Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. BC322019, Brett Klein, Judge.
Law Office of Daniel J. Bramzon & Associates, Daniel J. Bramzon and Ross T. Kutash for Defendants and Appellants.
Law Offices of Steve S. Gohari and Steve Saeed Gohari for Plaintiff and Respondent.
ALDRICH, J.
INTRODUCTION
Defendants and appellants Alex Meruelo appeal from the order of the trial court denying his motion for attorney’s fees. The court reasoned that defendants’ counsel was a “stranger to the case” because, at the time counsel moved for attorney fees, no form substituting counsel into the case was on file in the trial court. We hold that the ruling was error. Counsel had filed a substitution of attorney form in the Court of Appeal and so the failure to file the form in the trial court constituted a mere technical irregularity that should not preclude defendants from recovering contractually authorized attorney fees. Accordingly, the order is reversed.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff as lessee, Hopemart, Inc., brought an action against defendants alleging that defendants as lessor violated the express covenant of quiet enjoyment contained in the commercial lease agreement between the parties. The lease included the following attorney’s fees provision: the lessee, “shall reimburse the Lessor for all loss, damage and expense, including reasonable attorney’s fees, which the Lessor may suffer or be put to by reason of any such claims . . . or litigation[.]” At the close of trial, the court entered judgment in favor of defendants and plaintiff appealed.
After plaintiff filed its notice of appeal, defendants retained the Law Office of Daniel J. Bramzon & Associates, who substituted into the appeal. Bramzon served the substitution forms on all parties and filed them in the Court of Appeal. However, he never filed the form in the trial court. In an opinion filed November 17, 2006, this court affirmed the judgment of the trial court and the remittitur issued on January 19, 2007. Bramzon incurred a total of $60,648.75 in attorney fees defending the appeal.
Following the remittitur, defendants moved the trial court for an award of attorney fees incurred on appeal pursuant to the lease’s provision. The trial court denied the motion, citing Epley v. Califro (1958) 49 Cal.2d 849 and Code of Civil Procedure section 284, subdivision (1), i.e., that the trial court file contained no substitution of attorney form and so Bramzon was a “stranger to the record.” The court then denied Bramzon’s request for a short continuance to file the appropriate substitution forms. After the court denied defendants’ motion under Code of Civil Procedure section 473, defendants filed the instant timely appeal.
DISCUSSION
Code of Civil Procedure sections 283 and 284 govern the authority and substitution of counsel. They provide: “An attorney and counselor shall have authority: [¶] 1. To bind his client in any of the steps of an action or proceeding by his agreement filed with the Clerk, or entered upon the minutes of the Court, and not otherwise; [¶] 2. To receive money claimed by his client in an action or proceeding during the pendency thereof, or after judgment, unless a revocation of his authority is filed, and upon the payment thereof, and not otherwise, to discharge the claim or acknowledge satisfaction of the judgment.” (Code Civ. Proc., § 283.)
“The attorney in an action or special proceeding may be changed at any time before or after judgment or final determination, as follows: [¶] 1. Upon the consent of both client and attorney, filed with the clerk, or entered upon the minutes; [¶] 2. Upon the order of the court, upon the application of either client or attorney, after notice from one to the other.” (Code Civ. Proc., § 284.)
On this point, 50 years ago, in Epley v. Califro, supra, 49 Cal.2d 849, our Supreme Court stated: an “attorney of record has the exclusive right to appear in court for his client and . . . another attorney should [not] be recognized by the court in the conduct or disposition of the case. [Citations.]” (Id. at p. 854; accord, Davis v. Rudolph (1947) 80 Cal.App.2d 397, 402.) The trial court and plaintiffs rely on Epley.
