See Million (Far E.) Ltd. v. Lincoln Provisions Inc. USA, 581 F. App’x 679,
        681 (9th Cir. 2014) (“To show excusable neglect under Rule 60(b)(1), a court considers:
        (a) whether the defendant has a meritorious defense; (b) whether the defendant engaged
        in culpable conduct that led to the default; and (c) whether reopening the default
        judgment would prejudice the plaintiff.”). The Court discusses the applicable legal
        standard below. As the legal tests to determine whether a default judgment and an
        ordinary judgment should be set aside under Rule 60(b)(1) and Rule 60(b)(6) overlap
        and interrelate, however, the Court will consider Plaintiff’s arguments raised in the
        Opposition as relevant to the analysis.

   Page 3 of 9                           CIVIL MINUTES – GENERAL             Initials of Deputy Clerk: cch


Case 2:18-cv-07188-VAP-SK Document 128 Filed 11/10/20 Page 4 of 9 Page ID #:1614


         A.     Federal Rule of Civil Procedure 60(b)(1)
         Rule 60(b)(1) authorizes a court to relieve a party from an order or judgment, inter alia,
  where the judgment is a result of the party’s mistake, inadvertence, surprise, or excusable
  neglect. See Fed. R. Civ. P. 60(b)(1). A party seeking relief under Rule 60(b)(1) must file a
  noticed motion within a “reasonable time” not to exceed one year “after the entry of the
  judgment.” Fed. R. Civ. P. 60(c)(1).

         “To determine whether a party’s failure to meet a deadline constitutes ‘excusable
  neglect,’ courts must apply a four-factor equitable test, examining: (1) the danger of prejudice to
  the opposing party; (2) the length of the delay and its potential impact on the proceedings; (3) the
  reason for the delay; and (4) whether the movant acted in good faith.” Pioneer Inv. Servs. Co. v.
  Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 395 (1993); Ahanchian v. Xenon Pictures, Inc.,
  624 F.3d 1253, 1261 (9th Cir. 2010). “The proper application of Rule 60(b) strikes a balance
  between serving the ends of justice and preserving the finality of judgments.” Stewart v.
  Wachowski, 574 F. Supp. 2d 1074, 1118 (C.D. Cal. 2005).

                 1.      Danger of Prejudice to Opposing Party
          “To be prejudicial, the setting aside of a judgment must result in greater harm than simply
  delaying the resolution of the case.” TCI Group Life Ins. Plan v. Knoebber, 244 F.3d 691, 701
  (9th Cir. 2001), overruled on other grounds by Egelhoff v. Egelhoff ex rel. Breiner, 532 U.S. 141
  (2001). “[T]o be considered prejudicial, ‘the delay must result in tangible harm such as loss of
  evidence, increased difficulties of discovery, or greater opportunity for fraud or collusion.’” Id.
  (quoting Thompson v. Am. Home Assur. Co., 95 F.3d 429, 433-34 (6th Cir. 1996)).

          Defendants argue Plaintiff would suffer no harm if the Motion is granted. (Mot. at 12-
  13.) According to Defendants, vacating the judgment in this case would restore the parties “to an
  even footing in the litigation” and “[r]esetting the present case for trial – at least on the issue of
  damages and attorney’s fees – does not pose a threat of serious delay that would result in the loss
  of evidence, increased difficulties of discovery, or greater opportunity for fraud or collusion by
  the parties.” (Id. at 13.)

          In Opposition, Plaintiff argues he would suffer undue prejudice if the Motion is granted.
  (See Opp’n at 13-14.) Plaintiff explains “[i]f the relief sought is granted, [Plaintiff’s] preparation
  and filing of the summary judgment motion, damages and fee motions, and post judgment
  collection efforts, will have been for naught.” (Id. at 13.) Plaintiff has levied over $70,000 from
  Defendants’ bank accounts and “would be forced to return those monies with no assurance that
  [Defendants] will be able to repay it if [Plaintiff] were to prevail in further proceedings.” (Id.)
  Plaintiff argues he has not sought an award of attorneys’ fees and costs relating to the preparation
  and filing of his damages motion, his judgment enforcement efforts, and the preparation and
  filing of the Opposition to the instant Motion; he contends the Court, if inclined to grant the
  Motion, should award Plaintiff his reasonable fees and costs incurred for these tasks to restore
  the status quo. (Id. at 13-14.)

