Opinion
NOT TO BE PUBLISHED
San Mateo County Super. Ct. No. 408705
Margulies, J.
Giovanni Zocca appeals from a judgment and postjudgment orders in three consolidated cases arising from an $11,800 judgment he obtained against his brother and sister-in-law, Raffaele and Mary Zocca, in 1991. This is the third appellate opinion we have issued in this protracted intra-family litigation. We now affirm the judgment and orders appealed from in the consolidated cases.
I. BACKGROUND
A. Inception of the Litigation
On April 4, 1991, Giovanni Zocca obtained a defense verdict in a lawsuit brought against him by his brother and sister-in-law, Raffaele and Mary Zocca. A judgment in Giovanni’s favor, denominated “Judgment (Subject to Amendment Re: Costs),” was entered and served on May 1, 1991. The judgment, drafted by Giovanni’s attorneys, recited that it was “subject to Amendment regarding defendant’s Memorandum of Costs, since defendant GIOVANNI ZOCCA is entitled to costs pursuant to [Code of Civil Procedure section] 1141.21.”
To avoid confusion, and meaning no disrespect to the parties, we will refer to Giovanni Zocca by his first name, to Raffaele and Mary Zocca by their first names, and to Raffaele, Mary, and their daughter as “the Zoccas.”
Following the denial of Raffaele and Mary’s new trial motion, the “Judgment (Subject to Amendment Re: Costs)” became final on July 11, 1991. On August 15, 1991, the court filed an “Amended Judgment” awarding Giovanni $11,820 in costs. Notice of entry of the “Amended Judgment” was mailed on August 19, 1991. Raffaele and Mary did not appeal from the 1991 judgment.
Giovanni filed an abstract of judgment in San Mateo County. Some time before 1998, Raffaele and Mary’s daughter, Anna Maria, was added as a co-owner with her parents of real property located on Hazelwood Drive in San Mateo. In 1998, Raffaele, Mary, and Anna Maria attempted to refinance the Hazelwood property at which time the escrow company, Commonwealth Land Title Company (Commonwealth), informed the Zoccas of the existence of the judgment lien.
Giovanni and the Zoccas were unable to reach agreement about the amount of money necessary to satisfy the judgment in full, including the interest that had accrued on it since 1991. At Commonwealth’s request, the Zoccas agreed to allow $30,000 of the payout they were to have received from the refinance to be withheld so that Commonwealth could deposit the money with the court and file an interpleader action to determine the amount due to Giovanni.
B. Consolidated Cases
Commonwealth filed the interpleader action in April 1999, naming the Zoccas and Giovanni as defendants (case No. 408705). The parties eventually stipulated that Commonwealth could be dismissed from the lawsuit in return for capping its fees and costs at $5,000. The Zoccas sought an award of punitive damages against Giovanni in the interpleader action and, on January 25, 2001, filed an independent action seeking tort damages for interference with prospective advantage and slander of title based on Giovanni’s conduct in allegedly demanding an excessive payoff amount for releasing his judgment lien on the Hazelwood property (case No. 415615).
In October 2001, Giovanni filed an independent action on the 1991 judgment requesting a new judgment for the original principal amount, plus accrued interest (case No. CLJ 184823).
By stipulation of the parties, case Nos. 408705, 415615, and CLJ 184823 were consolidated for all purposes. In January 2002, the Zoccas obtained an order summarily adjudicating that because Giovanni’s 1991 judgment had expired, he had no claim on the funds deposited with the court in the interpleader action, and his judgment lien was of no further force or effect. The remaining issues in case Nos. 415615 and CLJ 184823 were tried in August 2002.
Following a court ruling that Giovanni’s recording of an abstract of judgment was immune from tort liability under the litigation privilege of Civil Code section 47, the Zoccas stipulated to the dismissal of their tort claims. In Giovanni’s independent action to enforce the 1991 judgment, the court made findings establishing the date on which the statute of limitations began to run, and the number of days the running of the statute had been tolled by the absence of Mary and Raffaele from the state. Based on these findings, the court held that the statute of limitations barred Giovanni’s action.
