Opinion
A154212
12-21-2018
MATT MIRABELLA, Plaintiff and Appellant, v. CRISTINA HOLLOWAY, Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. RG15792269)
Plaintiff and appellant Matt Mirabella (Mirabella) appeals from the trial court's order granting a motion for sanctions under Code of Civil Procedure section 128.7 filed by defendant and respondent Cristina Holloway (Holloway). The court awarded Holloway $2,000 in sanctions against Mirabella's counsel based on Mirabella's unsuccessful section 473, subdivision (b) (Section 473(b)) motion that sought relief from the trial court's order granting Holloway's unopposed motion for attorney's fees following the sustaining of her demurrer to Mirabella's complaint. We affirm.
All undesignated statutory references are to the Code of Civil Procedure.
The underlying action relates to a trust created by Carmello Chiarenza (decedent). His daughter, Holloway, became trustee following his death. Mirabella was appointed trustee of a subtrust on behalf of decedent's son Kenneth Chiarenza. Mirabella brought suit against Holloway, individually and as trustee, alleging, among other things, that Holloway interfered with an amendment of the trust to direct more funds into the subtrust and that Kenneth Chiarenza was owed funds for services he provided before the decedent's death. Holloway demurrered to the complaint and the trial court sustained the demurrer and entered judgment against Mirabella. Mirabella appealed, and on September 19, 2018, this court reversed in Mirabella I, supra, A150616.
The facts in this paragraph are derived from this court's decision in Mirabella v. Holloway (Sept 19, 2018, A150616) [nonpub. opn.] (Mirabella I).
In February 2017, while the appeal on the demurrer was pending, Holloway filed a motion for attorney's fees in the trial court. Mirabella did not oppose the motion. In April 2017, the trial court awarded Holloway $42,490 in attorney's fees "because the contract sued upon contained an attorney's fee clause and the amount requested was reasonable."
Mirabella moved to "correct" the trial court's fee award to clarify that it applied to Mirabella only in his capacity as trustee. The trial court denied the motion, and Mirabella then moved under Section 473(b) for relief from the attorney's fee award. Mirabella argued the court had erred in granting the attorney's fees request because there was no relevant contract that provided for fees. The motion asserted that Mirabella "and his counsel did not oppose [Holloway's] cost bill here, because [Mirabella] reasonably believed his appeal stayed [Holloway's] attorney's fees claim and [Mirabella] had no objection to the remainder of [Holloway's] cost claim." On appeal, Mirabella asserts that he did not file an opposition to the request for attorney's fees because his counsel thought "any sensible court would see" that Holloway's request for fees "was a make-weight argument" that should be "reject[ed] out of hand." The trial court denied the motion, finding among other things that Mirabella's "explanation for his failure to oppose the Motion for Attorney's Fees or to contest the Tentative Ruling granting the motion does not meet the requirements set forth in" Section 473(b).
In February 2018, Holloway moved for sanctions under section 128.7. She argued, among other things, that Mirabella's Section 473(b) motion was "devoid of any evidentiary support" and was "not warranted by existing law or by any non-frivolous argument for" modification of existing law. In April, the trial court granted the motion and awarded Holloway $2,000 in sanctions against Mirabella's counsel, which was less than the $3,500 Holloway requested. The present appeal followed.
Section 473(b) provides in relevant part, "The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect." The party seeking relief bears the burden of showing " 'that due to some mistake, either of fact or of law, of himself or of his counsel, or through some inadvertence, surprise or neglect which may properly be considered excusable, the judgment or order from which he seeks relief should be reversed.' " (Hopkins & Carley v. Gens (2011) 200 Cal.App.4th 1401, 1410 (Hopkins).)
In the present case, the trial court imposed sanctions under section 128.7 based on Mirabella's unsuccessful motion under Section 473(b). Under section 128.7, "there are basically three types of submitted papers that warrant sanctions: factually frivolous (not well grounded in fact); legally frivolous (not warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law); and papers interposed for an improper purpose." (Guillemin v. Stein (2002) 104 Cal.App.4th 156, 167.) We review the sanctions order for an abuse of discretion. (Hopkins, supra, 200 Cal.App.4th 1419.)
On appeal, Mirabella devotes most of his argument to explaining why he had a meritorious argument that the trial court erred in granting attorney's fees under Civil Code section 1717. He mistakenly appears to believe that a colorable argument on that point means he could not be sanctioned under section 128.7. However, the merits of that argument are besides the point, because the court would only reach the merits if it granted Mirabella relief from his failure to oppose the fees motion, and that required a showing of an excusable reason for his failure to do so.
Mirabella presents almost no argument in his brief on appeal justifying his failure to oppose Holloway's motion for attorney's fees. He simply asserts his "failure to oppose the attorney's fee claim in the cost motion was the result of inadvertence, surprise or excusable neglect" because he (or his counsel) "belie[ved] that the court would follow existing law" regarding fees awards under Civil Code section 1717. But Mirabella presents no authority that a counsel's belief that an opposing party's request is entirely without merit is a reasonable basis to fail to file an opposition. The orderly process of law requires that parties present their legal arguments during the opportunities afforded to them; Mirabella failed to oppose Holloway's attorney's fees motion at his own risk.
Mirabella presents no authority or reasoned argument why his counsel's purported miscalculation about what the trial court would do in response to Holloway's fees motion was the type of mistake or excusable neglect that provides a basis for relief under Section 473(b). (Hopkins, supra, 200 Cal.App.4th at p. 1410.) Because Mirabella failed to present any non-frivolous basis to grant his motion for relief under Section 473(b), the trial court did not abuse its discretion in awarding sanctions under section 128.7. (Hopkins, at p. 1422 [affirming sanctions award where sanctioned party "made no attempt to articulate any 'mistake, inadvertence, surprise, or excusable neglect' that might furnish a basis for relief under [S]ection 473(b)"].)
DISPOSITION
The trial court's sanctions order is affirmed. Costs on appeal are awarded to respondent.
/s/_________
SIMONS, J. We concur. /s/_________
JONES, P.J. /s/_________
NEEDHAM, J.