CALIFORNIA ATTORNEY'S FEES

Appealability/SLAPP/Substantiation Of Fees: First District Entertains Challenge Of SLAPP Fee Award Even Though Fee Award Not Specifically Appealed

 

Informative Discussion of SLAPP Fee Appealability Cases and Block Billing Implications.

     Though unpublished, the appellate decision in LegacyQuest v. Rosen, Case No. A129177 (1st Dist., Div. 1 Jan. 27, 2012) (unpublished) has a great discussion of SLAPP fee order appealability issues as well as trial court discretion relating to block billing time submissions by fee claimants.

     Defendant won a SLAPP motion on plaintiff’s libel claim and was then awarded $23,449 in attorney’s fees under the SLAPP mandatory fee-shifting statute. Plaintiff appealed the SLAPP grant, but did not specifically appeal the second subsequent fee order.

     That meant that the appellate court first had to determine if it had jurisdiction to entertain the merits of the fee challenge, with two issues having to be resolved in the process.

Appealability: Tenant’s Appeal Of Merits Judgment Not Mooted By Lease Forfeiture Relief

 

Reason Is that Landlord Gained Fee Award Against Tenant as Prevailing Party.

     Mitchell Land & Improvement Co. v. Ristorante Ferrantelli, Inc., Case No. G043936 (4th Dist., Div. 3 Nov. 22, 2011) (unpublished), a 3-0 opinion authored by Justice Ikola, determined that a tenant appeal of an adverse unlawful detainer merits judgment was not moot. Landlord won the unlawful detainer, and tenant appealed--but subsequently was granted relief from forfeiture although landlord was awarded fees/costs of $68,000. Landlord initially argued that tenant’s appeal was moot based on the lease forfeiture relief. Nope, said the appellate court. The appeal was alive and well because landlord was the prevailing for a fee/costs award, such that a reversal of the merits judgment might impact on the prevailing party determination (something that did not happen anyway). However, the appeal was not moot as far as the merits were concerned.

     BLOG UNDERVIEW--Happy Thanksgiving to all of our readers and followers!

SLAPP: Sloppy Record Scotches Fees, But Appeal Court Synthesizes SLAPP Wisdom

Fourth District, Div. 2, Underscores That Compliance With Basic Appellate Procedure Is Necessary to Obtain Review of SLAPP Fees Issue.

     The next case, Dean Martin v. Inland Empire Utilities Agency, et al., Case No. E051217 (4th Dist. Div. 2, 8/18/11) (certified for publication), involves a complaint alleging causes of action deriving from purported racial and age discrimination and retaliation by Inland Empire Utilities Agency and its CEO, against plaintiff, “a self-described individual of ‘African-American Heritage,’” [that’s the Court’s language, not ours].  Defendants appealed from an order granting their anti-SLAPP motion with leave to amend.  Defendants contended the court erred in granting their anti-SLAPP motion as to only one cause of action, granting the motion with leave to amend, failing to rule timely and properly on 33 evidentiary objections, and failing to award them attorneys fees as the prevailing party.

     Aside from an excellent hint in the first paragraph of this 31 page opinion as to how it will end (“Affirmed”), footnote 5 also provides excellent clues:  “Defendants failed to designate for inclusion in the record on appeal their motion for attorney fees, the reporter’s transcript of the hearing on their motion for attorney fees, or the minute order for that hearing.  Moreover, the register of actions included in the clerk’s transcript reflects a hearing on the motion for attorney fees, but does not indicate how the court ruled on that motion.”  Take heed, fellow practitioners!

     We suspect that one of the reasons the case was published is that it provides a coherent statement regarding appellate jurisdiction and anti-SLAPP motions for attorney fees:

“While none of these cases is directly on point, the single coherent thread weaving through the tapestry of cases on anti-SLAPP motions for attorney fees, as well as any cursory review of basic appellate procedure, is that a party must, at minimum, file a notice of appeal from the order on the motion for attorney fees itself, or from a final appealable judgment entered thereafter.  Therefore, this court has no jurisdiction to hear an appeal from an order rendered after defendants filed a notice of appeal from an appealable appellate interlocutory judgment.”