The trial court entered a single judgment in the consolidated cases that (1) incorporated its earlier summary adjudication ruling that Giovanni was not entitled to any of the interpleaded funds (case No. 408705), (2) dismissed the Zoccas’ demand for punitive damages and tort claims against Giovanni (case Nos. 408705 and 415615), and (3) dismissed Giovanni’s action on the 1991 judgment (case No. CLJ 184823). The Zoccas thereafter moved for a new trial on their tort claims. They contended that tort claims based on Giovanni’s alleged conduct in demanding more than he was entitled to under the 1991 judgment could not be barred by the privilege because the Legislature had, in Code of Civil Procedure section 724.070, specifically authorized damages to be awarded in such cases. The trial court agreed that Raffaele and Mary could proceed with their tort claims against Giovanni, but held that Anna Maria’s claims were barred because she was not a “judgment debtor” for purposes of section 724.070.
All further statutory references are to the Code of Civil Procedure, unless otherwise indicated.
Section 724.070, provides in pertinent part as follows: “If a judgment creditor intentionally conditions delivery of an acknowledgment of satisfaction of judgment upon the performance of any act or the payment of an amount in excess of that to which the judgment creditor is entitled under the judgment, the judgment creditor is liable to the judgment debtor for all damages sustained by reason of such action or two hundred fifty dollars ($250), whichever is the greater amount.” (§ 724.070, subd. (a).)
C. Appeal, Remand, and Judgment in the Consolidated Cases
Giovanni appealed to this court from, inter alia, (1) the order granting the Zoccas a new trial, and (2) the portion of the judgment in the consolidated cases dismissing his independent action on the 1991 judgment. In a nonpublished opinion, this court (1) reversed the order granting a new trial to the extent that it allowed Raffaele and Mary to proceed on their tort theories and remanded the case to the trial court to determine whether Raffaele and Mary were entitled to proceed with a statutory claim under section 724.070, and (2) dismissed as premature Giovanni’s appeal from the disposition of his independent action on the 1991 judgment. (Commonwealth Land Title Company v. Zoccaet al. (Apr. 21, 2004, A101821) (Zocca I).)
After remand, the trial court allowed Raffaele and Mary— over Giovanni’s objections—to amend their complaint in case No. 415615 to state a statutory cause of action under section 724.070, and to try that claim to a jury. In a second nonpublished decision filed in January 2006, this court rejected a procedural challenge by Giovanni and affirmed the order granting a new trial. (Zocca, et al. v. Zocca (Jan. 20, 2006, A109357) (Zocca II).) On September 20, 2007, the jury returned a special verdict finding that Giovanni did “intentionally condition delivery of an acknowledgement of satisfaction of judgment upon the payment of an amount in excess of that to which he was entitled under the [1991] judgment” for purposes of section 724.070, but that Raffaele and Mary did not suffer any damages as a result of such conduct.
Based on the jury’s verdict, the court entered judgment in the consolidated cases on November 7, 2007. The court found that Raffaele and Mary were each entitled to a statutory damage award of $250 under section 724.070. However, due to offsetting amounts Raffaele and Mary owed to Giovanni, the judgment awarded Raffaele and Mary no net damages in case No. 415615. In case No. 408705, the court reduced the prior order granting summary adjudication to judgment, awarding $25,000 of the interpleaded funds jointly to Raffaele, Mary, and Anna Maria, and the remaining $5,000 to Commonwealth pursuant to the parties’ settlement agreement. In case No. CLJ 184823, the court adopted the findings and orders made in 2002 that Giovanni’s independent action on the 1991 judgment was time-barred. The November 7 judgment reserved for later determination the issues of who, if anyone, was a prevailing party and all issues of fees and costs.
After further briefing and argument, the trial court determined that Raffaele and Mary were the prevailing parties for purposes of an award of costs under section 1032 et seq. because they had prevailed on Giovanni’s claim for enforcement of the judgment against them, and were awarded $25,000 in the interpleader action, which offset the fact that they were awarded no net recovery in their tort action and that all but one of their causes of action in that matter had been dismissed with prejudice. The court further ruled that Raffaele and Mary’s request for costs was not defeated by section 1141.21 because the judgment they obtained after the 2007 trial eliminated the costs awarded against them in a 2001 judicial arbitration. Finally, the court ruled there was no prevailing party for purposes of section 724.080.