         This is not a case where Plaintiff obtained a “quick victory” that can easily be reversed
  without Plaintiff suffering undue prejudice. Cf. Bateman v. U.S. Postal Serv., 231 F.3d 1220,
  1224-1225 (9th Cir. 2000) (“The prejudice to the Postal Service was minimal. It would have lost

   Page 4 of 9                          CIVIL MINUTES – GENERAL               Initials of Deputy Clerk: cch


Case 2:18-cv-07188-VAP-SK Document 128 Filed 11/10/20 Page 5 of 9 Page ID #:1615


  a quick victory and, should it ultimately have lost the summary judgment motion on the merits,
  would have had to reschedule the trial date. But such prejudice is insufficient to justify denial of
  relief under Rule 60(b)(1).”). The Court is persuaded by Plaintiff’s argument that he has
  expended considerable time and effort and incurred attorneys’ fees and litigation costs to obtain
  the Judgment and Amended Judgment entered in this case as well as to enforce the Amended
  Judgment against Defendants. If the Court grants the Motion, Plaintiff would suffer “tangible
  harm,” Thompson, 95 F.3d at 433-34, because he incurred those costs and fees and would be
  forced to return the funds he levied from Defendants’ bank accounts pursuant to the Amended
  Judgment. Accordingly, the first Pioneer factor weighs against the finding of excusable neglect.

                   2.     Length of Delay and Potential Impact on Proceedings
           As stated supra, motions brought pursuant to Rule 60(b)(1) must be made within a
  reasonable time not to exceed one year after entry of a judgment. Fed. R. Civ. P. 60(c). The
  Ninth Circuit has instructed where a party allows the thirty-day appeal period to expire before
  filing a Rule 60(b) motion, “the interest in finality must be given great weight.” Ashford v.
  Stewart, 657 F.2d 1053, 1055 (9th Cir. 1981).

         In the Motion, Defendants argue they “have asserted the present motion well within Rule
  60(c) and what case law authorities have held to be a ‘reasonable time.’” (Mot. at 13.)

        As stated supra, Defendants filed the instant Motion on October 19, 2020; the original
  Judgment was entered on April 28, 2020; and the Amended Judgment was entered on July 30,
  2020. The Motion was filed six months after the Judgment was entered and three months after
  the Amended Judgment was entered, within the one-year deadline imposed by Rule 60(c).

           Defendants, however, filed the Motion five months after the appeal period had lapsed
  regarding the original Judgment and two months after the appeal period had lapsed regarding the
  Amended Judgment, pursuant to Federal Rule of Appellate Procedure 4(a)(1)(A). When a party
  makes a voluntary, conscious decision not to appeal a matter, such “calculated, deliberate choices
  are not to be relieved from under [Rule 60(b)].” Plotkin v. Pac. Tel. and Tel. Co., 688 F.2d 1291,
  1293 (9th Cir. 1982) (citing Ackermann v. United States, 340 U.S. 193, 198 (1950)).
  Accordingly, the interest in finality of the judgment in this case is strong in light of the six-month
  or three-month delay in filing the Motion. See, e.g., Plotkin, 688 F.2d at 1293 n.2 (agreeing with
  district court’s conclusion that Rule 60(b) motion was not filed within a reasonable time where it
  was filed 48 days after entry of the order and 18 days after the expiration of the time to appeal
  the order).

          As discussed supra, Plaintiff has begun to enforce the Amended Judgment and has
  already levied a significant sum toward the satisfaction of Defendants’ obligations pursuant to
  that Amended Judgment. Defendants have brought the Motion months after Plaintiff initiated his
  collection efforts. If the Court grants the Motion, the potential impact on the proceedings is
  significant and to Plaintiff’s detriment.

          As this matter involves a period of delay that exceeds the appeal period and the Motion
  was filed after Plaintiff’s collection efforts had been underway for months, the Court concludes


   Page 5 of 9                          CIVIL MINUTES – GENERAL              Initials of Deputy Clerk: cch


Case 2:18-cv-07188-VAP-SK Document 128 Filed 11/10/20 Page 6 of 9 Page ID #:1616


  the length of Defendants’ delay in bringing the Motion is unreasonable. This Pioneer factor
  weighs against the finding of excusable neglect.

                3.      Reason for Delay
         In evaluating the adequacy of the reason for the delay, the Court must take into account
  whether the moving party was in reasonable control of the circumstances that caused the delay.
  See Marx v. Loral Corp., 87 F.3d 1049, 1054 (9th Cir. 1996), overruled on other grounds by
  Lacey v. Maricopa Cnty., 693 F.3d 896 (9th Cir. 2012).

