Properties v. Jacinto
| Decision Date | 18 March 2019 |
| Docket Number | D074718 |
| Parties | STUBBLEFIELD PROPERTIES, Plaintiff and Respondent, v. MARTIN C. JACINTO, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from an order of the Superior Court of San Bernardino County, Bryan F. Foster, Judge. Order affirmed; sanctions requests denied.
Nancy Duffy McCarron for Defendant and Appellant.
Hart and King, Robert G. Williamson, James S. Morse and Rhonda H. Mehlman for Plaintiff and Respondent.
After Stubblefield Properties (Stubblefield) prevailed in a nuisance lawsuit against Martin C. Jacinto, the trial court awarded it $190,499 in statutory attorney's fees. Jacinto's prior counsel, who failed to file an opposition to the fee motion or appear for the hearing, did not promptly seek to set it aside. More than two years after the order, Jacinto retained new counsel and sought to set aside the fee order on equitable grounds, claiming his former counsel colluded with opposing counsel to subject him to an onerous fee award. Jacinto appeals the denial of that set aside motion.
As we explain, our review at this juncture is limited to deciding whether the 2015 fee order was void. Because there were at least two statutory bases to support an award of attorney's fees, the court had fundamental jurisdiction to enter its order. Although an order may be set aside on equitable grounds for extrinsic fraud, there was no evidence to support the unsubstantiated claims of collusion between counsel. We are sympathetic to Jacinto, who now faces an onerous fee obligation due to his former attorney's unprofessional errors. Nevertheless, because that attorney continued to act as Jacinto's representative, albeit ineffectively, Jacinto cannot be relieved from the fee order on equitable grounds under the narrow exception provided in Daley v. Butte County (1964) 227 Cal.App.2d 380, 391 (Daley), which only applies where there has been an abandonment of the client or other action by the lawyer that severs the attorney-client relationship. Accordingly, we affirm.
Stubblefield operates the Mountain Shadows Mobile Home Community in Highland, California. Carol K. leased a space in that community to park her mobilehome. She sold her mobilehome to Jacinto in 2011 without Stubblefield's consent, allegedly in violation of her written lease and the Mobilehome Residency Law (MRL, Civ. Code, § 798 et seq.).1 Because Jacinto and his wife were not seniors, they were not eligible to live in the senior living community. Jacinto paid rent for a time but then stopped. Stubblefield sued Jacinto for ejectment, trespass, and nuisance; the complaint sought compensatory damages and costs but not attorney's fees.
Jacinto filed a cross-complaint asserting claims based in contract and tort, as well as violations of federal and state civil rights laws.2 In his prayer, Jacinto sought "reasonable attorney's fees, including and pursuant to [Code of Civil Procedure section] 1021.5."3 Answering the cross-complaint, Stubblefield sought attorney's fees as a terminating sanction under section 128.7, claiming Jacinto's pleading was "frivolous as filed and/or prosecuted."
The case proceeded to a jury trial in 2014. Finding Jacinto's evidence insufficient, the court directed a verdict in Stubblefield's favor on the cross-complaint. The jury returned a special verdict in Stubblefield's favor on its complaint and awarded it $41,166.58 in compensatory damages. An amended judgment later added $16,721.92 in costs.
Stubblefield filed a postjudgment motion requesting $190,449 in attorney's fees, relying in part on attorney fee provisions in the MRL (Civ. Code, § 798.85) and FEHA (Gov. Code, § 12965, subd. (b)). In an attached declaration, lawyer Robert Williamson stated his firm had billed Stubblefield $159,549 at reduced rates, and reasonable fees at hourly market rates justified the higher requested amount. A hearing was set for November 19, 2014. Before that date, attorney Robert Nahigian substituted in as Jacinto's counsel.
Nahigian failed to appear at the November 19 hearing or at the continued hearing on December 17. The court again continued the hearing to February 18, 2015. Meanwhile the parties attempted to settle and coordinate outstanding construction "punch list" items that Jacinto had to complete.