The arbitrator awarded the Zoccas no damages on their tort complaint against Giovanni and awarded Giovanni his costs in that case. The Zoccas rejected the award and requested a trial de novo. With certain exceptions not relevant here, section 1141.21 provides that a party electing a trial de novo following a judicial arbitration becomes liable for all taxable costs incurred after such election unless the judgment obtained by the party after trial is “more favorable in either the amount of damages awarded or the type of relief granted... than the arbitration award....” (§ 1141.21, subd. (a).)
Section 724.080 provides: “In an action or proceeding maintained pursuant to this chapter, the court shall award reasonable attorney’s fees to the prevailing party.”
An amended judgment incorporating the court’s rulings on the reserved prevailing party and cost issues was filed on June 13, 2008. Giovanni timely appealed from the November 7, 2007 judgment and from the postjudgment order addressing prevailing party issues (A120397). He filed a second timely appeal from the June 13, 2008 amended judgment (A122294). Upon motion, we consolidated both appeals for purposes of briefing, oral argument, and decision.
II. DISCUSSION
Giovanni makes the following assertions on appeal: (1) the statute of limitations for his independent action on the 1991 judgment did not expire; (2) the return of Raffaele and Mary’s interpleaded funds was not a judgment in their favor; (3) Raffaele and Mary’s statutory claims under section 724.070 were time-barred, barred by the litigation privilege, and resulted from trial court error in relieving Raffaele and Mary from their late filing of an amended complaint; (4) the trial court erred in ruling that Giovanni was not the prevailing party under sections 1032 and 1141.21 and in denying him his right to recover attorney fees under section 724.080.
A. Dismissal of the Independent Action
The trial court incorporated into the judgment in the consolidated cases the following factual and legal findings made in 2002 in Giovanni’s independent action on the 1991 judgment: (1) the time for appeal of the original 1991 action began on May 1, 1991 when the “Judgment (Subject to Amendment Re: Costs)” was entered; (2) entry of the “Amended Judgment” adding costs on August 16, 1991was a clerical or ministerial act and not a substantive change to the May 1, 1991 judgment; (3) due to Raffaele and Mary’s motion for a new trial, the judgment in the 1991 action became final on July 11, 1991; (4) the 10-year statute of limitations for filing an independent action for enforcement of the judgment expired before the October 29, 2001 filing of the complaint in case No. CLJ18423 unless the running of that statute was tolled because of the judgment debtors’ absence from the State of California for 110 days or more during the period from May 1, 1991 to July 11, 2001; (5) during the relevant time period Raffaele and Mary were jointly absent from the state for 69 days and Raffaele was individually absent for seven additional days; (6) since Giovanni failed to establish that the statute of limitations was tolled for a sufficient time to make his filing of the complaint in case No. CLJ18423 timely, the action is time-barred.
See section 337.5.
Section 351 provides: “If, when the cause of action accrues against a person, he is out of the State, the action may be commenced within the term herein limited, after his return to the State, and if, after the cause of action accrues, he departs from the State, the time of his absence is not part of the time limited for the commencement of the action.”
If no appeal is taken from a judgment, the judgment becomes final for statute of limitations purposes upon expiration of the period within which an appeal may be taken. (Hoover v. Galbraith (1972) 7 Cal.3d 519, 525–526.) Giovanni insists that the judgment became final in this case on October 18, 1991, when the time for appealing the “Amended Judgment” expired. If so, then Giovanni’s October 29, 2001 complaint was timely since the limitations period was tolled pursuant to section 351 for more than 10 days due to Raffaele and Mary’s absences from the state.
We reject the premise of Giovanni’s argument. The May 1, 1991 judgment, denominated “Judgment (Subject to Amendment Re: Costs),” decided all of the issues in the original proceeding between Giovanni and Raffaele and Mary, including Giovanni’s entitlement to costs. The only matter left for resolution by the May 1 judgment was the dollar amount of those costs. The issue presented in this appeal is whether the entry of the August 16, 1991 “Amended Judgment” specifying the amount of the cost award was (1) a clerical or ministerial act that did not postpone the running of the statute of limitations for any action on the judgment; or (2) a substantive change to the May 1, 1991 judgment that restarted the running of the statute. In our view, the trial court correctly determined that entry of the Amended Judgment was a clerical act, not a substantive change to the original judgment.