          Defendants argue their “present counsel of record spent several months investigating the
  record in this case and collecting evidence to support this Motion” and filed the Motion “within a
  couple of months after the time to appeal expired.” (Mot. at 14.) Defendants’ current counsel
  Shanen Prout (“Prout”) explains in his Declaration that after he was retained, he “spent dozens of
  hours conducting activities to assess the Motion and grounds for relief,” including interviewing
  Aaron Broder (hereinafter “Broder”), Defendants’ Chief Executive Officer, and Chavez,
  reviewing the Court’s docket in this case, and conducting legal research. (Prout Decl. ¶ 2.)
  Defendants also claim, “as corporate defendants, [they] could not represent themselves in the
  action once [] Chavez abandoned them and they were thus unable to seek immediate relief from
  this Court until they could retain new counsel.” (Id.)

          Based on the record before the Court, Prout was retained on June 4, 2020. (See Prout
  Decl. ¶ 2; Broder Decl. ¶ 21.) Originally, Plaintiff’s motion for attorneys’ fees was set for
  hearing on June 15, 2020 and his motion for damages was set for hearing on June 22, 2020.
  Based on those hearing dates, pursuant to Local Rule 7-9, Defendants’ opposition to the motion
  for attorneys’ fees was due to be filed by May 25, 2020 and their opposition to the motion for
  damages was due to be filed by June 1, 2020. Prout would have been unable to file timely
  opposition briefs to either motion, but he had been retained before the Court took both motions
  off calendar and under submission on June 10, 2020 and June 17, 2020, respectively, and weeks
  before the Court ruled on both motions on June 22, 2020. Moreover, Prout knew about the
  Court’s rulings on June 22, 2020 and sent copies of the Court’s Orders to Defendants. (Broder
  Decl. ¶ 22.) Similarly, Prout had been retained for nearly two months when the Court entered the
  Amended Judgment on July 30, 2020. Based on this record, the Court is not persuaded by
  Defendants’ argument that, because they were abandoned by Chavez, they could not file the
  instant Motion until October 19, 2020.

          Furthermore, while the Court agrees it takes some time for new counsel to become
  familiar with the issues involved in a new case, the Court does not find Defendants’ explanation
  for the delay persuasive given the activity in this litigation between June 4, 2020, when Prout
  was retained, and October 19, 2020, when the instant Motion was filed. The Court
  acknowledges, as discussed supra, after several unsuccessful attempts, Chavez did not formally
  withdraw from representing Defendants in this case until September 24, 2020 and October 5,
  2020 and Prout substituted in as Defendants’ counsel on those dates. The record is clear,
  however, Prout was retained by Defendants on June 4, 2020 and began working on this litigation
  on that date. Moreover, there is no evidence to show why Prout could not have prepared the
  substitution of counsel form, as Chavez was unsuccessful in filing the required documents on
  several occasions. Upon being retained, there was nothing preventing Prout from substituting in

   Page 6 of 9                        CIVIL MINUTES – GENERAL              Initials of Deputy Clerk: cch


Case 2:18-cv-07188-VAP-SK Document 128 Filed 11/10/20 Page 7 of 9 Page ID #:1617


  as counsel for Defendants and immediately moving to set aside the Court’s order on Plaintiff’s
  motion for summary judgment or seeking an extension of time to file opposition to Plaintiff’s
  motions for attorneys’ fees and for damages.

          Defendants attempt to pin the blame on Chavez for failing to oppose the motions for
  summary judgment, for attorneys’ fees, and for damages. Defendants’ evidence, however,
  demonstrates a breakdown in the attorney-client relationship between Chavez and Broder by at
  latest May 14, 2020. (See Chavez Decl. ¶ 10 (“In early May, Mr. Broder and I discussed my
  desire to withdraw as counsel for Defendants in this action.”), Exh. A; Broder Decl. ¶ 14 (“In
  April, Mr. Chavez and I discussed his potential withdrawal as counsel for Defendants in this
  action.”).) Moreover, according to Chavez, he did not oppose Plaintiff’s motion for summary
  judgment due to “the delay tactics that [Broder] had insisted upon” and he did not file an ex parte
  application or motion to continue the hearing on the motion for summary judgment “[d]ue to the
  strategy discussed between Mr. Broder and myself.” (Chavez Decl. ¶¶ 7, 8.)

