The question of whether or not the trial court had jurisdiction to award costs under the circumstances presented is essentially one of law; thus, we conduct an independent review. ( Shisler v. Sanfer Sports Cars, Inc. (2008) 167 Cal.App.4th 1, 6 [ 83 Cal.Rptr.3d 771] ( Shisler); Salawy v. Ocean Towers Housing Corp. (2004) 121 Cal.App.4th 664, 669 [ 17 Cal.Rptr.3d 427].) I.
Gassner did file a motion to vacate. (See Shisler v. Sanfer Sports Cars, Inc. (2008) 167 Cal.App.4th 1, 5, fn. 2, 83 Cal.Rptr.3d 771 [motion under Code Civ. Proc., § 473 is a motion to vacate for purposes of extending time to appeal].) Moreover, she filed the motion on August 31, 2016—well within the time to appeal from the August 4, 2016 order.
) An appeal also may be taken from an order denying a motion to vacate a void judgment -- a judgment issued in the absence of fundamental jurisdiction -- or an order denying a motion to vacate a judgment obtained by extrinsic fraud. (Carr v. Kamins (2007) 151 Cal.App.4th 929, 933-934; accord, Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 1004, 1009; Shisler v. Sanfer Sports Cars, Inc. (2008) 167 Cal.App.4th 1, 5.) The appealability of motions to vacate brought under Code of Civil Procedure section 663 is the subject of conflicting authority.
(Cf. Shisler v. Sanfer Sports Cars, Inc. (2008) 167 Cal.App.4th 1, 10 [ 83 Cal.Rptr.3d 771] [acknowledging difference between "`substantive law which gives or declares the right`"and "procedural" law which governs how the right is enforced]; Richardson v. Walter Land Co. (1953) 118 Cal.App.2d 459, 464-465 [ 258 P.2d 42] [counterclaim statute is "procedural in character and simply denies a defendant relief in the designated circumstances. It does not wipe out or invalidate the obligation."].
An order denying a post-judgment motion for relief from a judgment under Code of Civil Procedure section 473, or denying a motion to vacate a void judgment, may be appealed separately even if the time has expired to appeal from the judgment itself. (Code Civ. Proc., § 904.1, subd. (a)(2); Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 1004, 1008-1009; Shisler v. Sanfer Sports Cars, Inc. (2008) 167 Cal.App.4th 1, 5 (Shisler).) Camacho’s motion was expressly brought under Code of Civil Procedure section 473 and argued that the default judgment was void.
” Shisler v. Sanfer Sports Cars, Inc., 167 Cal.App.4th 1, 10 (6th Dist. 2008) (citation omitted); accord City of Huntington Beach v. Becerra, 44 Cal.App. 5th 243, 268 (4th Dist. Div. 3 2020). Under this framework, evaluating the competency of an expert constitutes a procedural issue under California law because the expert's competency does not concern the giving or declaring of a right but instead concerns the method through which rights are enforced.
Thus, the CLRA fee-shifting "statutory provision requires the trial court to find that the plaintiff proceeded in subjective bad faith before it may award fees to a prevailing defendant." Shisler v. Sanfer Sports Cars, Inc., 167 Cal. App. 4th 1, 9 (2008). The party moving for attorneys' fees has the burden of proving that the plaintiff proceeded in subjective bad faith.
Thus, the CLRA fee-shifting "statutory provision requires the trial court to find that the plaintiff proceeded in subjective bad faith before it may award fees to a prevailing defendant." Shisler v. Sanfer Sports Cars, Inc., 167 Cal. App. 4th 1, 9 (2008)). The party moving for attorneys' fees has the burden of proving that the plaintiff proceeded in subjective bad faith.
"[T]his statutory provision requires the trial court to find that the plaintiff proceeded in subjective bad faith before it may award fees to a prevailing defendant." Shisler v. Sanfer Sports Cars, Inc., 167 Cal.App.4th 1, 9 (2008). The moving party, here Defendants Kormann and KRR, have the burden of proof.
Unlike lack of personal jurisdiction, however, a "lack of subject matter jurisdiction is a jurisdictional defect of the fundamental type. . . . where there is 'an entire absence of power to hear or determine the case."' Shisler v. Sanfer Sports Cars, Inc., 83 Cal. Rptr. 3d 771, 775 (Ct. App. 2008) (quotingAbelleira v. District Court of Appeal, Third District, 109 P.2d 942, 947 (Cal. 1941)). Thus, when the district court rendering a judgment lacks subject matter jurisdiction, the judgment is definitively void.