     Here, plaintiffs failed to file a notice of appeal form the order denying their motion for attorney fees.  Instead, they appealed from an order granting, with leave to amend, their SLAPP motion – and their notice of appeal failed to mention an intent to appeal the court’s ruling on their motion for attorney fees.

     And what about the failure to timely rule on objections to evidence?  Yup, that was a mistake alright, but the error was harmless.

     Finally, the Court of Appeal concluded that defendants hadn’t even prevailed on their anti-SLAPP motion.  Why?  “[B]ecause the court’s order granting defendants’ anti-SLAPP motion with leave to amend was the functional equivalent of a denial . . . .”

     So the plaintiff was spared having to deal with attorney’s fees.  But he is not home free:  “If plaintiff cannot amend the complaint to allege specific, unprotected speech, then defendants’ remedy may well be a sustained demurrer without leave to amend or a subsequently granted anti-SLAPP motion.”  Who knows?  The attorney fees issue may come up yet again in this case.

Appeal: Postjudgment Order Filling In Amount Of Fees Correctly Appealed By Challenging Initial Judgment, But Fee Challenge To $90,542.50 Award Nixed Based On Inadequate Appellate Record

 

Case Demonstrates Cardinal Rule of Appellate Practice.

    

     Although we have come close to preaching to our readers that you should separately appeal an underlying judgment and all fee awards (interim or modified), there are exceptions to the “separately appeal” rule relating to subsequent postjudgment fee awards. One of the most important is that when a later order fixes the amount of costs and fees, an initial appeal from the order with unspecified costs/fees “blanks” subsumes later orders such that it will not be fatal in not appealing the later “fixing” fee order. (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2010) ¶ 2:156.2, p. 2-73.)

     In Gerhart v. Piazza, Case No. E049909 (4th Dist., Div. 2 June 30, 2011) (unpublished), a horse trainer successfully sued for not getting the full benefit of a lease, recovering judgment for $80,200 and then obtaining a fee award of $90,542.50. (BLOG OBSERVATION--In line with our Mission Statement that fees are the tail that wag the litigation dog, look at how the fee recovery exceeded the amount of the underlying judgment.) Defendants appealed.

     The first issue is whether the failure to appeal a subsequent fee order “fixing” the fees meant the appellate court lacked jurisdiction. It didn’t, for the reasons explained in the first paragraph of this post.

     So, what happened on the merits? Affirmed. The reason was that appellants violated a cardinal rule of appellate practice--they failed to provide an adequate record for review. Appellants failed to include any of the fee motion paperwork, a transcript of a continued hearing, or even the challenged order. Because the record showed that all material matters were not included, the presumption of completeness accorded to an appellate record was overcome. (Cal. Rules of Court, rule 8.163.)

Appeal/Section 998: Prevailing Party Status From Rejected 998 Offer Examined In Fifth District Opinion

Primer on Allocation of Preoffer/Postoffer Costs in Instructive Decision.

     Code of Civil Procedure section 998, as we should know by now, is a legislatively-mandated statute that modifies the general routine costs provision of CCP § 1032 by augmenting or withholding the costs normally allowable under section 1032. Put another way, section 998 establishes a procedure for costs shifting upon a party’s refusal to settle. (Westamerica Bank v. MBG Industries, Inc., 158 Cal.App.4th 109, 128 (2007).)

     The Fifth District, in Warfield v. Chandler, Case No. F059208 (5th Dist. May 27, 2011) (unpublished), offers us a great primer on how sections 998 and 1032 operate for purposes of determining the prevailing party and then what must be done to augment/withhold recovery of certain costs depending on who “won” the 998 costs-shifting battle.

     Warfield involved a situation where plaintiff rejected a 998 offer that exceeded the award she ultimately received from the jury. (Under 998, in this situation, plaintiff may only recover preoffer costs, plaintiff cannot recover postoffer costs, and defendant may recover postoffer costs.) The trial court, however, got a little confused because the postoffer costs incurred by the defense exceeded the total judgment in plaintiff’s favor, so that it then decided the defendant was the costs prevailing party--awarding preoffer costs to the defense pursuant to section 1032(b). Plaintiff appealed this costs ruling.

