Opinion
NOT TO BE PUBLISHED
Original proceedings; petition for a writ of mandate to challenge an order of the Superior Court of Orange County No. 04CC06374, Richard W. Luesebrink, Judge. (Retired judge of the Orange Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Petition granted.
Chambers, Noronha & Kubota and Gary L. Chambers for Petitioners Brian Wilson, Michelle Wilson, Kevin O’Neal, Veronica O’Neal, Rick Kurland, Mary Kurland and Carole Barton.
Geiger & Keen and Timothy J. Kooy for Petitioners Jon Nunes, Kelly Nunes, Vincent Bond, Jeanne Bond, Ernesto Esplana and Marlyn Esplana.
No appearance for Respondent.
Gladych & Associates and John A. Gladych for Real Parties in Interest John A. Gladych and Gladych & Associates, Inc.
Weisenberg & Nelson and John W. Nelson for Real Parties in Interest Donovan Westerfeld, Debbie Westerfeld and Homeowners Construction Defect Group, LLC.
OPINION
FYBEL, J.
Introduction
Petitioners Brian Wilson, Michelle Wilson, Rick Kurland, Mary Kurland, Carole Barton, Kevin O’Neal, Veronica O’Neal, Jon Nunes, Kelly Nunes, Vincent Bond, Jeanne Bond, Ernesto Esplana, and Marlyn Esplana (collectively, petitioners) obtained a judgment against Donovan Westerfeld, Debbie Westerfeld, and Homeowners Construction Defect Group, LLC (collectively, Defect Group), for negligence. That’s when the case became the legal equivalent of Mr. Toad’s Wild Ride. The judgment failed to award petitioners statutory damages and attorney fees under Code of Civil Procedure section 1029.8. Although the trial court initially stated it would amend the judgment to make provision for such damages and attorney fees, the court later refused to rule on a motion to set aside the judgment or a motion for an award of attorney fees, because the court believed it did not have jurisdiction over the case, due to a pending appeal. The appeal, however, had been filed by another set of defendants, John A. Gladych and Gladych & Associates, Inc. (collectively, Gladych), and the trial court retained jurisdiction over the severable portion of the judgment involving Defect Group.
Despite orders from this court making clear that the trial court did have jurisdiction over the portion of the judgment involving Defect Group, the trial court failed to set aside or amend its incorrect order denying its own jurisdiction. When the trial court did finally consider petitioners’ motion to set aside the judgment and motion for an award of attorney fees, it made further legal errors in again concluding it did not have jurisdiction over those motions. Finally, the trial court denied a motion for reconsideration, abusing its discretion by relying on a factually erroneous belief that petitioners failed to bring this appellate court’s orders to the trial court’s attention, and on the legally erroneous belief that the remittitur issued after Gladych’s appeal only gave the trial court jurisdiction over the limited issue of costs on the Gladych appeal.
We grant the petition, and direct the issuance of a writ of mandate to the trial court and order the trial court to (1) set aside the judgment and enter a corrected judgment to provide that petitioners are entitled to recover statutory damages from Defect Group pursuant to Code of Civil Procedure section 1029.8; and (2) consider petitioners’ motion for an award of attorney fees on the merits.
Procedural History
Petitioners sued Defect Group for fraud and negligence, and sued Gladych for legal malpractice and breach of fiduciary duty. After a bench trial, the court found in favor of petitioners on the claims against Gladych, and in favor of petitioners and against Defect Group on the negligence claim. Judgment was entered on December 19, 2007.
Petitioners filed a motion to vacate the judgment and enter a new and different judgment, and to amend the statement of decision. Petitioners argued the judgment should be amended to permit them to recover statutory damages and attorney fees against Defect Group under Code of Civil Procedure section 1029.8, because Defect Group had engaged in the unauthorized practice of law. The trial court issued a tentative ruling on February 8, 2008, indicating its intention to grant petitioners’ motion, determine that Defect Group had violated Code of Civil Procedure section 1029.8, and order that the judgment be amended to award each petitioner $10,000 for that violation. At the hearing on petitioners’ motion, the trial court agreed to reconsider the language in the statement of decision, and took the motion under submission.
