Judge: Serena R. Murillo, Case: 20STCV17245, Date: 2023-08-10 Tentative Ruling
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Case Number: 20STCV17245 Hearing Date: August 10, 2023 Dept: 31
TENTATIVE
Plaintiff’s Motion to Set Aside or Vacate Judgment for Attorney Fees is DENIED.
Legal Standard
Code of Civil Procedure section 473, subdivision (b) provides, a court may relieve a party or his or her legal representative from a judgment taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect, only where the application for relief is made within six (6) months from the date of entry of judgment. (Code Civ. Proc., § 473, subd. (b).)
“The court may… on motion of either party after notice to the other party, set aside any void judgment or order.” (Code Civ. Proc., § 473, subd. (d).)
“[I]nclusion of the word ‘may’ in the language of section 473, subdivision (d) makes it clear that a trial court retains discretion to grant or deny a motion to set aside a void judgment [or order].” (Cruz v. Fagor America, Inc. (2007) 146 Cal.App.4th 488, 495.) The judgment must be void, not merely voidable. A judge has no statutory authority under Section 473(d) to set aside a judgment that is not void. (Id., 495-496.) When a court has jurisdiction over the defendant and the action but acts in excess of its defined power by failing to follow proper procedure, any resulting default judgment is voidable, not void. (Johnson v. E-Z Ins. Brokerage, Inc. (2009) 175 Cal.App.4th 86, 98-99 [by awarding terminating sanctions on ex parte basis, judge at most failed to follow proper procedure, and resulting default judgment was voidable, not void]; Lee v. An (2008) 168 Cal.App.4th 558, 564-566 [subsequent default judgment was voidable, not void, when judge imposed terminating sanction against defendant for failure to appear at case management conference as specified in court's local rules and judge had not given notice to defendant].)
A judgment is ‘void’ only when the court entering that judgment ‘lack[ed] jurisdiction in [a] fundamental sense’ due to the ‘‘entire absence of power to hear or determine the case’ ‘resulting from the ‘‘absence of authority over the subject matter or the parties.’ ‘To be sure, a court that ‘‘‘acts contrary to [its] authority’’ ‘‘‘to give certain kinds of relief, or to act without the occurrence of certain procedural prerequisites’ ‘is often said to lack ‘jurisdiction.’ But such acts do not render the court's ensuing judgment or order void. That is because ‘jurisdictional errors can be of two types[:] A court can lack fundamental authority over the subject matter, question presented, or party, making its judgment void, or it can merely act in excess of its jurisdiction or defined power, rendering the judgment voidable.’ Only void judgments and orders may be set aside under section 473, subdivision (d); voidable judgments and orders may not.
(People v. North River Insurance Co. (2020) 48 Cal.App.5th 226, 233-234 (citations omitted).)
“An order is considered void on its face only when the invalidity is apparent from an inspection of the judgment roll or court record without consideration of extrinsic evidence. [] There is no time limit to attack a judgment void on its face.” (Pittman v. Beck Park Apartments Ltd. (2018) 20 Cal.App.5th 1009, 1021.) “If the invalidity can be shown only through consideration of extrinsic evidence, such as declarations or testimony, the order is not void on its face. Such an order must be challenged within the six-month time limit prescribed by section 473, subdivision (b), or by an independent action in equity.” (Ibid.)
Discussion
Plaintiff argues that due to mistake, and excusable neglect, she failed to cite cases on her opposition for the motion for attorney fees.
“‘[A] mistake as to law does not require relief from default as a matter of law.’” (Hernandez v. Garcetti (1998) 68 Cal.App.4th 675, 683 (quoting Anderson v. Sherman (1981) 125 Cal.App.3d 228, 238).) “‘The issue of which mistakes of law constitute excusable neglect presents a fact question; the determining factors are the reasonableness of the misconception and the justifiability of lack of determination of the correct law.’” (Id. (quoting Anderson, supra, 125 Cal.App.3d at 238).) “‘Although an honest mistake of law is a valid ground for relief where a problem is complex and debatable, ignorance of the law coupled with negligence in ascertaining it will certainly sustain a finding denying relief.’” (Id. at 683-84 (quoting Anderson, supra, 125 Cal.App.3d at 238).)
