Park v. Help U Build
Filed 4/15/13 Park v. Help U Build CA2/2
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
TWO
WAYMAN
PARK,
Plaintiff and Respondent,
v.
HELP U BUILD et al.,
Defendants;
JOSEPH TRENK,
Objector and Appellant.
B239446
(Los Angeles
County
Super. Ct.
No. VC057438)
APPEAL from
a judgment of the Superior Court
of
County.
Robert J. Higa, Judge.
Affirmed.
Joseph
Trenk, in pro. per., for Objector and Appellant.
Law Offices
of Dilip Vithlani, Dilip Vithlani; Law Offices of Maria Puente-Porras, Maria
Puente-Porras for Plaintiff and Respondent.
No
appearance for Defendants.
___________________________________________________
Attorney Joseph Trenk appeals from the denial of his
reconsideration. (Code Civ. Proc., §§
473, 1008.)
title="">[1] Trenk was ordered to pay $12,000 in attorney
fees to plaintiff’s counsel after admittedly neglecting his duty to defend his
clients and allowing a default judgment to be entered against them. On appeal, he argues that (1) he had no
notice of the hearing at which the court vacated the default judgment based on
Trenk’s “attorney affidavit of fault,†and (2) the fee awarded is excessive. We find no abuse of discretion and affirm.
FACTS
Events Leading To This Lawsuit
Plaintiff
Wayman Park
is a retiree who lives in Bellflower. In 2010, defendant Help U Build (HUB) offered
Park a free estimate for construction repairs.
Based on HUB’s promises to do excellent work and obtain building
permits, Park signed a $4,300 contract to repair his kitchen floor. One day later, the HUB representative
convinced Park that the entire kitchen needed remodeling and induced him to
sign a contract for $34,590. Two weeks
later, HUB claimed that the home was re-piped with copper and had passed city
inspection.
Park’s granddaughter went to city
hall to inquire about the inspection, only to learn that HUB never applied for
a permit. City inspectors went to Park’s
home. When workers there failed to show
a permit, the inspectors demanded that they leave the premises. Park discovered that the old piping was still
in place and that work done elsewhere in the house was substandard. Park obtained bids for $37,200 and $39,500 to
demolish HUB’s work and repair the damage.
Park sued HUB and its president Ron Galam, who were
served with the summons and complaint on November 5, 2010.
Sefora Construction was added as a Doe defendant soon after. Appellant Trenk represented the defendants. After serving the lawsuit, plaintiff
propounded discovery and tried to schedule depositions. Trenk requested an extension of time to
answer the complaint and the discovery, and was given until January 14, 2011: on that date, plaintiff’s counsel wrote to
remind Trenk that the answer and discovery responses were due. As a courtesy, he extended the due date to
January 20. Trenk did not respond
to counsel’s letter.
On February 7, 2011, plaintiff filed
notices of defaults against defendants.
Plaintiff’s counsel warned Trenk in writing about the defaults, and sent
him copies. Trenk did not respond to
counsel’s letter. The court clerk
entered the defaults March 18, 2011. Plaintiff asked the trial court to render
judgment in his favor, based on declarations detailing defendants’
conduct. On May 10, 2011, the court entered judgment against
HUB, Galam and Sefora. The judgment
imposed $37,819 in economic damages; $10,000 for violating state law; $10,000
in punitive damages; $9,800 in attorney fees; $3,046 in prejudgment interest;
and $995 in court costs.
Defendants Seek Relief from the Default Judgment
Defendants
moved to set aside the judgment in July 2011, blaming the default on Trenk’s
dereliction of duty. Trenk submitted an
affidavit of fault in which he acknowledged receipt of letters from plaintiff’s
counsel, reminding him that answers to the complaint and discovery were due and
warning that a default would be taken.
Trenk declared that “[d]ue to mistake, inadvertence and excusable
neglect I failed to file any responsive pleadings and also failed to respond to
discovery responses when they were due.
Moreover, I failed to advise the
clients that a default was sought by Plaintiff’s counsel against them, failed
to advise the clients that a default was in fact entered against them and also
failed to advise the client[s] of the default judgment that was entered against
them.†In May 2011, Trenk was suspended
from the practice of law; thereafter, he advised defendants of his suspension,
of the judgment against them, and of his inability to assist them.
