Linco Custom Picture Framing v. Marketing Fundamental CA2/5

Filed 10/22/21 Linco Custom Picture Framing v. Marketing Fundamental CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
LINCO CUSTOM PICTURE B305852
FRAMING, INC.,
(Los Angeles County
Plaintiff and Respondent, Super. Ct. No. BC529071)
v.
MARKETING FUNDAMENTAL
INCORPORATED et al.,
Defendants and
Appellants.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Gregory Keosian, Judge. Affirmed.
Joseph R. Cruse, Jr., for Defendants and Appellants.
Law Offices of Steven L. Martin and Steven L. Martin for
Plaintiff and Respondent.
I. INTRODUCTION
Defendants Marketing Fundamental Incorporated and Jing
Y. Lai (defendants) appeal from the trial court’s entry of
judgment following an order vacating a prior dismissal.
Defendants contend that the court erred in granting a motion
filed by plaintiff Linco Custom Picture Framing, Inc. to vacate
the prior dismissal pursuant to Code of Civil Procedure1 section
473, subdivision (b) and, in the alternative, erred by failing to
award defendants attorney fees and costs. We affirm.
II. BACKGROUND
A. Prior Appeal2
On August 25, 2014, plaintiff filed a first amended
complaint against defendants, alleging claims for intentional
misrepresentation and making a promise without intending to
perform it.
On November 13, 2017, plaintiff’s counsel filed a notice of
settlement, explaining that the parties had entered into a
settlement agreement. Then, on January 12, 2018, plaintiff’s
counsel filed a request for dismissal of the entire action with
1 Further statutory references are to the Code of Civil
Procedure.
2 We recite the background facts based on our earlier opinion
in Linco Custom Picture Framing, Inc. v. Marketing Fundamental
Incorporated (Aug. 14, 2019, B291306) [nonpub. opn.] (Linco I).
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prejudice. That same date, the court clerk entered an order of
dismissal.
When defendants allegedly failed to perform their
obligations under the settlement agreement, plaintiff, on
May 8, 2018, filed an ex parte application for entry of judgment
pursuant to stipulation.
On May 11, 2018, the trial court granted plaintiff's
application and entered judgment in favor of plaintiff and against
defendants in the amount of $33,333.32, with interest to accrue
from May 10, 2018. Defendants timely filed a notice of appeal
from that judgment.
On August 14, 2019, we filed our opinion reversing the
judgment. We concluded that the trial court lacked jurisdiction
to issue its order granting plaintiff’s application for entry of
judgment because it had earlier dismissed the action with
prejudice. (Linco I, supra, B291306.)
On remand, the trial court ordered that the judgment be
set aside and vacated and noted that the “[d]ismissal of entire
action to remain as filed . . . .”
B. Plaintiff’s Motion to Vacate Dismissal
On September 30, 2019, plaintiff filed a motion to vacate
the prior dismissal pursuant to section 473, subdivision (b), and,
on November 25, 2019, it filed an amended motion. In support of
its motion, plaintiff submitted a declaration in which counsel
explained that pursuant to the terms of a settlement agreement
entered into by the parties, dismissal of the matter was
conditioned upon the completion of the terms of the agreement.
Counsel further explained that even though the terms of the
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settlement agreement had not been satisfied, and while taking
narcotics as part of his post-surgery recuperation, counsel signed
a request for dismissal that had been prepared by his assistant.
Counsel declared that he did not have authority from his client to
dismiss the lawsuit and first realized what he had done on
May 10, 2018. In July 2019, he informed [plaintiff] “about the
filing of the [r]equest [for dismissal] when discussing the appeal
filed by [d]efendants . . . .”
Defendants opposed the motion, arguing, among other
things, that plaintiff was not entitled to relief under section 473,
subdivision (b) because plaintiff’s motion, which was filed more
than six months from the dismissal order, was untimely.
Defendants also asserted that granting plaintiff relief was
contrary to section 473’s policy of having cases heard on the
merits. Defendants did not request attorney fees in the event the
court granted the motion.
On January 7, 2020, the trial court conducted a hearing on
plaintiff’s motion and took the matter under submission.3 On
January 24, 2020, the court granted plaintiff’s motion and issued
a ruling in which it rejected defendants’ argument that the
motion was untimely. The court found that counsel had acted
without his client’s authorization and the dismissal order
therefore was void and could be vacated at any time. The court
credited counsel’s statement that he lacked authority to dismiss
the complaint, noting that it was “corroborated by the settlement
agreement’s provision that [plaintiff] shall seek dismissal ‘within
three (3) days of the final payment’ under the settlement.”
3 The record does not include a transcript of the hearing or a
suitable substitute such as a settled or agreed statement.
4
On February 14, 2020, plaintiff filed an ex parte application
for entry of judgment pursuant to the terms of the settlement
agreement signed by the parties. Plaintiff requested a judgment
in the amount of $33,333.32. On February 19, 2020, the trial
court granted plaintiff’s application and entered judgment.