The applicable law is not in dispute. “When the trial court amends a nonfinal judgment in a manner amounting to a substantial modification of the judgment..., the amended judgment supersedes the original and becomes the appealable judgment (there can be only one ‘final judgment’ in an action...). Therefore, a new appeal period starts to run from notice of entry or entry of the amended judgment....” (CC-California Plaza Associates v. Paller & Goldstein (1996) 51 Cal.App.4th 1042, 1048, quoting Eisenberg et al., Cal. Practice Guide: Civil Appeals & Writs (The Rutter Group 1995) ¶¶ 3:56 to 3:56.2, pp. 3-19 to 3-20.) When a judgment has been modified, an appeal must be taken from the original judgment if the change was clerical, and from the modified judgment if the change was material and substantial. (Stone v. Regents of University of California (1999) 77 Cal.App.4th 736, 743–744.) The court’s duty to award costs to the party entitled to them under section 1032 is ministerial. (Miles California. Co. v. Hawkins (1959) 175 Cal.App.2d 162, 165.)
Thus, “[i]t is well settled... that ‘[w]here the judgment is modified merely to add costs, attorney fees and interest, the original judgment is not substantially changed and the time to appeal it is therefore not affected.’ ” (Torres v. City of San Diego (2007) 154 Cal.App.4th 214, 222, quoting Eisenberg et al., Cal. Practice Guide: Civil Appeals & Writs, supra, ¶ 3:56:3, p. 3-26; see also Amwest Surety Ins. Co. v. Patriot Homes, Inc. (2005) 135 Cal.App.4th 82, 84, fn. 1 [amended judgment awarding prejudgment interest, costs, and attorney fees was clerical]; Guseinov v. Burns (2006) 145 Cal.App.4th 944, 951 [amended judgment quantifying amount of prejudgment interest was clerical].) Under settled case law, the amended judgment was not a material modification but reflected the purely clerical and ministerial act of filling in the amount of a cost award that had already been made to Giovanni. The amended judgment did not therefore extend the time for Giovanni to file an independent action on the original judgment.
Giovanni’s citation to In re Marriage of Wilcox (2004) 124 Cal.App.4th 492 (Wilcox) is unavailing. In Wilcox, the Court of Appeal held that an order entered in a dissolution proceeding was a modification of an earlier order and extended the time for the wife to renew a monetary judgment, when it added $35,897.07 for child support, spousal support, attorney fees, costs, and interest to an earlier order. (Id. at pp. 496–497, 502.) In so holding, the court noted that the later order was one in a sequence of orders in a continuing family law case and that it modified certain parts of the earlier order and declined to modify others. (Id. at p. 502.) The husband had in fact conceded that the later order included money awards that were separate from and in addition to those awarded in the earlier order. (Ibid.) We have no such facts here. The amended judgment in this case did not make any new legal determinations or add any monetary awards; it merely filled in an amount for the costs awarded to Giovanni by the original judgment. The trial court correctly ruled that the judgment in the 1991 action became final on July 11, 1991, and that the time for filing an independent action to enforce the judgment had expired by the time case No. CLJ18423 was filed.
B. The Interpleader Action
Giovanni contends that the funds interpled by Commonwealth belonged to Raffaele and Mary and that the order that $25,000 of these funds be returned to them was not a judgment in their favor. He asks that the order determining Raffaele and Mary to be the prevailing parties in the consolidated cases be remanded with instructions to the trial court to reconsider the prevailing party issue without considering the money returned to them as a net recovery in their favor.
Giovanni cites no authority for the proposition that parties who obtain the return of their funds in an interpleader action have not achieved any net monetary recovery against the other party. In this case, funds that were part of the payout the Zoccas were to have received from the refinance of the Hazelwood property were deposited with the court so that the amount due to Giovanni under his judgment lien could be determined. Once those funds were deposited, their disposition among the parties to the interpleader action was left for the court to decide. Over Giovanni’s opposition, Raffaele and Mary succeeded in the end in obtaining an order summarily adjudicating that $25,000 of the funds belonged to them, and none belonged to Giovanni.
Whatever else might be said about the outcome of the interpleader action, it can certainly not be characterized as a victory for Giovanni or as a draw or split decision as between him and Raffaele and Mary. In our view, the trial court’s treatment of the interpleader portion of the judgment under section 1032 was fully within its discretion, if not required as a matter of right. Whether characterized for purposes of section 1032 as a “net monetary recovery” by Raffaele and Mary, the functional equivalent of defeating a plaintiff’s monetary claim against them, or a discretionary award by the court in a “situation[] other than as specified,” there can be no question that Raffaele and Mary prevailed in the interpleader action. Giovanni’s position that, as a matter of law, no party prevailed, is without merit.
