Opinion
NOT TO BE PUBLISHED
San Francisco County Super. Ct. No. CGC-03-427661
Sepulveda, J.
A residential tenant, appellant Carole Marasovic, sued her former landlords for disposing of the tenant’s personal property following her eviction. The landlords retained respondent Robert Florian DeSmet to provide legal representation. Attorney DeSmet failed to provide any meaningful defense: he did not file necessary court papers, did not respond to discovery, and did not inform his clients of the proceedings. His clients suffered discovery sanctions as a result of Attorney DeSmet’s gross neglect.
Attorney DeSmet’s clients moved for relief from the sanctions, and submitted the attorney’s declaration admitting his neglect. (Code Civ. Proc., § 473, subd. (b).) The trial court granted defendants relief without directing Attorney DeSmet to pay reasonable compensatory legal fees and costs to the opposing party (appellant). Appellant’s motion to modify the order to provide fees and costs was denied. This appeal followed, in which appellant represents herself on appeal and respondent has not filed a brief. We reverse and remand with directions to award fees and costs.
FACTS
From 1996 to 2002, defendants Lun-Teh Yuen, Lun-Ming Yuen, and Lun-Shin Yuen (the Yuen brothers) rented a house to plaintiff and appellant Marasovic. In September 2002, the Yuen brothers, represented by respondent Attorney DeSmet, filed an unlawful detainer action against appellant. The parties negotiated a settlement and signed a stipulation for entry of judgment. The written stipulation for entry of judgment (as it appears in the record) states that (1) appellant would vacate the premises by December 4, 2002; (2) failure to vacate would allow entry of judgment and repossession of the premises; and (3) any claim for loss or damage to personal property left on the premises would “be determined by a small claims court action.” Appellant did not vacate the premises on the agreed date. The Yuen brothers filed the stipulated judgment and the sheriff’s department evicted appellant on December 26, 2002. Personal property remained on the premises. Lun-Teh Yuen claims he allowed appellant to recover some of her property but concedes he disposed of items from the house, over her protest.
Appellant claims the negotiated stipulation was physically altered before Attorney DeSmet filed it and that the filed document contains provisions to which she did not agree. We reference the stipulation only to provide historical context and do not rely upon its terms.
On December 24, 2003, appellant filed this action in superior court for conversion, violation of statutory rights, negligence, and intentional infliction of emotional distress. Appellant alleged the Yuen brothers wrongfully disposed of her personal property after evicting her from her rental home. The original complaint was not served, but appellant later filed a first amended complaint and served it in January 2005. The Yuen brothers retained respondent Attorney DeSmet to represent them. Attorney DeSmet filed an answer but took no other affirmative action until the case was called for trial. By that time, the Yuen brothers (unknowingly) had sanctions imposed upon them for failing to meet their pretrial discovery obligations.
Attorney DeSmet’s neglect was total. He failed to notify the Yuen brothers of the proceedings, failed to respond to discovery requests, and failed to file mandated documents. Among his omissions, he (1) did not file case management conference statements nor attend the conferences; (2) did not attend a settlement conference nor notify his clients of the conference; (3) did not attend a hearing on an order to show cause arising from his failure to comply with the settlement program; (4) did not respond to appellant’s motion to reopen discovery nor notify his clients of the motion; (5) did not forward discovery requests (interrogatories and requests for admissions) to his clients nor respond to the requests; (6) did not notify his clients of deposition notices nor attend the scheduled depositions; (7) did not respond to appellant’s motion to compel discovery nor notify his clients of the motion; (8) did not comply with an order compelling discovery nor inform his clients of the order; and (9) did not attend rescheduled depositions.
The failure to respond to discovery led the trial court to impose sanctions deeming appellant’s requests for admission admitted, and barring the Yuen brothers from presenting evidence at trial. The Yuen brothers did not learn of Attorney DeSmet’s neglect until trial. Attorney DeSmet telephoned Lun-Ming Yuen the night before trial and told him to be at court the next day. It was during the March 27, 2006 trial that Lun-Ming learned of the evidentiary sanctions.