     In a twist we see often, even though it agreed there was error, the appellate court affirmed because plaintiff appealed the prior judgment without appealing the postjudgment order relating to costs. That meant the court was without jurisdiction to hear the matter. (Kajima Engineering and Construction, Inc. v. Pacific Bell, 103 Cal.App.4th 1397, 1402 (2002).) However, the appellate court discussed the issue so it “may preclude repetition of the error” by the trial judge.

     The lower court should have followed this two-step methodology rather than dub someone the prevailing party after doing the preoffer/postoffer calculus: (1) the trial court determines the prevailing party utilizing the general rule of section 1032 and determine recoverable costs as permitted by section 1033.5; and (2) the trial court then augments or withholds the amount determined in step one pursuant to the dictates of section 998. “After these two steps are completed, the trial court’s cost award is complete.” The main flaw was that the trial court did not have authority to award a defendant preoffer costs pursuant to section 998(c).

     We thank Justice Cornell, on behalf of a 3-0 panel, for the 998/1032 primer.

Appealability: Trial Court Did Not Err in Deciding Attorney’s Fee Issues While the Modified Judgment Was on Appeal

First Appellate District, Division Three, Holds Trial Court’s Decision to Award Attorney Fees Following a Judgment Does Not Render the Appeal From Such a Judgment Futile

     City of Novato v. MCCE Development, LLC, et al. Case Nos. A127298 & A128928 (1st Dist., Div. 3 3/30/11) (unpublished), consolidates two cases on appeal, in a dispute that generated five (5) appeals.  The consolidated appeals involved the enforceability of a Subdivision Improvement Agreement against a party who took land subject to the SIA, but not as an assignee – very interesting, but not the subject of  our blawg.

     In their appeal of the attorney’s fee award, appellant’s sole argument was that it was error for the trial court to consider attorney fees while the appeal of the modified judgment was pending.  The Court of Appeal concluded that the “contention is not well taken.”’[A]n award of attorney fees as costs is a collateral matter which is embraced in the action but is not affected by the order from which an appeal is taken.  [Citation.]  Consequently, filing of a notice of appeal does not stay any proceedings to determine the matter of costs and does not prevent the trial court from determining a proper award of attorney fees claimed as costs.’” (Citing Bankes v. Lucas, 9 Cal.App.4th 365, 369 (1992).

     We note that in April 2010, the trial court had awarded attorney’s fees in favor of the City in the amount of $476,713, and directed the City to pay $2,000 in attorney’s fees to one party, Morf, as the prevailing party on a contract cause of action.  The trial court also directed payment to the City of an additional $161,284.23 in attorney fees in connection with appeal and post-appeal matters.  All those awards survived the instant consolidated appeals.

     The opinion is authored by Presiding Judge McGuiness, Justices Pollak and Jenkins, concurring.

Appealability/Deadlines: Once Notice Of Entry Of Underlying Judgment Is Served By Other Than Personal Delivery, What Is The Deadline To File An Attorney’s Fees Motion?

Stay Tuned if You Want to Know the Answer.

     So, you have been served with a notice of entry of judgment in which no new trial motion or JNOV motion is filed (after having prevailed) by either the clerk or another party, what is the time for filing a motion for attorney’s fees (which parallels the time for the adverse party to file a notice of appeal)?

     Answer: We believe the clear answer is 60 days. Cal.Rules of Court, rules 3.1702(a), 8.104(a)(1)-(2). However, what happens if the notice of entry is served by mail--does it extend the time to file the fee motion? We think the answer to this one is “no,” because the parallel time for filing a notice fo appeal is not extended because of service of a notice of entry of the judgment or order by mail, express mail, some other form of overnight delivery, or fax. Code Civ. Proc., § 1013(a), (c), (e); Baker v. County of Los Angeles, 2005 WL 2822412 (2005) (unpublished).

