Li vs. Chen

Plaintiff surrendered possession of the premises in exchange for a promise that his adversaries would forego collection of costs it would have been entitled to had the matter proceeded to trial. There is no reasonable possibility this set of facts could support a cause of action for malicious prosecution. Accordingly, the motion is GRANTED.

Moving Defendant shall provide notice.

10 Li vs. Chen

2024-01434921

Motion for Attorney Fees

Under Ca. Civ. Code § 473(b), an award of attorney fees is mandatory where the court sets aside a default under the mandatory relief provision when specific conditions are met. The statute provides that “the court shall, whenever relief is granted based on an attorney’s affidavit of fault, direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties.” This fee-shifting provision is triggered automatically when the court grants mandatory relief from a default or default judgment based on the defaulting party’s attorney attesting to mistake, inadvertence, surprise, or neglect. Jimenez v. Chavez (2023) 97 Cal.App.5th 50.

This provision serves to “relieve the innocent client of the burden of the attorney’s fault, to impose the burden on the erring attorney, and to avoid precipitating more litigation in the form of malpractice suits.” Jackson v. Kaiser Foundation Hospitals, Inc. (2019) 32 Cal.App.5th 166.

To obtain mandatory attorney fees, the moving party must establish that the court granted relief based on the mandatory relief provision rather than discretionary relief. The mandatory relief provision applies only when an application for relief is made within six months after entry of judgment, is in proper form, and is accompanied by an attorney’s

sworn affidavit attesting to the attorney’s mistake, inadvertence, surprise, or neglect. Jimenez, supra.

However, relief may be denied “when the court finds that the default was not in fact the attorney’s fault, for example when the attorney is simply covering-up for the client.” Rodrigues v. Superior Court (2005) 127 Cal.App.4th 1027.

The compensatory legal fees and costs that must be paid are those reasonably incurred by the opposing party as a result of the default. In one case, the court determined that the appropriate fees included “attorney fees and costs incurred in obtaining default judgments and not total costs incurred in defending against motion to set aside defaults and responding to appeal.” Rogalski v. Nabers Cadillac (1992) 11 Cal.App.4th 816.

Here, the relief was not under the mandatory portion of the statute. This court did not rely on an attorney affidavit of fault when it set aside the default. Instead, it relied on the evidence whereby the Moving Party defendant testified that the old office manager never delivered him the envelope containing the summons and complaint. It was not until months later that a new office manager was hired and discovered the envelope, delivering it to defendant. Shortly thereafter, this motion was filed. In the underlying motion for relief from default, the court found defendant’s reliance on his office manager was reasonable. (Citing to Bae v. T.D. Services Co. of Arizona (2016) 245 Cal.App.3d 1143.)

Notwithstanding the above, the court still has discretion to award some fees here, although not the amount requested by plaintiff. Under section 473(c), whenever the court grants relief from a default, default judgment, or dismissal based on any provision of section 473—including both the mandatory and discretionary relief provisions—the court has discretionary authority to impose a penalty of up to $1,000 upon an offending attorney or

party, direct that the offending attorney or party pay the opposing party’s reasonable expenses including attorney fees, or direct payment to the State Bar Client Security Fund. These discretionary sanctions are separate from and in addition to the mandatory fee requirement that applies specifically when relief is granted based on an attorney’s affidavit of fault.

Section 473(c) states in part:

(c)(1) Whenever the court grants relief from a default, default judgment, or dismissal based on any of the provisions of this section, the court may do any of the following:

(A) Impose a penalty of no greater than one thousand dollars ($1,000) upon an offending attorney or party. (B) Direct that an offending attorney pay an amount no greater than one thousand dollars ($1,000) to the State Bar Client Security Fund. (C) Grant other relief as is appropriate.

(2) However, where the court grants relief from a default or default judgment pursuant to this section based upon the affidavit of the defaulting party’s attorney attesting to the attorney’s mistake, inadvertence, surprise, or neglect, the relief shall not be made conditional upon the attorney’s payment of compensatory legal fees or costs or monetary penalties imposed by the court or upon compliance with other sanctions ordered by the court.

Code Civ. Proc., § 473(c).

Here, the Court awards sanctions in the amount of $1,000.00 per section 473(c)(1)(A).

RULING:

Plaintiff Xianglian Li’s motion for attorney fees in connection with the withdrawal of the default of defendants Gary Chen, an individual; and California Orthopedic & Micro Surgery Institute, Inc. is GRANTED. The

court awards plaintiff total fees in the amount of one thousand dollars ($1,000.00), payable within thirty (30) days.

Plaintiff shall give notice.