Breitenstein v. Parry

Filed 7/20/06 Breitenstein v. Parry CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Appellant Catherine Breitenstein appeals from a judgment of dismissal in a civil action based on the trial court's orders: (1) vacating the clerk's entry of dismissal without prejudice of Breitenstein's complaint; (2) sustaining respondent Vicki Parry's demurrer to Breitenstein's complaint without leave to amend; and (3) granting Parry's special motion to strike pursuant to Code of Civil Procedure section 425.16. [1] The judgment included awards of $2,730 in attorney fees and $971.30 in costs to Parry.

Breitenstein contends the trial court had no jurisdiction to vacate the dismissal or to rule on the demurrer or the motion to strike after her request for dismissal was entered. She also challenges the attorney fees award on the grounds that Parry's motion was not timely filed and did not provide her with sufficient notice of the fee request. Finally, she contends Parry's memorandum of costs was not timely filed.

We find no error and affirm the judgment.

Factual and Procedural History

I. Underlying Child Custody Action[2]

In April 2002, Breitenstein filed a paternity/child custody action (Santa Cruz County Superior Court Case No. PA 009842) against David P. (Father), the father of her two children. In June 2004, the court appointed respondent Parry, a licensed attorney, to represent the minor children of the parties (then ages nine and seven) in the highly contested custody action.[3] Parry accepted the appointment on a pro bono basis.

Following her appointment, Parry reviewed the court files and documents submitted by the parties. She met with both parents and the children. She also discussed the case with the children's therapist and individuals from Family Court Services. During the course of her representation of the children, Parry prepared three documents that were filed in the custody action, including: (1) a letter to this court dated July 21, 2004 in response to this court's request for an informal reply to a writ petition filed by Breitenstein; (2) a Declaration of Minor's Counsel dated August 5, 2004, in opposition to certain requests Breitenstein had made in the custody action; and (3) a Statement of Minor's Counsel in accordance with Family Code section 3151 dated September 2, 2004.

At some point in time, Breitenstein moved from Santa Cruz County to South San Francisco. In August 2004, the court altered the existing joint custody order and granted Father temporary physical and legal custody of the children. On August 16, 2004, the police â€