At the hearing on Gladych’s motion to tax costs, the trial court offered petitioners’ counsel the opportunity to submit proposed additional language to be included in the statement of decision. The court also advised the parties it would not sign a final judgment until after petitioners had filed their motion for an award of attorney fees. Petitioners’ counsel opted not to submit any proposed additional language for the statement of decision.
On March 14, 2008, the trial court entered a minute order reading, in relevant part: “The Court declines to issue further amendments to the current Statement of Decision, as it was amended, and that final Statement of Decision is deemed effective today.” The minute order did not specifically mention the tentative ruling.
Gladych filed a notice of appeal from the judgment and the March 14 minute order. The notice of appeal contains the following language: “This Notice of Appeal is being filed today to protect the right to appeal, although it is the parties’ understanding that the Trial Court vacated the Judgment After Court Trial on February 8, 2008. Unfortunately, no order from the Trial Court clearly states that the previous judgment was vacated. Contrary to the requirements of the California Rules of Court, no new judgment was entered within 15 days after the Trial Court determined that its previous Statement of Decision was final.”
On April 22, 2008, the trial court issued a minute order correcting the February 8 minute order nunc pro tunc to reflect that the judgment would be amended to award each petitioner $10,000 for Defect Group’s violation of Code of Civil Procedure section 1029.8.
Petitioners filed a motion for an award of attorney fees against Defect Group, pursuant to Code of Civil Procedure section 1029.8, on May 21, 2008. Defect Group objected to the motion for an award of attorney fees solely on the ground that the motion was untimely. Defect Group did not challenge petitioners’ statutory right to attorney fees, or the reasonableness of the fees requested.
On June 30, 2008, petitioners filed a motion in this court to dismiss Gladych’s appeal. That motion was denied, and Gladych’s appeal proceeded.
On July 28, 2008, petitioners filed a motion in the trial court to (1) vacate the April 22 minute order and the amended judgment the minute order purported to correct; (2) enter a corrected order; and (3) enter a new judgment. Gladych opposed the motion; Defect Group joined in Gladych’s opposition. The opposition argued the motion was untimely, and the trial court lacked jurisdiction to consider it, in light of Gladych’s appeal from the judgment.
At a hearing on August 29, 2008, the trial court declined to rule on the motion for an award of attorney fees or the motion to vacate the minute order and judgment, on the ground it lacked jurisdiction due to the pendency of Gladych’s appeal: “The Court’s intent was to hold the new judgment, hear post trial motions and sign the new judgment to include all defendants, fees and costs in the final form; however due to the appeal, this Court lacks jurisdiction to sign said judgment and to rule on post trial motions.... Court to defer ruling on [petitioners]’ Motion for Attorneys Fees and Motion to Set Aside Void Order and Amended Judgment pending resolution of the appeal and return of this case from the Court of Appeal.”
Petitioners filed a petition for a writ of mandate in this court, asking that the trial court be compelled to determine the motion to set aside and the motion for an award of attorney fees on their merits. This court issued an order in the Gladych appeal, providing in relevant part, as follows: “The perfecting of the instant appeal stays proceedings that are embraced or affected by the severable part of the judgment that is on appeal by the Gladych defendants. [Citation.] [¶]... The [Defect Group] defendants have not filed a notice of appeal. There is no automatic stay of any proceedings in the trial court as to these nonappealing defendants.” We specifically ordered that the order be served on the trial court. We thereafter denied the petition for a writ of mandate as moot. Gladych’s appeal proceeded, and this court affirmed the judgment against Gladych. The opinion was later modified, without a change in judgment, and Gladych’s petition for rehearing was denied.
In the meantime, petitioners’ attempts to get the motion to set aside and the motion for an award of attorney fees on calendar were denied by the trial court, due to the pendency of Gladych’s appeal. Ultimately, the trial court granted petitioners’ ex parte application and set the motions for hearing in February 2010. After the hearing, the trial court denied both motions. On February 26, 2010, the court clerk served the minute order on the parties by mail.
On March 2, 2010, the remittitur issued in the Gladych appeal. On March 8, petitioners filed a motion for reconsideration of the February 25 order. No opposition was filed to the motion for reconsideration. On its own motion, the trial court continued the motion for reconsideration to coincide with a motion to tax costs on appeal that had been filed by Gladych. After the hearing, the court took the motion for reconsideration under submission. On June 18, 2010, the trial court denied the motion for reconsideration.
