Prieto v. Rivero

Opinion

COBEY, Acting P. J. Plaintiff, Geraldo Macias Prieto, appeals from a condition in the superior court order granting him, pursuant to Code of Civil Procedure section 473, relief from a default. The condition is that he pay defendant, Esperanza Rivero, $300 in attorney’s fees.

The appeal lies. (Code Civ. Proc., § 904.1, subd. (b); 6 Witkin, Cal.Procedure (2d ed. 1971) Appeal, pt. I, § 88, p. 4097.) For reasons that follow, we intend to modify the order under appeal and affirm it as modified.

Facts

Pursuant to Labor Code section 98.2, subdivision (a), defendant appealed from an order of the Labor Commissioner awarding plaintiff $1,125.63 from her. The appeal was duly set for trial on August 7, 1978, and the clerk of the superior court duly gave notice by mail of this setting to both parties to the appeal. (See Code Civ. Proc., § 594, subd. (b).)1 [277]Plaintiff received such notice on or about July 3, 1978, but he did not then realize that, pursuant to Labor Code section 98.4, the Labor Commissioner was going to represent him in the appeal.2 Apparently the attorney in the Labor Commissioner’s office in Los Angeles, to whom the appeal had been assigned, never received this notice or any other notice of the date of trial.3 Consequently the Labor Commissioner did not appear for the trial of the appeal on August 7, 1978. Plaintiff likewise did not appear because his car broke down in Los Angeles on his way back to Santa Barbara from Tijuana.

The superior court on August 7, 1978, granted judgment by default to defendant on the appeal in view of the nonappearance for trial of plaintiff.4 Defendant’s counsel refused the Labor Commissioner’s prompt request to set aside the default. The Labor Commissioner then moved, pursuant to the aforementioned Code of Civil Procedure section 473, for appropriate relief, and following a hearing of the motion the trial court granted it on condition that plaintiff pay defendant $300 in attorney’s fees.

Discussion

The trial court erred in making the attorney’s fees award under appeal. It is true that Code of Civil Procedure section 473 provides, in effect, that the court may condition the relief it grants under the section “upon such terms as may be just” and that such terms may quite properly include an award of attorney’s fees to the inconvenienced party. (See Daley v. County of Butte (1964) 227 Cal.App.2d 380, 395-396 [38 Cal.Rptr. 693]; Annot. (1952) 21 A.L.R.2d 863, 865.)