First, Plaintiff offers no insight on what case citations she wanted to submit with her opposition to the attorney fees motion. Thus, the court cannot make a determination as to whether the mistake was reasonable. In addition, Plaintiff has not sufficiently explained why the caselaw was not submitted as part of her opposition to the attorney fees motion. (See Wiz Technology, Inc. v. Coopers & Lybrand (2003) 106 Cal.App.4th 1, 17 (failure by counsel to understand significance of evidence submitted in summary judgment motion does not justify relief under § 473); Cochran v. Linn (1984) 159 Cal. App. 3d 245, 251 (negligence in failing to plead the case properly, or to produce sufficient evidence to oppose a summary judgment motion, does not warrant relief under section 473).) Further, ignorance of the law coupled with negligence in ascertaining it will sustain a finding denying relief. (Anderson, supra, 125 Cal.App.3d at 238.) As such, Plaintiff’s ignorance of the law she wanted to submit and her negligence in finding cannot provide her with relief here.
As a result, the Court finds that Plaintiff has not made a showing of mistake, inadvertence, surprise or excusable neglect.
In her reply, Plaintiff states she faults the trial court for not determining her ability to pay the fees awarded against her. She cites to Villanueva v. City of Colton (2008) 150 Cal.App.4th 1188, 1203-1204.
In the event Plaintiff wanted to submit the Villanueva case with her opposition to the motion for attorney fees, it appears that the Villanueva case applies to FEHA cases, and the case at hand is not under FEHA. The appellate court stated in Villanueva: “We agree with the rationale of Rosenman. Because the majority of cases under the FEHA involve litigants who would not have the financial means to prosecute this type of case, the public policy behind the FEHA is served by not discouraging them from pursuing the litigation by potentially imposing fees that could easily devastate them financially simply because a few file frivolous claims. Thus, a plaintiff's ability to pay must be considered before awarding attorney fees in favor of the defendant.” (Id., at 1203.) As the present case is not a FEHA case, this caselaw, even if submitted with her opposition to the motion for attorney fees, would not have helped Plaintiff.
Moreover, even if Villanueva did apply, the Court there found that “Villanueva offered no evidence of any kind which might have warranted a reduced fee award. Indeed, in responding to the City's request, he easily could have offered a declaration setting forth his gross income, his net income, his monthly expenses, his assets, or any other information which he thought would lend support to his position. He failed to do so. Thus, while we are confident that a trial court has an obligation to consider a losing party's financial status before assessing attorney fees under the FEHA, on the record before us we are unable to say that the court's fee award was an abuse of discretion.” (Id., at 1204.)
Here too. In her opposition to the motion for attorney fees, Plaintiff simply declared she cannot afford the attorney fees. However, the declaration is not signed under penalty of perjury, and thus, is inadmissible evidence. As a result, she also submitted no evidence in opposition of that motion to show she is unable to pay, just as in Villanueva.
Next, Plaintiff also moves under CCP section 473(d) and argues that the Court granted the motion for attorney fees without a hearing regarding her ability to pay.
Here, the Court finds that the order for attorney fees is neither void nor voidable. The Court did not lack jurisdiction in a fundamental sense due to the entire absence of power to hear or determine the case resulting from the absence of authority over the subject matter or the parties. Therefore, the Court has no statutory authority under Section 473(d) to set aside the judgment as it is not void. (Cruz v. Fagor Am., Inc. (2007) 146 Cal.App.4th 488, 495-496.) Even if there was a requirement to consider ability to pay, the order would not be void on its face because it would require consideration of extrinsic evidence regarding her inability to pay. As it would not be void on its face, Plaintiff would need to resort to CCP section 473(b). (Pittman v. Beck Park Apartments Ltd. (2018) 20 Cal.App.5th 1009, 1021.) However, she failed to make a proper showing under this section as discussed above.
Conclusion
Accordingly, Plaintiff’s Motion to Set Aside or Vacate Judgment for Attorney Fees is DENIED.