Judge W. Michael Hayes presided over the bench trial, and issued all orders discussed in the text through September 2008. Presiding Judge Frederick P. Horn granted the ex parte application to set the motions for hearing. Judge Richard W. Luesebrink issued the orders denying the motion to set aside the judgment, the motion for an award of attorney fees, and the motion for reconsideration.
On July 16, 2010, petitioners filed a notice of appeal from the June 18 order denying the motion for reconsideration, from the February 25 order denying the underlying motions, and from any other related order.
Discussion
I.
Timeliness of the notice of appeal
The notice of appeal was filed more than 60 days after notice of entry of the February 25, 2010 order was served. (Cal. Rules of Court, rule 8.104(a)(1).) Because petitioners’ motion for reconsideration was filed during that 60 days, however, the time to appeal from the February 25 order was extended until “the earliest of: [¶] (1) 30 days after the superior court clerk or a party serves an order denying the motion or a notice of entry of that order; [¶] (2) 90 days after the first motion to reconsider is filed; or [¶] (3) 180 days after entry of the appealable order.” (Cal. Rules of Court, rule 8.108(e).) The earliest date under California Rules of Court, rule 8.108(e) would be 90 days after the motion for reconsideration was filed—June 7, 2010. Petitioners’ notice of appeal, filed July 16, 2010, was therefore untimely. We invited the parties to submit supplemental letter briefs, which petitioners and Gladych did, addressing whether the appeal was timely, and, if not, whether there were any means by which this court could nevertheless address the case on its merits.
Petitioners first argue that the June 18, 2010 order denying the motion for reconsideration is a separately appealable postjudgment order. The weight of authority, however, holds that an order denying a motion for reconsideration is not an appealable order. (Annette F. v. Sharon S. (2005) 130 Cal.App.4th 1448, 1459; Reese v. Wal Mart Stores, Inc. (1999) 73 Cal.App.4th 1225, 1242; Hufft v. Horowitz (1992) 4 Cal.App.4th 8, 12, fn. 1.)
Petitioners next contend that the June 18 order is separately appealable because it is tantamount to a postjudgment order denying a motion to vacate a previous order that is claimed to be void. As the appellate court explained in 311 South Spring Street Co. v. Department of General Services (2009) 178 Cal.App.4th 1009, 1014: “‘[A]n order denying a motion to vacate a judgment is generally not appealable; otherwise, an appellant would receive “either two appeals from the same decision, or, if no timely appeal has been made, an unwarranted extension of time in which to bring the appeal.” [Citation.] In this case, the postjudgment order did not decide new issues, but merely “affirmed” the validity of the judgment. Thus, it initially appears that appeal from the postjudgment order is precluded. [¶]... [H]owever, an exception to this general rule applies when the underlying judgment is void. In such a case, the order denying the motion to vacate is itself void and appealable because it gives effect to a void judgment.’ [Citation.]” The problem with this argument is that petitioners fail to explain how a motion for reconsideration of a motion to vacate a judgment can itself be tantamount to a motion to vacate the judgment. Further, there is no question that the motion for reconsideration was just that. It was brought under Code of Civil Procedure section 1008, and was based on the fact that the circumstances had changed since the order denying the motion to vacate had been filed (because the remittitur had issued from this court in appeal No. G040292).
Petitioners next request that if this court finds the appeal is not timely, it reinstate their previous writ petition, consolidate this proceeding with that writ proceeding, and deem the parties’ appellate briefs to be supplements to the filings in the previous proceeding. An appellate court has the authority to reinstate a writ proceeding that has been dismissed. (Mattz v. Superior Court (1988) 46 Cal.3d 355, 361.) This authority is generally used when the writ proceeding was dismissed due to a parties’ failure to timely file a brief, etc., and the defaulting party provides good cause for its failure. Petitioners have not cited us to any case in which the court’s authority was used in the manner they suggest here.
This court does, however, have the discretion to construe petitioners’ appeal as a petition for a writ of mandate from the order denying petitioners’ motion for reconsideration, and we choose to exercise that discretion in this case. (Black Diamond Asphalt, Inc. v. Superior Court (2003) 114 Cal.App.4th 109, 114 115.) This case meets the criteria the California Supreme Court has established for treating an appeal from a nonappealable order as a petition for an extraordinary writ. (Morehart v. County of Santa Barbara (1994) 7 Cal.4th 725, 745 747.) We do so because the briefs and the record before this court contain, in substance, all the elements required for an original mandate proceeding; there are extraordinary circumstances justifying the exercise of this court’s discretionary power; and real parties in interest will suffer no prejudice if we address the merits of the parties’ dispute. (Ibid.)