The Yuen brothers were not permitted to present evidence at trial but the court gave them until April 18, 2006 to file a brief addressing a jurisdictional claim. The Yuen brothers contended that the case should be transferred to the small claims court based on the parties’ stipulation from the unlawful detainer action that any claim for loss or damage to personal property would “be determined by a small claims court action.”
After trial, the Yuen brothers confronted Attorney DeSmet about the evidentiary sanctions, and he admitted that he had committed malpractice. The Yuen brothers retained new counsel. On April 18, 2006, the Yuen brothers filed a motion on the jurisdictional issue retained from trial (regarding transfer to small claims court) and, alternatively, moved for relief from the discovery sanctions. (Code Civ. Proc., § 473, subd. (b).) In support of their motion for relief, the Yuen brothers submitted Attorney DeSmet’s declaration attesting to his neglect. DeSmet admitted his many omissions (noted above) and averred that “[t]he situation the Yuens now find themselves in is no fault of their own. I did not keep them apprised of filings, motions or discovery that took place (or failed to take place) in this action . . . .” DeSmet said he was suffering from depression and that his mental processes had been impaired by health problems and the stress of a divorce.
In June 2008, after the events at issue here, Attorney DeSmet resigned from the practice of law, with charges pending.
Appellant opposed the motion to transfer the case, and the motion for relief. On July 7, 2006, the trial court granted the Yuen brothers’ motion for relief from the discovery sanctions. (Code Civ. Proc., § 473, subd. (b).) The court found that the Yuen brothers “were victimized by their former attorney, Robert DeSmet, and that his gross affirmative misconduct constitutes inexcusable neglect warranting action by this court to prevent a miscarriage of justice.” The court vacated the orders that had deemed admitted appellant’s requests for admission and had imposed an evidentiary sanction precluding the Yuen brothers from presenting evidence at trial. The court granted the Yuen brothers leave to file a demurrer or amended answer, and cross-complaint; reopened discovery; and continued the trial date. Assignment of the case was ordered to remain in the same superior court department.
Proceedings continued in the superior court. In August 2006, the Yuen brothers filed an amended answer and cross-complaint. In April and May 2007, the parties filed case management conference statements, and a conference was held on May 16, 2007. On that date, the court granted the motion of appellant’s attorney to be relieved as counsel. In July 2007, the Yuen brothers filed notice that the parties had agreed to a settlement and would soon file a request for dismissal.
Appellant represented herself during most of the litigation. A substitution of attorney was filed on March 27, 2006 (the day of trial) appointing Attorney Matthew Kumin, and Attorney Kumin served as counsel of record until May 23, 2007.
On September 10, 2007, appellant filed a motion for modification of the court’s previous order granting relief: she asked for an award of reasonable compensatory legal fees and costs to be paid by the Yuen brothers’ former attorney, DeSmet, based on his affidavit of fault, which appellant asserted was the basis for relief granted on July 7, 2006. (Code Civ. Proc., § 473, subd. (b).) Appellant explained that her costs were a source of contention in settlement negotiations with the Yuen brothers, and that the Yuen brothers agreed that she could seek an award of costs from their former attorney. She served her motion upon Attorney DeSmet and the Yuen brothers. On September 17, 2007, after the motion was filed but before it was ruled upon, the parties filed a request for dismissal of the action, expressly reserving appellant’s right to seek costs and fees from Attorney DeSmet.
A hearing on appellant’s motion for imposition of costs and fees upon Attorney DeSmet was held on October 3, 2007, attended by DeSmet. On October 9, 2007, the court issued an order denying the motion to modify its previous order granting relief. The court found: “Plaintiff is not entitled to recover compensatory legal fees and costs as any claim by the plaintiff for damage to her personal property arising out of her eviction from the El Cerrito house owned by defendants should have been litigated in a small claims court,” based on the stipulation from the unlawful detainer action that property claims would be adjudicated in that court.
While it is not altogether clear from the record, it appears from the docket that the request for dismissal was granted on the day it was filed and the case dismissed. A notice of appeal contesting the order denying costs and fees was filed on November 7, 2007. Appellant, in propria persona, filed an opening brief. Respondent Attorney DeSmet did not file a respondent’s brief.