Section 1032, subdivision (a) provides in relevant part as follows: “ ‘Prevailing party’ includes the party with a net monetary recovery,... and a defendant as against those plaintiffs who do not recover any relief against that defendant. When any party recovers other than monetary relief and in situations other than as specified, the ‘prevailing party’ shall be as determined by the court....”
C. Section 724.070 Claims
1. Statute of Limitations
Raffaele and Mary’s third amended complaint alleged a single cause of action for violation of section 724.070. Giovanni maintains that the statute of limitations for claims under that section is one year pursuant to section 340(a) because section 724.070 is assertedly “penal in nature.” Since the alleged wrongful acts occurred in December 1998, and the original complaint was not filed until January 25, 2001, Giovanni argues it was time-barred. In response to Giovanni’s demurrer on that ground, the trial court found that the three-year limitations period in section 338, subdivision (a) applied, and rejected Giovanni’s statute of limitations defense.
Section 340, subdivision (a) provides that “[a]n action upon a statute for a penalty or forfeiture, if the action is given to an individual, or to an individual and the state,” shall be brought within one year.
We find no error in the trial court’s ruling. Section 724.070 provides that a judgment creditor who violates its provisions “is liable to the judgment debtor for all damages sustained by reason of such action or two hundred fifty dollars ($250), whichever is the greater amount.” (§ 724.070, subd. (a).) The trial court contrasted this language with a closely related provision adopted by the Legislature at the same time it enacted section 724.070. The related provision, section 724.050, contained clearly enunciated penalty language stipulating that a judgment creditor who wrongfully rejected a judgment debtor’s demand for an acknowledgment of satisfaction of judgment “is liable to the person who made the demand for all damages sustained by reason of such failure and shall also forfeit one hundred dollars ($100) to such person.” (§ 724.050, subd. (e), italics added.) The court pointed out that if the Legislature had intended to make section 724.070 a penalty provision it could have used the same language it used in section 724.050 to carry out such intent. That it did not do so indicates the Legislature intended a different type of remedy.
The trial court also pointed out that in a letter to the Governor urging him to sign the legislation enacting section 724.070, the bill’s author characterized the $250 recovery provision as “liquidated damages,” not as a penalty of any sort. The author’s characterization of the $250 figure as liquidated damages is consistent with language found elsewhere in the bill’s legislative history. The Legislative Counsel’s Digest of the bill stated that it would make the judgment creditor liable “for all damages sustained by reason of [a violation], but in no event shall this be less than $250.” (Italics added.) This is suggestive that legislators understood the $250 minimum as a liquidated damages provision when they voted on the bill. (See People v. Superior Court (Douglass) (1979) 24 Cal.3d 428, 434 [reasonable to presume the Legislature intended meaning expressed in the Legislative Counsel’s digest].) Senate Committee analyses described the provision in substantially identical language. There is no indication in the available legislative history that the $250 recovery figure was discussed or portrayed as a penalty provision at any time during its enactment.
The cases Giovanni relies on do not persuade us to reject this analysis of the statute’s text and legislative history. Prudential Home Mortgage Co. v. Superior Court (1998) 66 Cal.App.4th 1236 at pages 1242–1243 construed former Civil Code section 2941, subdivision (d), which made violators liable in every case for actual damages plus a forfeiture of $300. County of San Diego v. Milotz (1956) 46 Cal.2d 761 construed a statute requiring court reporters to suffer a 50 percent reduction in compensation for filing a transcript late, without requiring any showing of actual damages caused by the delay. (Id. at p. 766.) In both of these cases, as in section 724.050, a specified monetary forfeiture is imposed on the violator independently of and in addition to any actual damages that might be sought for the violation. That is not the case with section 724.070. The $250 recovery provision provides for a minimum amount of damages, applicable only in those cases when the judgment debtor is for any reason unwilling or unable to prove greater damages. Such a presumptive floor on damages serves the non-punitive purposes of (1) avoiding the promotion of unnecessary litigation over minimal damage claims, and (2) allowing some compensation when actual damages are difficult to prove. At the same time, the token amount of the floor is inconsistent with an intent to punish or deter violators.