At a
hearing on September 15, 2011,
the court deemed it “mandatory†to set aside the default under section 473, due
to Trenk’s declaration admitting fault.
The court added, “I’m going to impose attorneys fees that he’s going to
have to pay. I think the Code is pretty
clear about that also.†The court
awarded attorney fees and costs of $12,000 to plaintiff, payable by Trenk. Trenk did not attend the hearing.
On
September 19, 2011, defendants’ new attorney served a notice of ruling on
Trenk, stating that Trenk was ordered to pay $12,000 within 30 days. For his part, plaintiff’s counsel twice
served Trenk with a proposed order awarding fees, on September 22 and October
13, 2011. Receiving no objections to the
proposed order, plaintiff had the court sign the order on October 31,
2011. It states that the motion for
relief from default is set aside based on Trenk’s affidavit of fault, which
entitles plaintiff to reasonable attorney fees of $12,000, payable by Trenk.
Trenk Moves to Set Aside or Reconsider the Order for Attorney Fees
On December
8, 2011, Trenk filed a motion to set aside or reconsider the court’s order for
attorney fees. Trenk asserted that he
had no notice of the hearing that led to the order and, as a result, did not
participate in it. Trenk observed that
he is neither a party to the action nor counsel for a party. His only connection was to voluntarily
provide an affidavit of fault in support of defendants’ motion to set aside the
default. He was not served with the
motion to set aside the default, and argued that he was not properly served
with the court’s October 31 order awarding fees.
In
opposition, plaintiff argued that Trenk had notice of the court’s intention to
award fees. On September 29, Trenk
acknowledged receipt of the proposed order awarding fees. Plaintiff re-served Trenk with the proposed
order imposing fees on October 13, but waited until October 31 to file it with
the court. During that time frame, Trenk
raised no objections to the proposed award.
Plaintiff submitted into evidence a proof of service showing that Trenk
was served on November 1, 2011, with the court’s signed order requiring him to
pay fees.
At a
hearing on January 23, 2012, Trenk argued that he had no notice or opportunity
to dispute the attorney fees. Plaintiff
countered that when Trenk submitted his affidavit of fault, he knew or should
have known that attorney fees were mandated, so he should have appeared at the
hearing on the motion to set aside the default.
Trenk did not point to any portion of the fee award that is unreasonable
or excessive. The court denied Trenk’s
motion, noting that section 473 mandates a fee award when an attorney admits
fault in causing a default that is later set aside.
DISCUSSION
1. Jurisdiction
Plaintiff
argues that this appeal must be dismissed as untimely. An untimely notice of appeal is an “absolute
bar†to appellate jurisdiction. (
(1992) 5 Cal.App.4th 81, 83.) This
appeal was taken on February 21, 2012, from the trial court’s January 23 denial
of Trenk’s motion to reconsider the fee order.
The 29-day span between the ruling and the notice of appeal meets
jurisdictional time limits. (Cal. Rules
of Court, rule 8.104(a).)
Plaintiff
contends that the order being appealed is, in reality, not the one denying
Trenk’s motion; rather, he identifies it as the order imposing attorney fees,
entered on October 31, 2011. Plaintiff
concedes that the time for appealing is extended if a party “serves and files a
. . . valid motion [ ] to vacate the judgment†or “serves and files a valid
motion to reconsider an appealable order.â€
(Cal. Rules of Court, rule 8.108(c), (e).) He insists that Trenk’s motion was not
“valid†under rule 8.108 and did not extend the time to appeal.
A “validâ€
motion that extends the time for an appeal is one that “complies with all procedural requirements; it does not mean that
the motion or notice must also be substantively meritorious.†(Branner
v. Regents of University of California (2009) 175 Cal.App.4th 1043,
1047.) A valid motion for
reconsideration is one that is timely and contains a declaration in support of
the motion. A valid motion to vacate is
one that is brought on some recognized ground for a motion to vacate. (Id.
at p. 1048; Payne v. Rader (2008) 167
Cal.App.4th 1569, 1574; Ten Eyck v.
Industrial Forklifts Co. (1989) 216 Cal.App.3d 540, 545.)
