Lower Court Did Not Err In Directing That $1,000 Penalty Be Paid By Party Requesting Default Relief to Superior Court Instead.
In Sanai v. Pfeiffer, Case No. B246349 (2d Dist., Div. 4 June 26, 2014) (unpublished), an in pro per attorney sued an ex-client defendant for $149,240 in legal fees. However, the defense filed a notice of vexatious litigation and requested a dismissal, erroneously relying on a prior vexatious litigant order which had been stayed by the Court of Appeal earlier. Attorney kept filing requests for entry of default, which ex-client opposed through ex parte applications—with the lower court eventually granting the default request but simultaneously granting ex-client’s request for relief from default based on surprise pursuant to the discretionary provisions of CCP § 473(b)—hinged on the idea that the adverse party might think the vexatious litigant order was alive and well (especially given the party was represented by counsel who did not advice otherwise).
Then, attorney filed a motion for compensatory legal fees, costs, and sanctions under section 473(b)-(c). Attorney should $39,000 in legal fees, $2,840.50 in out of pocket costs, and $1,000 in sanctions from both ex-client’s counsel. Attorney and ex-client reached a settlement calling for payments over time on the agreed settlement amount for the fee receivable but that attorney could continue proceed against ex-client’s attorney. The lower court held that attorney was entitled to recover costs in the amount of $440.50 and ordered ex-client’s attorney to pay $1,000 to the superior court, but denied the $31,000 fee request. Attorney filed a dismissal with prejudice pursuant to the settlement agreement with ex-client. Attorney appealed the denial of fees and sanctions against ex-client’s attorney.
The lower court’s rulings were affirmed on appeal. First, the voluntary dismissal did not retard appeal of fee/sanctions order because the dismissal was done to expedite an appeal. (Stewart v. Colonial Western Agency, Inc., 87 Cal.App.4th 1006, 1012 (2001);Goldbaum v. Regents of Univ. of Cal., 191 Cal.App.4th 703, 708 (2011).) Next, the $31,000 fee denial was no abuse of discretion because, under analogous cases, the Tropeprohibition should also apply under CCP § 473’s discretionary provisions barring an in pro per attorney from recovering legal fees as sanctions. (Cf. Musaelian v. Adams, 45 Cal.4th 512, 519 (2009) [CCP § 128.7 case].) Last, ordering the $1,000 penalty paid by ex-client’s attorney to the superior court, rather than counsel, was no error given the wide range of relief available to the trial judge under section 473.
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