More recent cases, however, reflect a trend toward greater flexibility in treating attorneys who appear on behalf of a party without having filed a substitution of attorney form. Baker v. Boxx (1991) 226 Cal.App.3d 1303 observed, “Where the actual authority of the new or different attorney appears, courts regularly excuse the absence of record of a formal substitution and validate the attorney’s acts, particularly where the adverse party has not been misled or otherwise prejudiced.” (Id. at p. 1309, italics added, citing Crocker National Bank v. O’Donnell (1981) 115 Cal.App.3d 264, 268-269 [failure to file substitution labeled “technical objection”]; In re Marriage of Warner (1974) 38 Cal.App.3d 714, 719-720; Carrara v. Carrara (1953) 121 Cal.App.2d 59, 62 [held jurisdiction not negated by irregularity in substitution].) “It would seem especially inappropriate to rest the fate of a critical pleading, not to say an entire action, on the isolated circumstance of a substitution’s not appearing earlier of record . . . .” (Baker v. Boxx, supra, at p. 1310.) “[T]he attorney’s actual authority bears more significance than the substitution document recording it.” (Ibid.)
Here, no prejudice exists and indeed plaintiff does not attempt to argue it was prejudiced or misled. “The main purpose of a substitution of attorneys is that both the court and opposing counsel may know that they are dealing with an attorney who has power to bind the party he purports to represent.” (Carrara v. Carrara, supra, 121 Cal.App.2d at p. 62.) We take judicial notice of the contents of the record from the earlier appeal in case No. B184027. (Evid. Code, § 452, subd. (d).) That record shows that defendants filed a formal substitution of attorney in this court that substituted Bramzon into this case on March 24, 2006. Subsequently, Bramzon authored the July 2006 respondent’s brief on behalf of defendants. Likewise, Bramzon argued the case before this court in 2006. Thus, plaintiff was quite aware of Bramzon’s authority to represent defendants and manifestly could not be prejudiced by the arrival in the trial court of Bramzon’s motion for attorney fees under the contract. In fact, the trial court suspected Bramzon properly appeared. It stated, “Don’t think I’m accusing you of coming in to handle the case without any knowledge or consent of the person who you say is your client. I’m not concerned about that.” Hence, a formal substitution of counsel filed in connection with the attorney’s fee motion would not have provided any additional notice.
In the absence of prejudice here, the trial court manifestly abused its discretion in denying defendants’ fee motion because (1) plaintiff was not prejudiced, (2) a substitution of attorney was filed in this court before Bramzon sought fees in the trial court, (3) Bramzon’s name appears on the appellate court’s opinion as counsel of record for defendants, and (4) the lease provided for attorney’s fees to be paid to defendants, not their attorney. “[I]t is better to dispose of ‘ “. . . causes upon their substantial merits, rather than with strict regard to technical rules of procedure. The discretion of the court ought always to be exercised in such manner as will subserve rather than impede or defeat the ends of justice.” ’ [Citation.]” (Carrara v. Carrara, supra, 121 Cal.App.2d at p. 63.)
Actually, the trial court’s ruling in this case is internally inconsistent. If defendants’ motion for attorney fees was improper because of the technical omission of the substitution of counsel form, then the court should not have ruled on the fee motion at all, but should have set it aside until the question of Bramzon’s authority to appear on behalf of defendants was clarified. That is, the court should have set aside the motion to allow Bramzon the opportunity to file a substitution with the clerk. Compounding that error was the court’s further ruling denying defendants’ request for a short continuance to file the appropriate substitution forms. When the court denied defendants’ fee motion, the time in which to bring such a motion had expired precluding defendants from bringing a new motion after filing a substitution of attorney form. (See Cal. Rules of Court, rules 8.278(c)(1) & 3.1702.)
In sum, counsel’s authority to represent defendants in this motion was clear to all as Bramzon’s representation of defendants was reflected in this court’s opinion. The trial court’s ruling has only forced defendants to undertake this appeal subjecting both parties to additional costs when a mere continuance would have sufficed to achieve the same result. The court’s orders constitute a manifest miscarriage of justice. (Cal. Const., art. VI, § 13.)
DISPOSITION
The order is reversed and the cause is remanded with directions to the Presiding Judge of the Los Angeles County Superior Court to assign the case to a judge other than Brett Klein to rule on defendants’ motion for attorney fees filed on February 23, 2007 in accordance with the views expressed herein. Each party shall bear its own costs of this appeal.
We concur: CROSKEY, Acting P. J., KITCHING, J.