         Based on this record, the Court concludes Defendants were in reasonable control of the
  circumstances that caused the delay. Marx, 87 F.3d at 1054. Accordingly, this Pioneer factor
  weighs against the finding of excusable neglect.

                  4.      Whether Movant Acted in Good Faith
          Defendants contend there is no evidence that they have acted in bad faith when they
  failed to oppose Plaintiff’s motions for summary judgment, for attorneys’ fees, and for damages.
  (See Mot. at 14-15.) According to Defendants, “[t]he harm to Defendants from which it [sic]
  seeks relief resulted from the gross negligence of Defendants’ prior counsel, not from Defendants
  [sic] acts or omissions or they or their counsel’s deviousness or willfulness.” (Id. at 15.)

          In Opposition, Plaintiff argues Defendants acted willfully in failing to oppose the motions
  for summary judgment, for attorneys’ fees, and for damages. (See Opp’n at 6-10.) Plaintiff
  contends Defendants employed a “wait and see” approach in hopes “that the Court would award
  minimal damages or set the case for trial.” (Opp’n at 9.) Plaintiff points out Broder states in his
  Declaration he did not know Plaintiff had filed a motion for damages (see Broder Decl. ¶ 18), yet
  Chavez represents in his Declaration he discussed with Broder the possibility of retaining an
  expert witness to oppose the motion for damages but Broder declined and said the expense
  should be “put off for trial” (see Chavez Decl. ¶ 14). Plaintiff argues Defendants’ actions in
  failing to oppose his three motions, then filing the instant Motion months later after Plaintiff
  successfully levied funds from Defendants’ bank accounts was “calculated and intentional,”
  pursuant to their strategy to delay this litigation. (Opp’n at 9-10.)

          While the Court is persuaded by Plaintiff’s arguments that Defendants’ delay may have
  been more intentional than Defendants let on, there is no express evidence of deviousness or bad
  faith on Defendants’ behalf. The Court concludes this Pioneer factor weighs in favor of the
  finding of excusable neglect. See Bateman, 231 F.3d at 1225.

          On balance, three of the four Pioneer factors weigh against a finding of excusable neglect
  pursuant to Rule 60(b)(1). Overall, the carelessness displayed by Chavez and Prout in failing to
  file timely opposition to Plaintiff’s three motions or move to set aside the Court’s Amended

   Page 7 of 9                         CIVIL MINUTES – GENERAL             Initials of Deputy Clerk: cch


Case 2:18-cv-07188-VAP-SK Document 128 Filed 11/10/20 Page 8 of 9 Page ID #:1618


  Judgment or orders granting Plaintiff’s three motions does not constitute excusable neglect. See
  Engleson v. Burlington N. R.R. Co., 972 F.2d 1038, 1043-44 (9th Cir. 1992) (“Neither ignorance
  nor carelessness on the part of the litigant or his attorney provide grounds for relief
  under Rule 60(b)(1)” (internal quotation omitted)); see also, e.g., Pincay v. Andrews, 389 F.3d
  853, 857 (9th Cir. 2004) (“[I]nadvertence, ignorance of the rules, or mistakes construing the rules
  do not usually constitute ‘excusable’ neglect”); see also Allmerica Fin. Life Ins. and Annuity Co.
  v. Llewellyn, 139 F.3d 664, 665-66 (9th Cir. 1997) (“counsel’s failure to plead an affirmative
  defense . . . does not provide a basis for equitable relief under Rule 60(b)(1)”).

          Defendants’ arguments about Chavez’s failures as their counsel amount to claims of
  attorney malpractice. “As a general rule, parties are bound by the actions of their lawyers, and
  alleged attorney malpractice does not usually provide a basis to set aside a judgment pursuant to
  Rule 60(b)(1).” Casey v. Albertson’s Inc., 362 F.3d 1254, 1260 (9th Cir. 2004); see also Latshaw
  v. Trainer Wortham & Co. Inc., 452 F.3d 1097, 1101 (9th Cir. 2006) (“Rule 60(b)(1) is not
  intended to remedy the effects of a litigation decision that a party later comes to regret through
  subsequently-gained knowledge that corrects the erroneous legal advice of counsel. . . . [P]arties
  should be bound by and accountable for the deliberate actions of themselves and their chosen
  counsel. This includes not only an innocent, albeit careless or negligent, attorney mistake, but
  also intentional attorney misconduct. Such mistakes are more appropriately addressed through
  malpractice claims.”); Pioneer, 507 U.S. at 397 (“[C]lients must be held accountable for the acts
  and omissions of their attorneys.”); Llewellyn, 139 F.3d at 666 (“[A]ttorney error is insufficient
  grounds for relief under . . . Rule 60(b)(1).”); Williams v. Securitas Sec. Serv. USA, Inc., No. CV
  12-1885-GHK (SSx), 2012 WL 12888104, at *3 (C.D. Cal. Aug. 14, 2012). The Court
  acknowledges Defendants’ predicament, as Chavez carried no attorney malpractice insurance and
  is unable to “contribute a sum of money toward a settlement payment to Plaintiff that might
  resolve this action . . . .” (See Chavez Decl. ¶¶ 19-20.) Defendants have not met their burden,
  however, to show Chavez engaged in excusable neglect, warranting relief pursuant to Rule
  60(b)(1).