II.
The trial court erred in determining it lacked jurisdiction over the motion to set aside and the motion for an award of attorney fees.
We review the order denying petitioners’ motion for reconsideration for abuse of discretion. (County of Los Angeles v. James (2007) 152 Cal.App.4th 253, 256.) The legal issues underlying the denial of the motion for reconsideration, however, are subject to de novo review. “The question of a trial court’s jurisdiction is a pure question of law, as is the determination of the legal basis for an award of attorney fees. Accordingly, both issues are subject to our independent review. [Citations.]” (Shisler v. Sanfer Sports Cars, Inc. (2008) 167 Cal.App.4th 1, 6.)
The trial court’s notice of ruling regarding the order denying the motion to set aside the judgment and the motion for an award of attorney fees reads, in relevant part, as follows: “The Motion for Award of Attorneys Fees is denied since the Court of Appeal[] determined that the effective and only Judgment in this action was entered on December 19, 2007 and neither the December 19, 2007 Judgment, nor the Opinion by the Court of Appeal references attorneys’ fees. Therefore, this Court has no further jurisdiction to rule on this Motion. [¶]... Likewise, with the Court of Appeal’s affirmance of the December 19, 2007 Judgment, it is this Court’s conclusion that it has no further jurisdiction to rule in this Motion [to set aside the judgment].”
The trial court’s notice of ruling on the order denying the motion for reconsideration reads in relevant part as follows: “The Court of Appeal’s orders of February, 2009 are not new facts, circumstances, or law, within the meaning of Code of Civ. Proc. sec. 1008. These orders must have been known to moving parties at the time they set their Motions to Set Aside Void Order and Void Amended Judgment, and to Enter Corrected Order and new Judgment and for Attorney’s Fees for hearing in 2010. [Petitioners] submitted the papers they first filed in 2008, without amendment. Moving parties have not explained why they didn’t bring these orders to the Court’s attention sooner, as they are required to do. They have not shown reasonable diligence. [¶] As to the Remittitur of February 25, 2010, it provides this Court with limited jurisdiction to hear motions related to [petitioners’] recovery of costs on appeal, only.”
The trial court abused its discretion in denying the motion for reconsideration. The court faulted petitioners for failing to bring to its attention this court’s February 2009 orders. In addition to the fact that the clerk of this court served a copy of both the February 9 and February 25 orders on the trial court, petitioners brought the orders to the trial court’s attention through their ex parte application for an order resetting for hearing the motion to set aside and the motion for an award of attorney fees. This court’s orders were attached to that ex parte application, and the basis for the application was that, “[b]ased on Orders from the Court of Appeal, these Motions are now ripe for resetting and ruling.” The trial court (through a different judicial officer than the one who later ruled on the motion for reconsideration) granted the ex parte application “having read and considered the papers.”
On our own motion, we augment the record on appeal with the minute order, filed January 21, 2010, in Wilson v. Quintrall (Super. Ct. Orange County, No. 04CC06374). (Cal. Rules of Court, rule 8.155(a)(1)(A).) We also take judicial notice of the order, with proof of service attached, filed February 25, 2009, in Wilson v. Superior Court (Ct. App., Fourth Dist., Div. Three, No. G041151). (Evid. Code, §§ 452, subd. (d), 459, subd. (a); Cal. Rules of Court, rule 8.252(a).)
In August 2008, when the trial court first made its erroneous assumption that it lacked jurisdiction to consider petitioners’ motions due to the pendency of Gladych’s appeal, the court’s order read, in part: “No more additional briefing will be taken by the Court. Court to defer ruling on [petitioners]’ Motion for Attorneys Fees and Motion to Set Aside Void Order and Amended Judgment pending resolution of the appeal and return of this case from the Court of Appeal.” Petitioners can hardly be faulted by the trial court for complying with the earlier order.
