Gassner v. Stasa, 30 Cal. App. 5th 346

Background

Plaintiff Beverly Gassner, represented by Law Offices of Marc E. Grossman (Grossman firm), sued a former client for unpaid fees and voluntarily dismissed the action without prejudice in 2016.
Defendant Loretta Stasa filed a memorandum of costs ($2,698.91) and a motion for attorney fees; her proposed order named both Gassner and Grossman firm as liable for costs.
The trial court denied attorney fees but signed an order awarding "other costs" and listed payment as joint and several by Gassner and Grossman firm. Gassner moved under Code Civ. Proc. § 473 to vacate the costs award; the trial court denied the motion.
Grossman firm appealed from the trial court's January 30, 2017 order denying the motion to vacate. The adequacy and timeliness of appeals from (a) the August 4, 2016 costs order and (b) the orders denying vacatur were litigated.
The appellate court concluded the August 4 costs order was appealable as a judgment but Grossman’s appeal from that order was untimely; however, the appeal from the denial of the motion to vacate (filed March 29, 2017) was timely.
On the merits, the appellate court held the award of costs against the Grossman firm was void because the firm was not a party to the action; the costs award as to the firm was reversed and the firm awarded costs on appeal.

Issues

Issue	Plaintiff's Argument (Gassner)	Defendant's Argument (Grossman firm / Stasa)	Held
1. Is a costs order entered after a voluntary dismissal without prejudice appealable?	Costs order is not appealable because dismissal was nonjudicial/ministerial and not a final judgment.	Costs order is appealable as a final determination and therefore reviewable.	Costs order is appealable: it can be treated as a judgment under Code Civ. Proc. § 577 and reviewed on appeal.
2. Was the appeal from the August 4, 2016 costs order timely?	Gassner filed a § 473 motion which can extend time; but no further basis to extend beyond 180 days.	Grossman firm argued timely with respect to later orders.	Appeal from August 4 order was untimely (latest date expired Jan 31, 2017).
3. Are orders denying a motion to vacate (Oct 3, 2016 minute order and Jan 30, 2017 written order) appealable?	Denial of vacatur is nonappealable if underlying ruling is nonappealable.	If underlying judgment/order is void, denial of vacatur is appealable; here underlying costs order is challenged as void.	Denial of vacatur is appealable because Grossman contends underlying costs order was void; the appeal from Oct 3/Jan 30 order was timely.
4. Was the costs award against the Grossman firm valid?	Gassner did not specifically contest award against counsel below on the ground the firm was not a party.	Grossman firm argued it could not be taxed with costs because it was not a party.	Costs award against Grossman firm was void (firm was not a party); appellate court reversed award as to firm and awarded costs on appeal to firm.

Key Cases Cited

Mon Chong Loong Trading Corp. v. Superior Court, 218 Cal.App.4th 87 (Cal. Ct. App.) (held post-dismissal costs order following a voluntary dismissal without prejudice is not appealable)
Mesa Shopping Center-East, LLC v. O'Hill, 232 Cal.App.4th 890 (Cal. Ct. App.) (held costs/fee rulings after voluntary dismissal may be appealable as final determinations; persuasive here)
I.J. Weinrot & Son, Inc. v. Jackson, 40 Cal.3d 327 (Cal. 1985) (explains that an appeal cannot be created by moving to reconsider a nonappealable order)
311 South Spring Street Co. v. Dep't of Gen. Servs., 178 Cal.App.4th 1009 (Cal. Ct. App.) (denial of motion to vacate is appealable when it enforces a void underlying judgment)
Shisler v. Sanfer Sports Cars, Inc., 167 Cal.App.4th 1 (Cal. Ct. App.) (Code Civ. Proc. § 473 motion operates to extend time to appeal)
Riley v. Superior Court of Orange County, 111 Cal.App.2d 365 (Cal. Ct. App.) (county clerk's entry of dismissal is ministerial)
John Siebel Associates v. Keele, 188 Cal.App.3d 560 (Cal. Ct. App.) (order denying vacatur of a void judgment is appealable)