Appealability/Deadlines: Ninth Circuit Finds No Jurisdiction To Entertain Challenge To Substantial Fee Award

 

Failure to File Timely Supplemental Notice of Appeal from Fee Order Was Fatal.

     Here is an ouch! It reinforces a lesson that we have reminded our readers out there to observe time and time again: whether at the state or federal level, separately appeal any adverse attorney’s fees orders. It cannot hurt and may avoid what happened to the City of L.A. in the next case.

     In Hunt v. City of Los Angeles, Case Nos. 09-55750/09-55765 (9th Cir. Mar. 22, 2011) (for publication), City of Los Angeles lost its defense of the constitutionality of some Venice Beach Boardwalk ordinances in plaintiff’s civil rights action, with the district judge awarding plaintiff $207,285 in attorney’s fees on July 10, 2009. City subsequently filed an untimely notice of appeal from the fee order, one that was withdrawn. City challenged the fee award in its appeal from the underlying merits judgment.

     Too late, said the Ninth Circuit. It had no jurisdiction to consider the challenge to the fee order because City failed to timely file a supplemental notice of appeal from separate fee order. (E.E.O.C. v. Wal-Mart Stores, Inc., 187 F.3d 1241, 1250 (10th Cir. 1999); Doughtery v. Lehman, 711 F.2d 555, 558-559 (3d Cir. 1983).) Again, for emphasis, avoid this ouch! by separately appealed fee orders.

Allocation/Appealability/Homeowner Associations/Reasonableness Of Fees: $190,065 Fee Award Affirmed in “Acrid Dispute Between Neighbors” Under CC&Rs

Trial Court’s Significant Reductions in Requested Fees Obviated Need to Apportion With Mathematical Precision.

     The next case illustrates a result we see often in appellate decisions when apportionment of fees is necessary as between compensable and noncompensable claims: a lower court’s reduction of fee requests obviates the need to perform a CPA-like audit of billings when undertaking apportionment activities.

     In our prior post of June 25, 2009, we explored Harm v. Hetman (Harm II), a case where the Fourth District, Division 3 reversed the denial of a $201,150 fee request by plaintiffs in “an acrid dispute between neighbors” in an HOA. The reversal occurred based upon an earlier appeal in which certain ruling reversals meant that plaintiffs were prevailing parties under the CC&Rs, Civil Code section 1717, and Civil Code section 1354. Now, this “acrid dispute” apparently has ended for now with the third appeal affirming the lower court’s award of fees to plaintiffs upon remand.

     Harm v. Hetman, Case No. G043206 (4th Dist., Div. 3 Mar. 16, 2011) (unpublished) (Harm III) involved an appeal from the lower court’s decision to award plaintiffs the total sum of $190,065 in attorney’s fees, broken down as $75,754 for trial work and $114,311 for appellate work. Defendant Hetman appealed.

Appeal/Interpretation of Fee Clause: Appellate Court Finds Challenge To Fee Entitlement Was Forfeited

 

Appellants Had Only Contested Amount of Fees Below, Not Raising Problems With Fee Entitlement.

     Here is one from the Third District that serves to underscore a crucial lesson for both trial and appellate practitioners: raise challenges at the lower court level or risk having them declared waived at the appellate level. That happened in the next case.

     In Valdovino v. Mason McDuffie Real Estate, Inc., Case No. C062169 (3d Dist. Feb. 2, 2011) (unpublished), seller prevailed against buyers and seller’s brokerage agent by establishing that no real estate purchase contract existed, with there being fees clauses in both the proposed purchase and listing agreements. Postjudgment, the trial court ordered buyers to pay more than $107,000 of seller’s attorney’s fees under the proposed purchase agreement fee clause and also ordered broker to pay $94,761.50 in fees under same clause. However, in opposing the fee request below, broker only challenged the amount of the fees, not the basis for entitlement. Bad error.

     On appeal, the Third District found broker forfeited a challenge to fee entitlement. What made matters worse was that broker had contested the right to fees in opposition to buyers’ separate fee motion, but did not do so when opposing seller’s motion. Appellate courts have discretion to consider issues raised for the first time on appeal, but this is usually reserved for pure questions of law where the public interest or public policy is involved. (Bayside Timber Co. v. Board of Supervisors, 20 Cal.App.3d 1, 5 (1971).) Neither of these concerns were present in this private controversy, such that the Third District declined to visit the entitlement issue by affirming the challenged fee award.