DISCUSSION
A. The denial of costs is reviewable on appeal
As a preliminary matter, we address our jurisdiction to review the challenged ruling denying costs under Code of Civil Procedure section 473, subdivision (b). The notice of appeal states that appellant appeals from the October 9, 2007 order denying appellant’s motion seeking modification of the court’s July 7, 2006 order granting relief to defendants, the Yuen brothers. Appellant’s brief fails to include the required explanation as to why the order appealed from is appealable. (Cal. Rules of Court, rule 8.204(a)(2)(B).)
Appeals are generally limited to a final judgment, postjudgment orders, and other specified orders. (Code Civ. Proc., § 904.1.) We have doubts about the appealability of the order specified in the notice of appeal. The challenged order is an October 9, 2007 denial of a modification motion—a motion seeking to modify an order from July 7, 2006. While the trial court denied the motion on the merits without deciding the procedural propriety of a motion to modify an order over a year old, we note that statutory motions for reconsideration have strict time limitations, far exceeded here. (Code Civ. Proc., § 1008, subd. (a).) Also, orders denying motions for reconsideration are generally held to be not appealable. (Annette F. v. Sharon S. (2005) 130 Cal.App.4th 1448, 1458-1459.)
Despite questions about the appealability of the order specified in the notice of appeal, we are satisfied that we have jurisdiction to review the trial court’s denial of costs. A notice of appeal must be liberally construed. (Cal. Rules of Court, rule 8.100(a)(2).) If we construe the notice to apply to the judgment of dismissal itself (apparently entered on September 17, 2007), then we have jurisdiction to review interlocutory orders like the original July 7, 2006 order granting relief. (See Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 680-681 [Code Civ. Proc., § 473 order that did not vacate a final judgment (thus was not immediately appealable) is reviewable on appeal from a post trial judgment].)
B. The trial court was not required to award fees and costs when granting relief, but its denial of fees and costs in this instance was an abuse of discretion
We therefore turn to the merits of the appeal: Did the trial court err in granting relief to defendants for discovery violations without imposing costs upon their negligent attorney, Robert DeSmet, who was responsible for the violations? (Code Civ. Proc., § 473, subd. (b) (hereafter, section 473).) We conclude that the imposition of costs was not mandated (as appellant claims) but permissible. We further conclude that the trial court abused its discretion in denying costs under the circumstances presented here of Attorney DeSmet’s egregious misconduct.
Section 473 “provides for two distinct types of relief—commonly differentiated as ‘discretionary’ and ‘mandatory’—from certain prior actions or proceedings in the trial court. ‘Under the discretionary relief provision, on a showing of ‘mistake, inadvertence, surprise, or excusable neglect,” the court has discretion to allow relief from a “judgment, dismissal, order, or other proceeding taken against” a party or his or her attorney. Under the mandatory relief provision, on the other hand, upon a showing by attorney declaration of “mistake, inadvertence, surprise, or neglect,” the court shall vacate any “resulting default judgment or dismissal entered.” ’ ” (Luri v. Greenwald (2003) 107 Cal App.4th 1119, 1124.) Motions seeking relief under the mandatory provision of section 473 must be “accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect.” (Code Civ. Proc., § 473, subd. (b).) The code further provides: “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.” (Code Civ. Proc., § 473, subd. (b).)
Appellant argues that she is statutorily entitled to an award of fees and costs because relief was granted based on Attorney DeSmet’s declaration of fault. Appellant is mistaken. While the trial court did not explicitly state the basis for its grant of relief, the record as a whole indicates that the court granted relief under section 473’s discretionary relief provision, not the mandatory relief provision that compels a fee and cost award. The statutory directive that a trial court shall award fees and costs relates to mandatory relief for defaults and dismissals, and is inapplicable here.
The motion here was not a motion for mandatory relief. Such a motion must specifically state that it seeks mandatory relief. (Luri v. Greenwald, supra, 107 Cal App.4th at p. 1125; Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 1997) ¶ 5:304.) Rather than seek mandatory relief, the Yuen brothers claimed surprise and excusable neglect. They submitted Attorney DeSmet’s declaration as proof that he had effectively abandoned them and, based on that abandonment, argued that the attorney’s misconduct should not be imputed to them. Positive misconduct by an attorney amounting to a severance of the attorney-client relationship provides grounds for relief under section 473’s discretionary provision. (Seacall Development, Ltd. v. Santa Monica Rent Control Bd. (1999) 73 Cal.App.4th 201, 205; Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial, supra, ¶ 5:355.)
