Marini v. Municipal Court

• Decision Date: 14 December 1979
• Citation: 99 Cal.App.3d 829,160 Cal.Rptr. 465
• Parties: Henry Steven MARINI, Plaintiff and Respondent, v. The MUNICIPAL COURT FOR the SANTA CRUZ JUDICIAL DISTRICT OF SANTA CRUZ COUNTY, Defendant and Appellant. Civ. 45834.
• Court: California Court of Appeals Court of Appeals

Page 465

160 Cal.Rptr. 465

99 Cal.App.3d 829

Henry Steven MARINI, Plaintiff and Respondent, v. The MUNICIPAL COURT FOR the SANTA CRUZ JUDICIAL DISTRICT OF SANTA CRUZ COUNTY, Defendant and Appellant.

Civ. 45834.

Court of Appeal, First District, Division 1, California.

Dec. 14, 1979.

Hearing Denied Feb. 14, 1980.

Clair A. Carlson, County Counsel of Santa Cruz County by A. Terry Slocum, Asst. County Counsel, Santa Cruz, for defendant and appellant.

Perry E. Olsen, Watsonville, for plaintiff and respondent.

THE COURT: ^*

The Municipal Court for the Santa Cruz Judicial District of Santa Cruz County (hereafter Municipal Court) appeals from an order of the Superior Court of Santa Cruz County (hereafter Superior Court), made after an appealable judgment (Code Civ.Proc., § 904.1, subd. (b)), ordering the County of Santa Cruz to pay $1,500 on account of attorney fees to respondent Henry Steven Marini. We reverse.

Respondent had been charged in Municipal Court with a violation of Vehicle Code section 23102, subdivision (a) (driving under the influence of intoxicating liquor), and had sought admittance to a preconviction diversion and treatment program for drinking drivers which had been instituted in Santa Cruz County by the district attorney.

The local program, based neither in statute nor in ordinance, was available to persons charged with driving under the influence of intoxicating liquor. Defendant and counsel were required to sign a stipulation and waiver by which defendant effectively waived his constitutional rights and agreed to submit the charges for a determination of guilt or innocence on the basis of the arrest report and the results of blood-alcohol testing. Municipal Court would be asked to continue the matter for one year. During the year, defendant would undergo treatment provided by a contracting firm at defendant's expense. Should defendant fail to complete the year of treatment he would be returned to court and the matter submitted under the original charges for determination based on his stipulation. Should defendant complete the year of treatment, the charge would be reduced to reckless driving and defendant would plead guilty to that charge.

Shortly before respondent was charged, a new statewide statute authorizing postconviction programs of treatment for drinking drivers (Stats.1977, ch. 890, pp. 2663-2670, codified primarily at Welf. & Inst.Code, § 19975.01 et seq., ultimately based on 1977 Senate Bill 38 and commonly known as SB 38) went into effect. SB 38 authorized treatment programs which, like the local program, would provide for a year of rehabilitative treatment and would permit a repeat violator of Vehicle Code section 23102 to avoid the mandatory jail term and license suspension otherwise incident to second and subsequent offenses; but unlike the local program, an SB 38 program (available only After conviction) would not keep the new section 23102 charge off the driver's record.

Municipal Court received an opinion from the California Attorney General to the effect that the local program was preempted by SB 38. When respondent and the district attorney requested a one-year continuance to permit respondent to participate in the local program, Municipal Court took the position that the local program was preempted and denied the continuance.

Respondent, and another individual whose circumstances were similar, then separately petitioned Superior Court for a writ of mandate to compel Municipal Court to grant the continuances. The petitions were consolidated and the Superior Court concluded that SB 38 did Not preempt the local program, reasoning that the Legislature did not intend to preempt local treatment programs and preemption would have violated the constitutional principle of separation of powers. Accordingly, Superior Court ordered Municipal Court "to exercise its discretion, in light of the ruling embodied herein, as to whether or not to grant a continuance . . .."

These rulings were embodied in a judgment of Superior Court which was entered on May 11, 1979. Notice of entry was mailed by the clerk on May 12, 1978. Respondent filed a memorandum of costs on May 12, 1978; the memorandum contained no claim for attorney fees. On July 11, 1978, the 60th day after mailing of notice of entry, respondent moved for an order awarding attorney fees upon the "private attorney general" theory approved by the California Supreme Court in Serrano v. Priest (1977) 20 Cal.3d 25, 141 Cal.Rptr. 315, 569 P.2d 1303 (hereafter Serrano III ) and codified in Code of Civil Procedure section 1021.5. ¹ Municipal Court did not appeal from the judgment. In September 1978, Superior Court made and entered the attorney-fee order appealed from.

