Judge: Serena R. Murillo, Case: BC718562, Date: 2023-08-10 Tentative Ruling
Case Number: BC718562 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.