As to the trial court’s assumption that the remittitur only permitted it to consider the recovery of costs on appeal, the decidedly irregular procedural background of this case cannot be overlooked. The last order of the trial court addressing its jurisdiction while part of the case was on appeal was in August 2008, when the court concluded it lacked jurisdiction to rule on any posttrial motions until the remittitur issued. Despite the clear orders from this court explaining why that conclusion was erroneous, the trial court never modified, amended, corrected, or set aside its August 2008 order. Under these circumstances, the issuance of the remittitur opened up the trial court’s jurisdiction on all matters it had previously refused to consider due to its erroneous belief it lacked jurisdiction.
The order denying the motion to set aside the judgment and the motion for an award of attorney fees contained clear and significant errors of law that the trial court could and should have corrected when presented with the motion for reconsideration; the trial court erred in failing to do so. In the order denying the motions to set aside and for attorney fees, the trial court concluded that this court’s affirmance of the judgment based on Gladych’s appeal meant that the trial court had no jurisdiction over posttrial motions directed to the severable portion of the judgment affecting Defect Group. This conclusion is directly contrary to this court’s earlier orders, and contrary to the law. The trial court also concluded that because neither the original judgment nor this court’s opinion affirming the judgment against Gladych referenced attorney fees, the trial court was precluded from awarding such fees to petitioners against Defect Group. As noted ante and in our February 9 and 25 orders, only the portion of the severable judgment against Gladych was before this court in the previous appeal. Our opinion did not reference attorney fees sought against another party that was not a party to that appeal; the trial court erred in basing its decision on that ground. The whole point of the motion to set aside the judgment and enter a new judgment was to allow for an award of attorney fees. The trial court’s reliance on the lack of a correct judgment to fail to correct the judgment was error.
Any modifications or amendments to the judgment will not affect Gladych. The judgment as to Gladych is final, as petitioners concede in their appellate briefs.
III.
The amount of attorney fees to which petitioners are entitled under Code of Civil Procedure section 1029.8 should be considered in the first instance by the trial court.
Petitioners ask this court to award them their requested attorney fees under Code of Civil Procedure section 1029.8, subdivision (a), which provides, in relevant part: “Any unlicensed person who causes injury or damage to another person as a result of providing goods or performing services for which a license is required under... Division 3 (commencing with Section 5000)... of the Business and Professions Code... shall be liable to the injured person for treble the amount of damages assessed in a civil action in any court having proper jurisdiction. The court may, in its discretion, award all costs and attorney’s fees to the injured person if that person prevails in the action.” The licensing of attorneys falls within division 3 of the Business and Professions Code. The trial court found in its April 22, 2008 minute order that Defect Group had violated Code of Civil Procedure section 1029.8; nowhere in the appellate record do we find any indication Defect Group has ever challenged that finding for lack of substantial evidence.
The only argument raised by Defect Group against an award of attorney fees is that the motion was not timely. A motion for an award of attorney fees must be brought within the time to appeal from the judgment. (Cal. Rules of Court, rule 3.1702(b)(1).) In this case, petitioners had no right to seek attorney fees under Code of Civil Procedure section 1029.8 until the trial court issued its April 22 minute order finding that Defect Group had violated that code section. If that minute order was an amendment to the judgment, then the motion for an award of attorney fees was timely filed on May 21, 2008. If that minute order did not effect an amendment to the judgment, then the time to file a motion for an award of attorney fees under section 1029.8 has not yet begun to run. In any event, the motion was not untimely.
Petitioners ask this court to award them attorney fees in the total amount of $595,125. An award of attorney fees under Code of Civil Procedure section 1029.8, subdivision (a) is discretionary, and the issue of attorney fees has never been considered on its merits by the trial court. It is for the trial court to consider the appropriate amount of attorney fees in the first instance.
Disposition
The petition for a writ of mandate is granted. Let a peremptory writ of mandate issue directing the trial court to (1) set aside the judgment and enter a corrected judgment to provide that petitioners are entitled to recover statutory damages from Defect Group pursuant to Code of Civil Procedure section 1029.8; and (2) consider petitioners’ motion for an award of attorney fees on the merits. No other portion of the judgment against Defect Group shall be affected by the writ of mandate. The severable portion of the judgment in favor of petitioners and against Gladych shall not be affected by the writ of mandate. Petitioners to recover costs incurred in this proceeding.
WE CONCUR: RYLAARSDAM, ACTING P. J.ARONSON, J.