1. Timeliness of motion and order.

1 Municipal Court preliminarily contends that Superior Court could not grant respondent's attorney-fee motion for two procedural reasons: Because respondent did not comply with the procedures for claiming taxable costs, and (alternatively) by the time Superior Court purported to act on the motion, its judgment had become "final" and no further jurisdiction to order attorney fees existed.

It has been held that attorney fees awarded pursuant to statute are costs (T.E.D. Bearing Co. v. Walter E. Heller & Co. (1974) 38 Cal.App.3d 59, 62, 112 Cal.Rptr. 910). In general, costs must by claimed by memorandum no later than 10 days after entry of judgment (Code Civ.Proc., § 1033). But section 1021.5, pursuant to which the attorney fees were awarded, clearly provides a special motion procedure plainly intended to be initiated after the result of the action is known but subject to no express time limit. The motion procedure sharply distinguishes a claim for fees under section 1021.5 from an ordinary costs claim which is made not by motion but by memorandum and which is brought to hearing (if at all) not by the claimant but by the adversary's motion to tax (Code Civ.Proc., § 1033). In our view the more specific provisions of section 1021.5 control the more general procedure described in section 1033 (cf. Estate of Kramme (1978) 20 Cal.3d 567, 576, 143 Cal.Rptr. 542, 573 P.2d 1369). We also note that the trial court has broad power to permit deviations from section 1033 (cf., e. g., Pollard v. Saxe & Yolles Dev. Co. (1974) 12 Cal.3d 374, 380-381, 115 Cal.Rptr. 648, 525 P.2d 88). Respondent did not waive his fees claim by failing to include it in his costs memorandum.

Municipal Court contends, alternatively, that Superior Court lost jurisdiction to award attorney fees when time for appeal from the judgment expired. Respondent's motion was filed on the last day of the appeal period; there was no appeal from the judgment; Superior Court made its attorney-fee order two months later. It is the general rule that "when, by lapse of time for appeal or other direct attack on the judgment . . . it becomes final, the cause is no longer pending and the court has no further jurisdiction of the subject matter." (1 Witkin, Cal. Procedure (2d ed. 1970) Jurisdiction, § 218, p. 751.) But the concept of finality of trial court judgments, and the effect of such finality upon the court's subject-matter jurisdiction, are rendered elastic by numerous exceptions and qualifications to the general rule. Thus, for example, it is well established that despite "finality" a trial court can set aside a wholly void judgment, correct clerical errors in the judgment, modify certain kinds of judgments, exercise powers which it has expressly reserved, rule upon a pending motion to tax costs, make any of a variety of orders in enforcement of the judgment, and, in general deal with and dispose of matters which can be classified as "ancillary and collateral" to the judgment. Applications for attorney fees, and proceedings upon such applications, have been treated as "ancillary and collateral" matters in this sense (cf., e. g., Mabee v. Nurseryland Garden Centers, Inc. (1979) 88 Cal.App.3d 420, 429-430, 152 Cal.Rptr. 31, Associated Convalescent Enterprises v. Carl Marks & Co., Inc. (1973) 33 Cal.App.3d 116, 120, 108 Cal.Rptr. 782; Painter v. Estate of Painter (1889) 78 Cal. 625, 627-628, 21 P. 433). Jurisdiction to hear such an application even after "finality" can be conferred by implication by the statute which authorizes the attorney-fee award (cf. Painter v. Estate of Painter, supra; American City Bank v. Zetlen (1969) 272 Cal.App.2d 65, 67, 76 Cal.Rptr. 898). We infer such a grant of jurisdiction from the language of section 1021.5: The statute plainly requires that the claimant make a motion, founded on a showing that, among other things, the principal action "Has resulted in the enforcement of an important right" and that "a significant benefit . . . Has been conferred ". (Emphases added.) We conclude that the use of language couched in the past tense implies that the necessary showings Could not be made until after the principal judgment was final (cf. Braude v. Automobile Club (1978) 78 Cal.App.3d 178, 187, 144 Cal.Rptr. 169; Mabee v. Nurseryland Garden Centers, Inc., supra, 88 Cal.App.3d 420, 430, 152 Cal.Rptr. 31; Painter v. Estate of Painter, supra, 78 Cal. 625, 627-628, 21 P. 433) so that a motion for attorney fees under section 1021.5 Need not be made and determined until after the judgment is final.

We are not persuaded by Municipal Court's argument that, by waiting until the last day of the appeal period to file his motion, respondent had lulled Municipal Court into a decision not to appeal from the principal judgment. The judgment and the fee order were separately appealable (cf. 6 Witkin, Cal. Procedure (2d ed. 1971) Appeal, § 55, pp. 4069-4070; Code Civ.Proc., § 904.1 subd. (b)). We find no theoretical link between the order for attorney fees and a decision to appeal from the judgment, and from a tactical standpoint it would have been appropriate for Municipal Court (were it so advised) to have filed a precautionary appeal from the judgment pending respo...