A party may
extend the time to appeal by making a statutory motion to vacate under sections
663 (judicial error) or 473 (judgment arising from mistake, inadvertence,
surprise or neglect); the courts also recognize nonstatutory motions to vacate
a judgment on equitable grounds.
(Advisory Com. com., Deering’s Ann. Codes, Rules (2013 supp.) foll. rule
8.108, p. 104.) Trenk sought relief
under section 473. He also invoked the
trial court’s “inherent equitable powers,†citing “circumstances that deprive
an adversary of fair notice of a hearing.â€
Plaintiff
generously details the procedural deficiencies of Trenk’s motion for
reconsideration that render it invalid under rule 8.108: for one thing, reconsideration was sought
long after the 10-day window for seeking reconsideration expired. (§ 1008, subd. (a).) However, plaintiff does not say why Trenk’s
statutory and nonstatutory requests for relief are procedurally deficient. Plaintiff offers neither legal authority nor
argument demonstrating that Trenk’s motion to vacate is invalid: their absence forfeits the issue. We have jurisdiction because Trenk’s motion
to vacate extended the time to appeal under California Rules of Court, rule
8.108(c).)
2. Standard of Review
The trial
court’s ruling denying relief under section 473 is reviewed for an abuse of
discretion amounting to a manifest miscarriage of justice. (Hearn
v. Howard (2009) 177 Cal.App.4th 1193, 1200.) Abuse of discretion is the standard for
reviewing requests for equitable relief, but relief will be denied unless “the
moving party is able to convince that court that he has exercised reasonable
diligence to protect himself against the judgment.†(Daher
v. American Pipe & Constr. Co. (1968) 257 Cal.App.2d 816, 819.) Requests for relief may be addressed to the
court’s equitable powers when an aggrieved person claims that he was prevented
from exhibiting his case due to fraud or deception practiced by his opponent to
keep him away from court; or was kept in ignorance by the acts of the
plaintiff; or others connived at his defeat.
(Estate of Sanders (1985) 40
Cal.3d 607, 614; Baske v. Burke (1981)
125 Cal.App.3d 38, 43.)
3. Denial of Relief
a. Notice and Opportunity to Be Heard
Trenk contends that he is entitled
to relief from the court’s attorney fee order because he was deprived of his
due process rights. He writes, “There is
no dispute between the parties that, with respect to the Motion to Vacate
Default, Opposition thereto and hearing thereon, the Appellant was provided no
notice of any such filing or hearing.
Everything that occurred with respect to Defendants’ Motion to Vacate
Default, occurred without the participation of Appellant nor any form of notice
to him.†As a result, he continues, “a
judgment was entered against Appellant for the amount of $12,000.00, without
any notice, hearing, or opportunity to be heard.â€
The record shows that, contrary to
Trenk’s claims, he knew of his former clients’ motion. Indeed, Trenk submitted a declaration in
support of the defense motion, admitting fault for failing to respond to the
complaint or to discovery requests, for failing to advise his clients that
notices of default were filed and entered, and for failing to tell his clients
about the ensuing judgment. As a result
of Trenk’s admissions of fault, the trial court had to grant the motion to
vacate the default judgment.
After vacating the default, the
court was required to impose attorney fees on the attorney who was at
fault. As a lawyer, Trenk must be
presumed to have read section 473, the statute under which he submitted the
affidavit of fault. Subdivision (b) of
that statute states that if a court grants relief, “[t]he court
on an attorney’s affidavit of fault, direct
the attorney to pay reasonable compensatory legal fees and costs to
opposing counsel or parties.†(Italics
added.)
In his brief, Trenk admits that he
“provided a declaration setting forth grounds for relief under the provisions
of California Code of Civil Procedure §
473(b).†He does not dispute that relief
from default was mandatory once he submitted a declaration of fault, nor does
he dispute that the court had to direct him to pay compensatory legal fees to
opposing counsel or to plaintiff, based on his declaration of fault. If Trenk failed to appear at the hearing on
the motion to vacate—despite knowing that relief and attorney fees were
mandatory—it was not because he was unaware of it. Rather, he did not appear because he did not
exercise diligence to protect his interests.
After the September 15 hearing on
defendants’ motion to vacate, Trenk was served with (1) a notice of the court’s
ruling (September 19); (2) two proposed orders awarding fees (September 22 and
October 13); and (3) a motion asking the court to issue a formal order
requiring him to pay fees (October 31).