          Accordingly, the Court DENIES Defendants’ Motion brought pursuant to Rule 60(b)(1).

          B.      Federal Rule of Civil Procedure 60(b)(6)
          Alternatively, Defendants moves for relief pursuant to Rule 60(b)(6), which provides “the
  court may relieve a party or a party’s legal representative from a final judgment, order, or
  proceeding, for . . . any other reason . . . justifying relief from the operation of the judgment.”
  Fed. R. Civ. P. 60(b)(6). Rule 60(b)(6) is a catchall provision used sparingly to prevent manifest
  injustice only under “extraordinary circumstances.” United States v. Wash., 593 F.3d 790, 799-
  800 (9th Cir. 2009). In order to merit relief pursuant to Rule 60(b)(6), the moving party must
  demonstrate both injury and circumstances beyond his control that prevented him from
  proceeding with the prosecution or defense of the action in a proper fashion. Cmty. Dental Serv.
  v. Tani, 282 F.3d 1164, 1168 (9th Cir. 2002). A Rule 60(b)(6) motion must be based on grounds
  other than those listed in the Rule’s preceding clauses. Lafarge Conseils Et Etudes, S.A. v.
  Kaiser Cement & Gypsum Corp., 791 F.2d 1334, 1338 (9th Cir. 1986) (Rule 60(b)(6) “must be
  read as exclusive of preceding clauses.”).


   Page 8 of 9                         CIVIL MINUTES – GENERAL             Initials of Deputy Clerk: cch


Case 2:18-cv-07188-VAP-SK Document 128 Filed 11/10/20 Page 9 of 9 Page ID #:1619


          An attorney’s gross negligence qualifies as an extraordinary circumstance warranting
  relief pursuant to Rule 60(b)(6), but an attorney’s ordinary negligence does not. Tani, 282 F.3d
  at 1168-69; Lal v. Cal., 610 F.3d 518, 524-25 (9th Cir. 2010). In Tani, the attorney “virtually
  abandoned his client by failing to proceed with his client’s defenses despite court orders to do
  so” and deliberately deceived his client about what he was and was not doing. Tani, 282 F.3d at
  1170-71. Moreover, the attorney lied to his client and told him the case was proceeding properly
  when, in fact, a default judgment had been entered against the client. Id. at 1167. Likewise, in
  Lal, the attorney failed to prosecute his client’s case, deliberately misled his client, and expressly
  lied to his client by saying the case was proceeding properly when, in fact, it had been dismissed.
  Lal, 610 F.3d at 525-26.

          Here, Defendants have failed to provide evidence demonstrating Chavez’s gross
  negligence. There is no evidence before the Court that shows Defendants were lied to or mislead
  about the status of this case or were abandoned by Chavez. The record shows Chavez kept
  Broder informed about the filing of the motion for summary judgment, the Court’s order
  granting the motion for summary judgment, the filing of the motion for attorneys’ fees and,
  although disputed by Broder, Chavez declares he discussed Plaintiff’s motion for damages with
  Broder. (See Chavez Decl. ¶¶ 6-9, 13, 14.) Defendants fail to demonstrate “extraordinary
  circumstances” or articulate any other basis for relief pursuant to Rule 60(b)(6) other than those
  they already asserted pursuant to Rule 60(b)(1). Accordingly, the Court DENIES Defendants’
  Motion brought pursuant to Rule 60(b)(6).

  III.  Conclusion
        For the foregoing reasons, the Court DENIES Defendants’ Motion for Relief from
  Judgments and Orders.

          IT IS SO ORDERED.


   Page 9 of 9                          CIVIL MINUTES – GENERAL               Initials of Deputy Clerk: cch