According to its legislative history, section 724.070 was aimed primarily at the collection company practice of blocking the sales of real property subject to judgment liens in order to coerce debtors to pay off other unlitigated claims. In that context, where the debtor’s loss would often be limited to the sacrifice of his or her right to contest other claims, it is especially likely that damages would be difficult to prove.
Finally, we note that Raffaele and Mary’s third amended complaint sought actual damages, not a $250 penalty. It would be anomalous to treat it for statute of limitations purposes as if it sought only the latter.
The trial court did not err in rejecting Giovanni’s statute of limitations defense.
2. Litigation Privilege
We held in Zocca I, supra, A107821, that a statutory claim for damages under section 724.070 was not barred by the litigation privilege. Giovanni contends that between the time of Zocca I and the trial, the Supreme Court’s decision in Jacob B. v. County of Shasta (2007) 40 Cal.4th 948 (Jacob B.) superseded our Zocca I ruling that allowed an action under section 724.070 to proceed. Giovanni acknowledges the potential applicability of the “law of the case” doctrine, but points out that it does not apply when there has been an intervening change in the controlling law. (See George Arakelian Farms, Inc. v. Agricultural Labor Relations Bd. (1989) 49 Cal.3d 1279, 1291, 1292, fn. 9.)
The basis for our holding in Zocca I, supra, A101821 was as follows: “If the Legislature intended the remedy authorized by section 724.070 to be barred by the litigation privilege, the enactment of the statute would have been pointless.... [T]he type of wrongful act for which the Legislature authorized damages to be awarded in section 724.070 is, by its essential nature, a communicative act bound up with the judicial process. It would make no rational sense for the Legislature to enact a statute ostensibly authorizing damages to be awarded for specified acts, while contemplating that an earlier statute would in every case shield the same conduct from liability. In our view, the litigation privilege has no application to statutory claims brought under section 724.070 because holding otherwise would make the statute into a nullity.” While acknowledging cases holding that the litigation privilege barred certain statutory claims, we distinguished those cases as follows: “[T]hese cases adopted no general rule that the litigation privilege trumps statutory claims. Instead, both cases turn on facts and policy considerations that are absent in this case. Unlike section 724.070, neither of the statutes in issue in these cases was directed exclusively to communicative acts that could only occur in the context of litigation. Because the statutes only incidentally covered conduct that could arise in the judicial process, recognition of the privilege did not significantly impair the broad public policies served by the statute, and there was little reason to conclude that in enacting these statutes the Legislature intended to narrow the scope of the litigation privilege.” (Zocca I, supra, A101821.)
The issue presented in Jacob B. was whether the litigation privilege operated to bar a cause of action based on California’s constitutional right to privacy. (Jacob B., supra, 40 Cal.4th at p. 952.) The court held as follows: “Consistent with our frequent statement that the privilege protects against all tort causes of action except for malicious prosecution, including those alleging invasion of privacy, we also conclude that the privilege does extend to causes of action based on the constitutional right to privacy.” (Ibid.) The court rejected the argument that “the litigation privilege, being merely a statutory creation, must yield to the constitutional right to privacy.” (Id. at p. 961.)
Contrary to Giovanni’s suggestion, the Supreme Court did not hold in Jacob B. that all statutory claims involving communicative acts connected to judicial proceedings are automatically barred by the litigation privilege, nor did we hold in Zocca I that the litigation privilege can never bar such claims. Our holding was that the statutory litigation privilege was in direct conflict with a later enacted statute, section 724.070, that specifically authorizes a damages remedy for communicative conduct occurring in a litigation context—conditioning delivery of an acknowledgement of satisfaction of judgment upon improper demands. Since we must presume that the Legislature’s enactment of section 724.070 was not an idle act, we held that the litigation privilege did not bar its application. We note parenthetically that if the litigation privilege barred the application of section 724.070, it would also render many similar statutes intended to provide remedies or sanctions for improper litigation conduct (such as section 128.7) largely or entirely ineffective.
In Jacob B., the Supreme Court recognized that if the litigation privilege conflicted with the Constitution, the latter would have to prevail. (Jacob B., supra, at 40 Cal.4th p. 961.) A similar principle applies in the case of later-enacted statutes, such as section 724.070, whose legislative intent would be frustrated and nullified if the litigation privilege entirely prevented their application. Nothing in Jacob B. changes the controlling law with respect to that issue.