At no point during September or October did Trenk object to the attorney
fees sought by plaintiff or ask the court to reconsider its ruling in a timely
manner. Instead, Trenk treated the four
notices of the $12,000 fee award in the same manner that he treated plaintiff’s
January 14 and February 7 letters warning of imminent default: he ignored them. His failure to state reasons for disapproving
a proposed order prepared by the prevailing party is deemed to be an approval
of the proposed order. (Cal. Rules of
Court, rule 3.1312(a).)
In sum, Trenk knowingly acquiesced
in a motion to vacate the default judgment that he admittedly caused. He submitted a declaration of fault in
furtherance of that motion. He cannot
claim ignorance of a motion in which his own declaration was the
cornerstone. He cannot claim ignorance
that the motion, if granted, would compel attorney fees that he, personally,
would be required to pay. When given
notice of the court’s ruling, he failed to object to the proposed order or
bring a timely motion for reconsideration.
In light of Trenk’s inaction, the court did not abuse its discretion by
denying his motion to vacate because Trenk did, in fact, know what was
happening, and participated in his former clients’ motion to avoid being sued
for legal malpractice.
of Fees
Trenk contends that the provision
of section 473 requiring him to pay “reasonable compensatory legal fees and
costs†refers only to “activities related to the default.†He believes the court should have allowed
only the fees and costs incurred in connection with defendants’ motion to
vacate, which was $3,000.
A person
who moves to set aside a judgment may be required to repay his opponent’s legal
fees and costs. The award may encompass
the fees and costs associated with defending against the motion to vacate. The appellate court in Vanderkous v. Conley (2010) 188 Cal.App.4th 111 affirmed a trial
court’s award requiring the moving party “to reimburse [his adversary] the
attorney fees and costs of $16,763 for proceedings in connection with the
section 473 motion.†(
the cost of responding to the motion to vacate, the moving party may also be
required to pay “attorney fees and costs incurred in obtaining the defaults.†(
Cal.App.4th 816, 823.) The trial court
is in the best position to determine what constitutes reasonable
compensation. (Jade K. v. Viguri (1989) 210 Cal.App.3d 1459, 1474.)
In this
case, instead of moving with quiet stealth to snatch a default judgment from
under Trenk’s nose, plaintiff’s counsel tried to work with Trenk. Plaintiff’s counsel acceded to Trenk’s
request for extra time to answer the complaint and the discovery requests. When Trenk failed to respond by the extended
due date, plaintiff’s counsel wrote to Trenk, reminding him of his
obligation. As a courtesy—without
prompting—plaintiff’s counsel gave Trenk six days more to live up to his
duties. Trenk did nothing, even though
plaintiff’s counsel waited another 18 days to see if Trenk would react. Finally, plaintiff’s counsel filed
writing about them: again, Trenk did
nothing and the court clerk entered the defaults 39 days later.
Under the
circumstances, the trial court could find that “reasonable compensatory legal
fees and costs†includes the time plaintiff’s attorney spent trying to save
Trenk from a potential malpractice suit.
Plaintiff’s counsel made every effort to avoid the default judgment that
ultimately ensued. He should be
compensated for his efforts by Trenk, not by his own client, inasmuch as Trenk
was the beneficiary of opposing counsel’s professional courtesy. The trial court properly awarded fees for
counsel’s work leading up to the default and obtaining a default judgment at a
prove-up hearing, as well as his work defending against defendants’ motion to
set aside the default judgment. All of
this activity arose from Trenk’s neglect of his duty to represent his
clients. The award did not cover work
plaintiff’s counsel had to perform to resist Trenk’s motion for relief, or his
work responding to Trenk’s appeal.
name="_ftnref2" title="">[2]
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
BOREN,
P.J.
We concur:
CHAVEZ, J.
FERNS, J.*
_______________________________________________________________
* Judge
of the Los Angeles Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6
of the California Constitution.
name="_ftn1" title="">[1] Statutory
references in this opinion are to the Code of Civil Procedure.
name="_ftn2" title="">[2] The
last sentence of plaintiff’s brief requests an award of attorney fees on
appeal, but cites no basis for making such an award.
