Also, CCP § 473 Motion to Vacate Denial Order Was Timely, But Mandatory Relief Not Available And Discretionary Relief Properly Denied For Lack Of Diligence.
Grinberg v. Kalili, Case No. B245899 (2d Dist., Div. 4 Sept. 10, 2014) (unpublished) originated as a dispute over the suitability of a $158,000 Ferrari, with the plaintiff losing and then being exposed as a defendant, in tandem with his attorney as a co-defendant, in a malicious prosecution suit by the Ferrari prevailing litigant. Defendants in the malicious prosecution successfully SLAPPed malicious prosecution plaintiff, obtaining a judgment for costs and for ______ in fees which was served on October 29, 2011. Later, one of the winning SLAPP defendants (the former suing Ferrari plaintiff) requested $55,615 in mandatory SLAPP fees, but the lower court only awarded $43,237.50 on an unopposed motion at a March 20, 2012 hearing, which order was entered on May 8, 2012. Then, about five months after the fee hearing, the attorney’s fees loser moved to vacate the fee order under CCP § 473. The lower court denied that motion on November 9, 2012, with loser appealing all orders/judgments “under CCP § 904.1(a)(3)-(13)” on December 19, 2012.
The SLAPP merits appeal was untimely—it was one year too late, with the motion to vacate not extending the time for an appeal.
Because the fee loser did timely appeal the motion to vacate under § 473, that did extend the time to appeal the fee order itself. However, CRC 8.108 has an important “earliest date” trigger—30 days after notice of entry of the motion to vacate order (something not at play, because no notice of entry was given) or 90 days after the motion to vacate was filed or 180 days after entry of the fee order. That last segment rendered fee loser’s appeal of the fee order untimely, because 180 days from the entry of the fee order expired on November 4, 2012 such that the December 19, 2012 appeal was too late.
That took the reviewing court to the timely appeal of the denial of the motion to vacate the fee order under § 473. Fee loser’s attorney tried to “fall on the sword,” but the appellate court found mandatory relief was not available because the denial order was not a default or a default judgment. (Vandermoon v. Sanwong, 142 Cal.App.4th 315, 321 (2006).) As far as discretionary relief was at issue, the lower court found that fee loser’s attorney did not adequately explain why five months elapsed from the date of the fee hearing to the date of the filing of the motion to vacate—put another way, no adequate diligence was shown on why relief was not sought earlier. Bottom line, $43,237.50 fee order remained intact.