Since deciding Jacob B., the Supreme Court has in fact reaffirmed the principles that controlled our decision in Zocca I. In Action Apartment Assn., Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232, the court observed that it had frequently recognized “exceptions to the litigation privilege based on irreconcilable conflicts between the privilege and other coequal state laws.” (Id. at p. 1247.) The court explained the underlying principle as follows: “[O]ur recognition of these exceptions... has been guided by the ‘rule of statutory construction that particular provisions will prevail over general provisions.’ [Citations.] [¶] Each of the above mentioned statutes is more specific than the litigation privilege and would be significantly or wholly inoperable if its enforcement were barred when in conflict with the privilege.” (Id. at p. 1246, italics added.)
There has been no change in the controlling law since Zocca I was decided. Raffaele and Mary’s section 724.070 claim was not barred by the litigation privilege.
3. Relief from Default
Giovanni contends the trial court erred in granting Raffaele and Mary’s motion for relief under section 473, subdivision (b), and for leave to file their third amended complaint. This motion was filed after the trial court had granted Giovanni’s motion to strike Raffaele and Mary’s second amended complaint and taken Giovanni’s motion to dismiss under submission. The second amended complaint had been filed without first obtaining leave of court to do so, after the court’s deadline for filing the pleading had expired.
Section 473, subdivision (b), provides in relevant part as follows: “The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.... No affidavit or declaration of merits shall be required of the moving party. Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client... or (2) resulting default judgment or dismissal... unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect.”
Raffaele and Mary’s motion for relief from default was made on two alternative grounds: (1) the court should in its discretion set aside the default as to the second amended complaint because of their attorney’s excusable neglect, or (2) the court must vacate any default based on their attorney’s accompanying affidavit of fault. The motion for leave to file the third amended complaint was made under section 473, subdivision (a)(1), based on the court’s discretion to allow amendments to any pleading. Raffaele and Mary’s motion and accompanying attorney affidavit of default explained that their attorney believed he had timely served and filed a second amended complaint, but learned a few days later that the attempted electronic filing had never occurred due to his error in attempting his first-ever electronic filing. A second attempted filing by mail also failed, and counsel did not learn of this failure until nearly two months later. Counsel took full responsibility for failing to ensure that the second amended complaint was timely filed.
Section 473, subdivision (a)(1) provides in pertinent part as follows: “The court may, in furtherance of justice... allow a party to amend any pleading... by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect.... The court may likewise, in its discretion, after notice to the adverse party, allow... an amendment to any pleading or proceeding in other particulars....”
The trial court denied the motion for relief from default based on excusable neglect, but granted the motion based on attorney default. It also granted Raffaele and Mary permission to file their third amended complaint. Giovanni maintains that (1) an attorney affidavit of fault cannot provide grounds for allowing an amended pleading to be filed; and (2) mandatory relief from a dismissal is only available for an attorney’s failure to adequately oppose a motion to dismiss, not for conduct, such as failing to timely file an amended pleading, that precedes the motion to dismiss.
Giovanni’s arguments with respect to deficiencies in the motion for relief served on November 1, 2006—its failure to include the third amended complaint or to argue attorney fault grounds for relief—are not well taken. The motion filed on November 3, which was the motion heard and ruled upon by the court, did not suffer from these infirmities.
With respect to the first point, Giovanni fails to specify whether he is referring to the second or third amended complaint. If the latter, the motion for leave to amend was brought under subdivision (a)(1) of section 473, not under subdivision (b), so the attorney affidavit did not provide the grounds for the relief granted. If the former, the relief granted was from the default resulting from the order striking the second amended complaint, which is subject to subdivision (b).
Giovanni’s second argument—that dismissals for failure to timely file an amended pleading are not subject to the mandatory relief provisions of section 473, subdivision (b)—is beside the point. There was no dismissal in this case. The court struck Raffaele and Mary’s second amended complaint with the explicit condition, discussed in open court and incorporated in the court’s written order, that there would be no dismissal pending Raffaele and Mary’s motion for leave to file an amended complaint. Emphasizing that not allowing the case to proceed on the merits “would be a miscarriage of justice” to Raffaele and Mary, the court subsequently granted that motion and allowed the filing of the third amended complaint. The court had the discretion to do so under section 473, subdivision (a)(1), without regard to the attorney fault provisions of subdivision (b).