On the morning of February 18, Nahigian e-mailed Williamson about the hearing: Williamson promptly replied, Nahigian agreed to pay those costs if the court continued the hearing. Less than an hour later, Williamson sent Nahigian a post-hearing update:
The reporter's transcript for the hearing indicates that Williamson told the court, The court stated it was ready to rule and granted Stubblefield's motion.4 It then asked if Jacinto was prepared for the scheduled judgment debtor examination. Noting Jacinto's failure to appear, the court issued a bench warrant.
Nahigian appeared in court later that afternoon with Jacinto to resolve the bench warrant issue. He admitted miscalendaring the morning hearing. The court indicated that it made its ruling because there was no opposition on the fee motion; it suggested that Nahigian "do a reconsideration or whatever you feel is necessary." Nahigian stated that he had been in San Diego that morning and that Williamson "said the court was not willing to continue it." The court replied,
A minute order dated February 18, 2015 granted Stubbelfield's fee motion; a formal order followed on February 25. On August 24, Jacinto filed a motion to set aside the order based on excusable neglect, pursuant to section 473, subdivision (b) ().5 In his attached declaration, Nahigian indicated that despite his lack of written opposition, he was prepared to challenge the award as unreasonable.
Stubblefield opposed the motion, arguing it had been filed more than six months after the court's order and did not comply with statutory requirements. (§ 473, subd. (b) [].) It further argued that to the extent the request was a renewed reconsideration motion, Jacinto was required to present new or different facts pursuant to section 1008.6 The court denied Jacinto's first set aside motion in September 2015. A motion to reconsider that ruling was also denied. Jacinto appealed, but upon his request, the appeal was dismissed in April 2016.
Represented by new counsel, Nancy Duffy McCarron, Jacinto filed a new motion in June 2017 to set aside the February 2015 fee order on equitable grounds pursuant to section 1916 ().7 Jacinto maintained that the 2015 fee order had been "obtained by fraud on the court and collusion of Jacinto's [prior] attorney [Nahigian] with opposing counsel," rendering it "void in fact" based on extrinsic fraud.8 Jacinto argued competent counsel would have noted that fees were unwarranted under the MPL or FEHA and challenged the amount requested as exceeding the fees actually billed. He also claimed that the 2015 fee order was void because the complaint did not seek fees, and a judgment granting relief not demanded in the complaint is void.
The second set aside motion listed Nahigian's mistakes, including his failure to oppose the fee motion or show up at the hearing, his advice to ignore the judgment debtor examination, his failure to file a timely set aside motion, and his advice to file a frivolous appeal that Jacinto later abandoned. In an attached declaration, Jacinto alleged he was harmed by "Nahigian's . . . fraud, and collusion with Robert Williamson to sell me out." He attached a "chronology" to his declaration that stated Nahigian had promised Jacinto he could convince Williamson, "his long-term friend" from school days, "to accept considerably less fees." Noting pending disciplinary action against Nahigian, Jacinto alleged in this "chronology" that Nahigian was engaged in a "racketeering enterprise" against his clients. He also lodged copies of the judgment and various court filings, a malpractice complaint pending against Nahigian, and other documents.
Stubblefield opposed the motion, arguing that allegations of " 'collusion' " during earlier proceedings amounted only to " 'intrinsic fraud,' " which would not provide an equitable basis to set aside the 2015 order.9 Noting this was the fourth attempt to challenge that order, Stubblefield contended that Jacinto failed to show new facts or circumstances that could not have earlier been presented. (Even Zohar, supra, 61 Cal.4th at p. 833; § 1008.) It maintained Jacinto failed to offer a "scintilla of admissible evidence" justifying allegations of collusion or fraud between Nahigian and Williamson and, in a separate filing, lodged 60 evidentiary objections. Stubblefield requested $10,350 in sanctions against Jacinto and McCarron.
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