Defendants timely filed a notice of appeal.4
III. DISCUSSION
A. Section 473, Subdivision (b) Motion
1. Applicable Law
“Section 473, subdivision (b) provides for two distinct types
of relief—commonly differentiated as ‘discretionary’ and
‘mandatory’—from certain prior actions or proceedings in the
trial court. ‘Under the discretionary relief provision, on a
showing of “mistake, inadvertence, surprise, or excusable
neglect,” the court has discretion to allow relief from a “judgment,
dismissal, order, or other proceeding taken against” a party or his
or her attorney. Under the mandatory relief provision, . . . upon a
showing by attorney declaration of “mistake, inadvertence,
surprise, or neglect,” the court shall vacate any “resulting default
judgment or dismissal entered.”’ [Citation.] . . . The mandatory
provision further adds that ‘whenever relief is granted based on
4 In its respondent’s brief, plaintiff asserts that defendants
waived their right to appeal in the settlement agreement but does
not otherwise move to dismiss the appeal. In considering the
merits of defendants’ appeal, we do not decide, one way or the
other, whether defendants waived their appeal rights.
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an attorney's affidavit of fault [the court shall] direct the attorney
to pay reasonable compensatory legal fees and costs to opposing
counsel or parties.’” (Luri v. Greenwald (2003) 107 Cal.App.4th
1119, 1124.)
“As the statute itself provides, application for relief ‘shall
be made within a reasonable time, in no case exceeding six
months, after the judgment, dismissal, order, or proceeding was
taken.’” (Huh v. Wang (2007) 158 Cal.App.4th 1406, 1420,
emphasis omitted.) The six-month period for filing motions,
however, does not apply to motions to vacate a dismissal on the
grounds that the attorney who filed the request for dismissal
“wholly lacked power to dismiss the cause and acted beyond the
scope of his authority in dismissing his clients’ complaint . . . .”
(Whittier Union High Sch. Dist. v. Superior Court (1977) 66
Cal.App.3d 504, 507–508 (Whittier Union High Sch. Dist.).)
“‘“[T]he law is well settled that an attorney must be specifically
authorized to settle and compromise a claim, that merely on the
basis of his employment he has no implied or ostensible authority
to bind his client to a compromise settlement of pending litigation
. . . .”’” (Levy v. Superior Court (1995) 10 Cal.4th 578, 583.)
Accordingly, if the attorney wholly lacked power to dismiss the
cause and acted beyond the scope of his authority, the “action
remained voidable for an indeterminate period, and [the
attorney’s] clients could vacate the unauthorized dismissal within
a reasonable time after learning of it, regardless of the time
limitations in section 473 and regardless of rules governing relief
in instances of extrinsic fraud or extrinsic mistake.” (Whittier
Union High Sch. Dist., supra, 66 Cal.App.3d at pp. 507–508,
italics added; accord, Romadka v. Hoge (1991) 232 Cal.App.3d
1231, 1236.)
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2. Analysis
Defendants contend that the trial court erred in granting
plaintiff’s motion because it was filed more than six months after
the court entered the order of dismissal. We disagree. The court
credited plaintiff’s counsel’s statement that he lacked authority to
file the request for dismissal. (See McClain v. Kissler (2019) 39
Cal.App.5th 399, 415 [“In reviewing the trial court’s factual
findings regarding excuse and diligence, we defer to the trial
court’s assessments of credibility and the weight of the evidence
and do not interfere with its determinations of these matters”].)
The six-month period for filing the section 473, subdivision (b)
motion therefore did not apply. (Whittier Union High Sch. Dist.,
supra, 66 Cal.App.3d at pp. 507–508.)
Next, defendants cite English v. IKON Business Solutions,
Inc. (2001) 94 Cal.App.4th 130, 145–146, and similar cases, to
argue that mandatory relief under section 473, subdivision (b) is
only available for dismissals that are the equivalent of a default
judgment and thus unavailable where, as here, a plaintiff causes
the dismissal. As we discuss above, and contrary to defendants’
contention, a court may vacate a dismissal even where, as here,
the request for dismissal was filed by plaintiff’s counsel. (See
Whittier Union High Sch. Dist., supra, 66 Cal.App.3d at pp. 507–
508.)
Defendants also contend that the trial court’s order is
contrary to the legislative policy “‘to have every litigated case
tried upon its merits. . . .’” Defendants do not, however,
articulate how such a policy supports a finding that the court
erred or how the court’s order vacating the earlier dismissal of
the complaint is contrary to a policy of trying a case on its merits.
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On this record, we conclude that the court did not abuse its
discretion by granting plaintiff relief.
B. Attorney Fees
Defendants alternatively argue that plaintiff’s counsel
should be ordered to pay their reasonable fees and costs. (See
§ 473, subd. (b) [“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”].) Defendants have forfeited any such argument by
failing to request fees in the trial court. (See Rancho Mirage
Country Club Homeowners Assn. v. Hazelbaker (2016) 2
Cal.App.5th 252, 264, fn. 9 [as a general rule, issues not raised
before trial court cannot be raised for first time on appeal].)
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IV. DISPOSITION
The judgment is affirmed. Plaintiff Linco Custom Picture
Framing, Inc. is entitled to recover its costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KIM, J.
We concur:
RUBIN, P. J.
BAKER, J.
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