Metropolitan News-Enterprise


Thursday, October 11, 2018


Page 1


Court of Appeal:

Judge Improperly Made Order in Case Despite Pending Appeal

Says Meier’s Reinstatement of Default Judgment for Noncompliance With Appealed Condition of Vacating It Was in Absence of Jurisdiction; Partial Dissent Insists Condition Was in Part Invalid


By a MetNews Staff Writer



Rapper, appellant/defendant

A Los Angeles Superior Court judge, in setting aside a default judgment, properly imposed a condition that the defendant reimburse the plaintiff for attorney fees and costs but, once that condition was appealed, she lacked the power to reinstate the judgment based on the defendant’s non-compliance with the challenged order, the Court of Appeal for this district has held.

Presiding Justice Frances Rothschild of Div. One wrote the majority opinion, filed Tuesday and not certified for publication. It was joined by Justice Victoria Chaney.

Rothschild’s opinion affirms Judge Barbara Ann Meier’s Feb. 17, 2017 order conditioning relief from default and the ensuing default judgment, in a landlord/tenant dispute, on rapper/television personality Michael Ray Nguyen-Stevenson paying $27,968.75 to plaintiff F & S Investment Properties. It reverses Meier’s March 30 order that the default judgment be reinstated because Stevenson—whose stage name is “Tyga”—did not pay the money pursuant to the February order.

He had appealed that order on Feb. 23.

The separate appeals of the February and March orders were consolidated by Div. One.

Johnson’s View

A concurring and dissenting opinion was penned by Justice Jeffrey Johnson. He agreed that Meier inappropriately reinstated the default judgment, but disagreed with affirmance of the condition she imposed.

The larger chunk of the award, he contended, was invalid, and the balance was inadequately supported.

Of the $27,968.75, $17,250 was to compensate the plaintiff for sums it expended on attorney fees and costs in opposing relief from the default judgment.

“Indeed, F & S has not cited a case in which a defendant was required to reimburse a plaintiff for expenses incurred when opposing a motion to set aside a default judgment when the trial court found it was proper to set aside the judgment,” Johnson said. “To the contrary, when trial courts have awarded expenses under such a circumstance, appellate courts have deemed it to be an abuse of discretion.”

Further findings by the trial court should be required, he maintained, to justify the balance of the $27,968.75 award, amounting to $10,718.75.

Majority’s Opinion

Rothschild wrote:

“Stevenson contends that his appeal from the February order stayed further proceedings affecting that order and, as a result, the court did not have jurisdiction to make the March order. We agree.”

She pointed to Code of Civil Procedure §916(a), which provides:

“[T]he perfecting of an appeal stays proceedings in the trial court upon the judgment or order appealed from or upon the matters embraced therein or affected thereby, including enforcement of the judgment or order, but the trial court may proceed upon any other matter embraced in the action and not affected by the judgment or order.”

Rothschild said:

“By purporting to set aside the February order, the March order indisputably affected the earlier order.”

Undertaking Not Required

F & S contended there was no stay in effect because Stevenson did not post an undertaking. It pointed to Code of Civil Procedure §917.1(a), which says:

“Unless an undertaking is given, the perfecting of an appeal shall not stay enforcement of the judgment or order in the trial court if the judgment or order is for any of the following: [¶] (1) Money or the payment of money….”

The jurist responded:

“Section 917.1 does not apply to the February order because that order is not an order for money or the payment of money; it is an order to set aside the judgment. Although the effectiveness of that order was conditioned in part upon Stevenson’s payment of money to F & S, the order does not require Stevenson to make that payment and F & S could neither compel Stevenson to make it nor employ the tools for enforcing judgments to collect the amount of the conditional payment….Under the terms of the order, if Stevenson did not make the payment or file his answer, F & S had the right to request the default judgment be reinstated; but Stevenson had no obligation to make the conditional payment and F & S had no right to receive it. The February order was not, therefore, an order for money or the payment of money, and section 917.1 does not apply.”

Meier had cited the Court of Appeal’s 2001 opinion in Dowling v. Zimmerman in support of her March order.

Dowling is inapposite here because it plainly involved an order for the payment of money, not, as in this case, an order for an act other than the payment of money (setting aside a judgment) that was conditioned upon the payment of money,” Rothschild wrote. “We therefore reject the trial court’s reliance on Dowling.”

Affirming the Condition

Imposing a condition on the setting aside of the default judgment was authorized, Rothschild said.

Stevenson had been served by publication. Meier set aside the default judgment pursuant to Code of Civil Procedure § 473.5(a), which provides:

 “When service of a summons has not resulted in actual notice to a party in time to defend the action and a default or default judgment has been entered against him or her in the action, he or she may serve and file a notice of motion to set aside the default or default judgment and for leave to defend the action.”

Pointing to §473.5(c), which authorizes setting aside a default judgment “on whatever terms as may be just and allow the party to defend the action,” Rothschild wrote:

“The phrase, ‘whatever terms as may be just,’ has been broadly construed to permit the court to impose “reasonable conditions to avoid prejudice or unfairness to plaintiff.”…Such conditions may include the payment of costs and attorney fees to compensate the adverse party for the prejudice or expense occasioned by the default and the granting of a motion for relief….More particularly, the conditions may include the payment of attorney fees incurred to defend against the defendant’s motion to set aside the default judgment…, as well as fees and costs incurred in obtaining the default….”

February Order Appealable

The February order was appealable, Rothschild declared, rejecting Meier’s contrary view.

Meier could have ordered, in February 2017, that Stevenson pay the $4,531.25, deferring action on vacating the default judgment until he showed that he had so, in which event the February order would have been an interlocutory one that was unappealable, she noted, adding that Meier did not follow that procedure.

 “Because the February order, as we construe it, does not contemplate or require a further order to set aside the judgment,” Rothschild said, “ it is a self-executing, appealable order.”

The dispositional portion of the opinion provides:

“Stevenson shall have 25 days after the issuance of the remittitur to fulfill the condition imposed under the February order. If Stevenson does not timely fulfill that condition, the court may, upon ex parte application by F & S, strike Stevenson’s answer and reinstate Stevenson’s default and the default judgment.”

$17,250 Reduction

Johnson said that in light of his view that Meier abused her discretion in ordering payment of F & S’s attorney fees and costs in connection with opposing relief from the default judgment, he “would therefore modify the trial court’s first order, reducing by $17,250 the attorney fees awarded to F & S.”

He added that because Stevenson was only one of three defendants in the case, the balance of the award should be further examined by the trial court, explaining:

“I would also remand so that F & S could clarify whether the remaining $10,718.75 it incurred when preparing and enforcing the default judgment was generated while working on Stevenson’s judgment exclusively or while working on the judgment against all the defendants in this case. As Stevenson is not required to reimburse F & S for any attorney fees or costs incurred by F & S when obtaining default judgments against Stevenson’s codefendants, any amount erroneously attributed to Stevenson in this respect also should be stricken.”

The case is F & S Investment Properties v. Stevenson, B281031.

Alan Kossoff and Amber Melius of the Santa Monica law firm of Kinsella Weitzman Iser Kump & Aldisert represented Stevenson. Santa Monica attorney Rosario Perry was the attorney for F & S.

Stevenson has been a defendant in various lawsuits and the State of California in 2015 imposed a lien on him for $19,000 in unpaid taxes.


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