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sanantonbone · Oct 5, 2012, 01:53 PM

I am a defendant in an unlimited civil case in California. I got the judge to reverse her default judgement. The plaintiff is asking the court to grant attorney fees for the work done in opposition to my motion to have the default judgement reversed. He is citing as his authority CCP 473(b). The judge is asking for more information (authority), to make her decision. Specifically, " Is it appropriate (or not) for the Court to consider Defendant's financial situation when ruling on a discretionary motion for fees under CCP Sec. 473.

Fr_Chuck · Oct 5, 2012, 06:02 PM

Law school question ? I ask, since the wording does not sound like a actual case.

AK lawyer · Oct 5, 2012, 08:31 PM

"473.
...
(b) 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 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. ..."

Note the use of "may" in the first quoted sentence, and "shall" in the last. It's clear that while the court has discretion to set aside the default, if it does so, it has to award reasonable fees and costs. So no, it doesn't depend on your fiancial situation.

ScottGem · Oct 6, 2012, 04:58 AM

I may be wrong here, but I thought the principle here was essentially "to the victor belong the spoils". In other words, courts award attorney fees to the winner. The idea is that if one party has to bring legal action against another, the party in the right (the winner) should be compensated for having to bring legal action.

So, as I understand it. A judge awarded a default judgment to the plaintiff. You successfully petitioned the court to reverse the default judgment. This would indicate that there was something wrong with default judgment. Now the attorney wants you to pay legal fees because he did something wrong? This doesn't make sense to me.

AK lawyer · Oct 6, 2012, 07:07 AM

Originally Posted by ScottGem

... This would indicate that there was something wrong with default judgment. Now the attorney wants you to pay legal fees because he did something wrong? This doesn't make sense to me.

The other side's attorney didn't do anything wrong. OP (or OP's lawyer) made a mistake which allowed the default to be entered. OP successfully asked the court for relief from the consequences of this mistake.

ScottGem · Oct 6, 2012, 07:22 AM

Originally Posted by AK lawyer

The other side's attorney didn't do anything wrong. OP (or OP's lawyer) made a mistake which allowed the default to be entered. OP sucessfully asked the court for relief from the consequences of this mistake.

OK, Since 473 specifically cites "through his or her..." issue, then you are assuming the plaintiff is citing this clause because it was the OP's fault that the default was issued. Makes sense.

I also agree that financial status should have no bearing.

sanantonbone · Oct 6, 2012, 05:19 PM

Thanks for your answer and time. It does help.

sanantonbone · Oct 6, 2012, 05:20 PM

Thanks for your answer. It does help me form my response.

sanantonbone · Oct 6, 2012, 05:27 PM

The trial hasn't happened yet, in December, therefore there is no winner yet. What I did win was my motion to vacate the default. Now plaintiff wants attorneys fees paid to him because of the "extra work" he did in opposition to my motion to vacate judgement. I am in pro per.

Plaintiff's lawyer did nothing wrong. Judge vacated default because of the desire in California to have all civil trials decided on the merits rather than default.

Judge is asking for authority stating that she has to take into account defendant in pro per with fee waivers.

AK lawyer · Oct 6, 2012, 07:05 PM

Originally Posted by sanantonbone

...
Plaintiff's lawyer did nothing wrong. ...

No, I'm assuming that defendant or defendant's lawyer did something wrong.

Why were you defaulted?

Originally Posted by sanantonbone

...
Judge is asking for authority stating that she has to take into account defendant in pro per with fee waivers.

An appeals court decision, in other words. I doubt that you are going to find one. Indigent defendants don't often appeal.

And as I said before, the statute is clear. So there would have been no grounds for appeal.

sanantonbone · Oct 6, 2012, 07:23 PM

[QUOTE=AK lawyer;3291595]No, I'm assuming that defendant or defendant's lawyer did something wrong.

Why were you defaulted?

I was defaulted because my answer was late. I also had an application for fee waivers included with my answer. There is also a question of continuances. I had a court date calendared which was continued. Then continued again. After the second continuance, the judge signed off on the default. I don't know why there were two continuances, but my thinking was, I have a court date and I will tell the judge that I tried to answer and I was applying for fee waivers. Of course, I never got to tell the judge that because of the continuances.

I motioned to have a hearing on fee waivers and motion to vacate default judgement. I won both motions. Plaintiff is now motioning to have attorney's fees paid by me because of motion to vacate by me, citing extra work he had to do and citing his authority in 473b.

Judge wants to know if there is any authority that states, she has to consider defendant's indigent status when making her decision?

An appeals court decision, in other words. I doubt that you are going to find one. Indigent defendants don't often appeal.

This isn't an appeals case. Default judgement was vacated and trial set for December 14th.

AK lawyer · Oct 6, 2012, 08:27 PM

Originally Posted by sanantonbone

...
Judge wants to know if there is any authority that states, she has to consider defendant's indigent status when making her decision?

Originally Posted by me

An appeals court decision, in other words. I doubt that you are going to find one. Indigent defendants don't often appeal.

This isn't an appeals case. Default judgement was vacated and trial set for December 14th.

The judge is asking for "authority". I was telling you that "authority" usually means a published opinion by an appellate court.

I know your case isn't an appeals case. But I was trying to explain to you why there isn't any such "authority" such as that for which the judge asked.

sanantonbone · Oct 6, 2012, 10:24 PM

Thanks. You have been very helpful.

If there is no authority to cite that a judge should take my indigence into her decision, could an argument also be made that there is no authority that says that she may take it into consideration?

ScottGem · Oct 7, 2012, 05:14 AM

Originally Posted by sanantonbone

Thanks. You have been very helpful.

If there is no authority to cite that a judge should take my indigence into her decision, could an argument also be made that there is no authority that says that she may take it into consideration?

Yes, but judges, especially at lower levels, are reluctant to set precedent.