D. Prevailing Party Issues
Giovanni contends the trial court erred in determining that (1) Raffaele and Mary were the prevailing parties for purposes of awarding costs under section 1032, (2) Giovanni was not the prevailing party for purposes of awarding attorney fees under section 724.080, and (3) Giovanni was not the prevailing party under section 1141.21.
Giovanni’s arguments with respect to costs under sections 1032 and 1141.21 are all apparently premised on our anticipated reversal of the judgment in favor of Raffaele and Mary under section 724.070. Because we affirm that portion of the judgment, we reject Giovanni’s cost arguments under both sections.
With regard to section 724.080, Giovanni argues that he is entitled to prevailing party status even if we do not reverse the judgment rendered under section 724.070 because Raffaele and Mary in the end recovered nothing under that section. The court ultimately determined that Giovanni was entitled to offsets that eliminated even the statutory minimum $250 award to which Raffaele and Mary were each entitled after the jury trial. According to Giovanni, this makes him the prevailing party under section 724.080 because he achieved his litigation objective in preventing Raffaele and Mary from obtaining any damages whatsoever.
The authorities cited by Giovanni are unpersuasive. The issue pending before the Supreme Court in Goodman v. Lozano, review granted June 18, 2008, S162655, is whether a party who obtains no net monetary recovery due to a setoff can be deemed to be the prevailing party as a matter of law for purposes of section 1032. But section 724.080, unlike section 1032, contains no language requiring a net monetary recovery. In any event, the issue presented by this appeal is not whether Raffaele and Mary should have been deemed to be the prevailing parties under section 724.080 as a matter of law, since the trial court found neither side had prevailed, but whether the court was required to deem Giovanni the prevailing party merely because the monetary award against him was fully offset by another debt. It is difficult to see how the issue before the Supreme Court in Goodman v. Lozano sheds light on the latter question.
Goodman v. Lozano aside, the fact that Giovanni successfully raised his expired judgment as an offset does not make him the prevailing party under section 724.080. The statute contains no language requiring a defendant against whom no net monetary recovery is obtained be deemed the prevailing party. Giovanni obtained no recovery of the offset amount (or any other amount) for his own use. As the trial court pointed out, it would have a chilling effect on debtors seeking protection under section 724.070 if they were exposed to an attorney fee award unless they paid off all debts claimed by the creditor before suing under the statute. Such an interpretation would in fact undermine the principal purpose of the statute of protecting judgment debtors from unscrupulous debt collection practices.
Cases involving the application of contractual attorney fee clauses when the underlying litigation ends in a split decision, such as Silver Creek, LLC v. BlackRock Realty Advisors, Inc. (2009) 173 Cal.App.4th 1533 (Silver Creek), are also of limited utility here. Silver Creek addressed the application of a contractual attorney fee clause governed by Civil Code section 1717 in a case in which Silver Creek prevailed on the principal contractual issue, the disposition of property worth $29.7 million, and BlackRock prevailed on the secondary issue of its right to recover a deposit of $1.13 million. (Silver Creek, at pp. 1537–1538.) Applying Civil Code section 1717’s definition of prevailing party as the party who recovers “greater relief in the action on the contract,” the Court of Appeal held that it was an abuse of discretion for the trial court to deny that status to Silver Creek. (Silver Creek, at pp. 1538–1542; Civ. Code, § 1717, subd. (b)(1).) Here, the trial court’s discretion was not limited by language like that in Civil Code section 1717, subdivision (b), and the relative success of the parties is not measured by a contract with a determinate dollar value. Raffaele and Mary’s success in the litigation is measured by a statute. Giovanni did not prevail in the “action... maintained pursuant to” section 724.070. Raffaele and Mary established that Giovanni violated section 724.070 and the trial court awarded them a total of $500 in damages. It was therefore entirely within the trial court’s discretion to deny Giovanni prevailing party status under the statute without considering the amount of Raffaele and Mary’s original damages claims.
The damages claims were only relevant, if at all, to whether Raffaele and Mary were entitled to prevailing party status. Because they have filed no cross-appeal from the trial court’s prevailing party order, we express no opinion on that issue.
In our view, the court properly denied prevailing party status to Giovanni under section 724.080.
III. DISPOSITION
The judgment is affirmed.
We concur: Marchiano, P.J., Graham, J.
Retired judge of the Marin County Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.