Reversal Meant $94,072.50 Fee Award Evaporated.
Here is one showing that appellate courts will try to do equity depending on the facts of a particular dispute. (And, by making this comment, we in no way mean they ignore the law—quite to the contrary, as we have seen in numerous posts.) Unfortunately, for plaintiff and her attorneys, the result meant that a $94,072.50 fee award went POOF! on appeal.
Williams v. Ablakhad, Case No. B214364 (2d Dist., Div. 1 Aug. 27, 2010) (unpublished) involved a donnybrook of a dispute between defendant used car dealer and one of his customers (plaintiff Williams). By the time the opinion we discuss came down, the parties were already on their third appeal.
Notwithstanding dueling actions and the multiple appeals, Ms. Williams eventually won a net damage award of $5,063 against defendant. However, because there was a mandatory fee-shifting clause at play under the Automobile Sales Finance Act (Civil Code section 2983.4), plaintiff tardily moved to recoup $94,972.50 in attorney’s fees. We say tardily, because plaintiff filed the motion way more than 60 days after service of the notice of entry of judgment, a notice of entry filed and serve by plaintiff’s own attorney at the time. The trial judge, however, granted plaintiff’s CCP § 473 motion for relief on the late filing, based on declarations that there was an internal law firm miscommunication on when to mail the notice of entry of judgment (if at all). As a result of the relief motion, the lower court went on to award plaintiff’s attorneys their statutory fees for the trial in the amount of $94,072.50, almost 20 times the net amount she received as damages as a result of prior wranglings.
Defendant appealed from the order granting relief from the late filing of the fees motion.
Any guesses? If you said reversal, you were correct.
Discretionary relief under CCP § 473 really boils down to demonstrating that an attorney’s mistake or inadvertence was excusable—which boils down further to a determination of whether a reasonably prudent person would make the same error under the same or similar circumstances. (Bettencourt v. Los Rios Community College Dist., 42 Cal.3d 270, 276 (1986).) Not the case here for two reasons. First, plaintiff’s attorney had at least three objective indications that the notice of entry did go out from his office—defendant filed a notice of appeal early on, defendant moved for attorney’s fees early on, and the clerk of the superior court mailed a notice of appeal to plaintiff’s attorney early on. These circumstances should have placed plaintiff’s attorney on notice that something was awry. Beyond that however, discretionary relief is granted to give a plaintiff her day in court, a purpose not served by granting relief on a fee request asking for exorbitant fees in only winning a $5,000 damages award.
What about mandatory relief under CCP § 473? Not in the cards. Aside from being untimely (the motion for relief was brought way after six months from date of entry of judgment), the appellate panel found that it only applies to a default, default judgment, or dismissal—none of which was involved given that a fee motion was at issue. (Cf. Henderson v. Pacific Gas & Electric Co., L.A. Daily App. Rpt. (Aug. 9, 2010) p. 12237 [no mandatory § 473 relief applicable to summary judgment opposition failures].)
So, in the end, the fee award was vacated. Each party was also ordered to bear his/her own costs on appeal, with Ms. Williams’ costs to be borne by her attorney.
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