We note, too, that the orders that were the subject of relief (orders imposing discovery sanctions) are not within the express terms of section 473’s mandatory provision. Courts have often narrowly construed section 473 to permit mandatory relief based on attorney neglect for defaults and dismissals exclusively, and not adverse orders generally, even if the orders are arguably analogous to defaults. (English v. IKON Business Solutions, Inc. (2001) 94 Cal.App.4th 130, 136-149; see Matera v. McLeod (2006) 145 Cal.App.4th 44, 63-68 [collecting cases with differing views]; see generally Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial, supra, ¶¶ 5:299.5-5:300.9.)
It is true that Attorney DeSmet submitted a declaration attesting to his neglect. But such a declaration does not necessarily invoke the mandatory provision of section 473. (Luri v. Greenwald, supra, 107 Cal App.4th at pp. 1124-1126.) An attorney may intend only to state facts warranting relief under section 473’s discretionary relief provision and not intend to accept responsibility for fees and costs with an affidavit of fault under the mandatory relief provision. (Luri at p. 1125.) Since the motion for relief was not a motion for mandatory relief based on an attorney affidavit of fault, the trial court was not required to direct Attorney DeSmet to pay appellant’s fees and costs.
The trial court did, however, have discretion to make a fee and cost award. (Rogalski v. Nabers Cadillac (1992) 11 Cal.App.4th 816, 823.) A court’s decision against awarding attorney fees is reviewed for an abuse of discretion. “ ‘ “We review the entire record, attentive to the trial court’s stated reasons in denying [or granting] the fees and to whether it applied the proper standards of law in reaching its decision. . . .” [Citation]’ ‘ “If it did, we then determine whether the application of that standard to the facts was within the scope of its discretion under the statute.’ ” (Harman v. City and County of San Francisco (2007) 158 Cal.App.4th 407, 418.)
The court’s stated reason for denying fees and costs shows use of an improper standard. The court said: “Plaintiff [Marasovic] is not entitled to recover compensatory legal fees and costs as any claim by the plaintiff for damage to her personal property arising out of her eviction from the El Cerrito house owned by defendants should have been litigated in a small claims court,” based on the stipulation from the unlawful detainer action that property claims would be adjudicated in that court.
This reasoning does not justify a denial of costs. In April 2006, defendants made two arguments: (1) that the case should have been brought in small claims court and should be transferred there; and (2) if not transferred, then relief should be granted in the superior court. The court adopted the second approach. It granted relief and retained jurisdiction in the superior court. Having granted relief from orders imposed as a result of Attorney DeSmet’s gross neglect, the court should have directed him to pay costs incurred as a result of his neglect. Even if appellant was wrong to file her case in superior court, the fact remains that Attorney DeSmet never moved to transfer the case to small claims court and instead allowed appellant to incur costs prosecuting her case in the superior court while grossly neglecting his obligations to his clients, opposing party, and the court. The neglectful attorney, not an opposing party like appellant, should pay for that neglect.
Accordingly, we reverse the order of the trial court granting relief under section 473 to the extent it omitted a fee and cost award, and remand the matter with directions to award appellant reasonable compensatory legal fees and costs upon timely and sufficient application for costs. Within 40 days after the clerk sends notice of issuance of the remittitur, appellant shall serve (upon Attorney DeSmet) and file with the trial court a motion for fees and a verified memorandum of costs claimed under section 473, and any costs claimed to have been incurred on appeal. (Cal. Rules of Court, rules 3.1700, 3.1702, 8.278.)
DISPOSITION
The July 7, 2006 order granting defendants relief under Code of Civil Procedure section 473, subdivision (b) for their former attorney’s neglect and abandonment is reversed to the extent it failed to direct that attorney, respondent Robert DeSmet, to pay appellant Carole Marasovic’s reasonable compensatory legal fees and costs. In all other respects, the order is affirmed and the judgment of dismissal is affirmed. Appellant shall recover costs incurred on appeal upon timely application in the trial court. (Cal. Rules of Court, rule 8.278(c)(1).)
We concur: Reardon Acting P.J., Rivera J.