Appealability: Recent Case Reinforces Lesson We Have Stressed In the Past--Separately Appeal Adverse Fee Orders

Notice of Appeal of Merits Motion Denial Did Not Give Appellate Court Jurisdiction to Rule on Later Fee Ruling.

     One nice thing about our blog is that the appellate courts have to decide disputes all the time and, in doing so, reinforce lessons that we have discussed as arising from prior posted cases. One more time, folks . . . . protectively appeal separate adverse fee orders, even if you think the fee orders are encompassed with some prior merits determinations. The litigants in the next case did not appeal the fee order, much to their chagrin.

     What happened in Auto Auction Group, Inc. v. Ritz Leasing, Inc., Case No. B216247 (2d Dist., Div. 3 Jan. 26, 2011) (unpublished) is that certain parties had a motion to amend a judgment denied, which denial was appealed straightaway. The winning litigants in the amendment motion moved for fees, which was litigated after the date of the appeal notice relating to the amendment motion. The lower court granted the winning litigants fees of $81,028.99. The losing litigants on the motion to amend judgment appealed both the merits and the adverse fee orders.

     With respect to the fee order, the appellate court determined it did not have jurisdiction to consider the propriety of the order. Reason? The fee order was the product of a motion that was litigated well after the filing of the notice of appeal relating to the judgment amendment motion. As such, the appellate court was without jurisdiction to act on the fee issue. (Colony Hill v. Ghamaty, 143 Cal.App.4th 1156, 1171-1172 (2006).)

     By now, we hope the moral of the story is clear on appealing adverse fee orders. We can’t give legal advice, but believe this case illustrates what happens when protective action is not taken.

Appealability: Litigant Could Not Appeal Fee Award Through Appeal Of A Future Ruling Prior To The Actual Hearing On Fees

Second District, Division 5 Rules on Applicability of Grant v. List & Lathrop.

     In Silver v. Pacific American Fish Co., Inc., Case No. B214450 (2d Dist., Div. 5 Nov. 30, 2010) (certified for partial publication, on the fee issue), the appellate court confronted whether a cross-complainant correctly appealed a postjudgment order awarding fees to Pacific where the appeal was made from a fee ruling prior to the hearing on the actual fee motion. Under these circumstances, the appeal was untimely and did not encompass the later ruling, which was never appealed from subsequently. (First American Title Co. v. Mirzaian, 108 Cal.App.4th 956, 960 (2003).)

     This case really had the appellate court confronting the applicability of Grant v. List & Lathrop, 2 Cal.App.4th 993, 998 (1992). The Court of Appeal found Grant less applicable than Norman I. Krug Real Estate Investments, Inc. v. Braszker, 220 Cal.App.3d 35 (1990), where both entitlement and amount of fees were at issue and an appeal was found untimely. Because entitlement was also at issue in the premature appeal here, it would have vitiated the “separate appealability” rule generally applied to fee awards if Grant was extended outside the fee amount context.

Section 1717 And Appealability: Post-Jury Fee Award Was Appealable, Not Premature, Under Section 1717.

 

Second District, Division 4 Nixes Appellant’s Reliance on Parsed Language from Butler-Rupp.

     In Sherwyn v. Nathaniel, Case No. B215666 (2d Dist., Div. 4 Sept. 1, 2010) (unpublished), defendant defensed plaintiff attorney in a jury trial involving attorney’s effort to collect unpaid fees that were claimed to be owed for a prior divorce representation of defendant. The trial court then awarded defendant $31,250 in attorney’s fees based on Civil Code section 1717 (due to the presence of a fee clause in the retainer agreement between the parties). Plaintiff appealed the fee award, principally arguing that it was premature.

