Not Necessarily . . . . As The Third District Informs Us in the Next Decision.
We would likely tell you that a common legal urban myth is that one always needs to pay some costs and fees as a condition of obtaining default relief under the mandatory “attorney falls on the sword” prong of Code of Civil Procedure section 473. In fact, section 473(b) provides that the court shall direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or the parties. Sounds mandatory, doesn’t it? Well, not necessarily, as the next unpublished decision from the Third District demonstrates. General legal urban myths are, like others, not universal in nature.
In Reyes v. Johnson, Case No. C064402 (3d Dist. Mar. 15, 2011) (unpublished), defendant obtained set asides of their defaults and the resulting default judgment against them, determinations affirmed on the merits upon appeal. Plaintiff also argued that it was error for the lower court to deny any award of costs or fees as a condition of the default set asides.
No, it was okay not to award them under the circumstances. Reason?
The key word in section 473(b) is that only reasonable fees and costs shall be awarded. Here, the trial court had no obligation to award fees and costs it determined were unreasonable. That happened to be the case, because the proof suggested that plaintiff’s counsel took defaults without warning to defense counsel after providing an open-ended extension of time while defendants were waiting to see if a carrier picked up a defense (an event which would mean new defense counsel would be entering the scene). The lower court was properly allowed to not award costs and fees where they were the product of plaintiff’s counsel failure to mitigate by warning defense counsel that a response needed to be provided before proceeding in default judgment mode.
Comments