     Not so, said the Court of Appeal. Butler-Rupp v. Lourdeaux, 154 Cal.App.4^th 918 (2007), the case relied on by plaintiff, did not state that the trial court does not have the discretion to award attorney’s fees following the entry of final judgment on the litigation before it—it just cannot do so during an interim stage of the case. A jury had returned a defense verdict, so there was a prevailing party and the trial judge did not err in so finding notwithstanding that plaintiff intended to file a notice of appeal.

Appealability: Interlocutory Order in Partition Action Finding Party Prevailed and Incurred Attorney’s Fees for the Common Benefit was Not Appealable

Second District, Div. 4, Explains that Interlocutory Judgment Determing Interests of the Parties and Ordering Partition is Appealable – But Interlocutory Order Finding a Party Prevailed and Incurred Costs and Attorney’s Fees for the Common Benfit of the Parties is Not Appealable.

     In Alaeddin Enayati v. Hessamedin Enayati, B213264 (2nd Dist., Div. 4 July 21, 2010) (unpublished) plaintiff, cross-defendant and respondent Alaeddin Enayati sought partition of property.  The trial court found that Alaeddin was the prevailing party, and that he had incurred costs and attorney’s fees for the common benefit of the parties.  The trial court did not rule on the amount of fees to which Alaeddin was entitled.

     In a partition action, the trial court determines whether the party has the right to partition.  If the court determines that the plaintiff is entitled to partition, it makes an interlocutory judgment determining the interests of the parties.  This interlocutory judgment is appealable.  Once the property is sold or divided, the trial court enters a final judgment. 

     On appeal, Hessamedin contended that it was improper to find, in an interlocutory order, that the services of Alaeddin’s attorney were for the common benefit, and the reasonable value of the services.  “[A] finding in an interlocutory order that a party has incurred fees for the common benefit, by itself,” explained the Court of Appeal, “does not constitute a final determination that the party is entitled to a determinate fee award.”   Presumably a fee award will be issued in connection with the final judgment in the partition action, and at that time, the fee award could be appealed.  The 3-0 opinion was authored by Justice Manella.

Appealabiliy: Prior Appellate Reversal Of Attorney’s Fees Award Seals Fate For Supplemental Fee Award Appeals By Both Sides

One Supplemental Fee Order Is Summarily Reversed on Appeal; Another is Dismissed as Moot.

      Here is a post that only appellate practitioners can love. However, we examine all decisions across the board (and do argue on appeal ourselves, on occasion). So, here you go.

      Plaintiff appealed a fee award awarding bank more fees in obtaining a previous fee recovery, and bank appealed from the supplemental fee award on the ground it should have been higher. Then, before these two appeals could be heard, an appellate court reversed the initial fees and costs award to the bank in an opinion that we reported on in a December 1, 2009 post. So, how did the Court of Appeal deal with the subsequent appeals?

     The answers lie in Gaggero v. First Federal Bank of California, Case No. B210900 (2d Dist., Div. 1 May 7, 2010) (unpublished).

     And, the winning answers are ….. (1) bank’s supplemental fee orders were summarily reversed so that no fee orders were intact -- a dismissal of Gaggero’s appeal would not have accomplished the desired end, because it would have left the supplemental fee award as a final, enforceable order (cf. Weinstat v. Dentsply Internat., Inc., 180 Cal.App.4^th 1213, 122 (2010)); and (2) bank’s appeal for higher fees was dismissed as moot.

     Sounds good to us!

Law Of The Case: Prior Appellate Opinion, Never Challenged On Rehearing Or Supreme Court Review, Was Law Of The Case On Fee Determination

 

Mere Disagreement With Prior Appellate Opinion Does Not Impact Law of the Case Doctrine.

     In Tennen v. Finstad, Case No. B217765 (2d Dist., Div. 2 Feb. 10, 2010) (unpublished), losing litigants on an order denying an attorney’s fees motion brought a prior successful appeal in which the Court of Appeal reversed an order denying the request to award attorney’s fees. The loser on appeal failed to file a petition for rehearing or for review with the California Supreme Court. Loser (who was ordered to recover postoffer fees and costs by virtue of a CCP § 998 offer) appealed the prior reversal in favor of the parties held entitled to fees.

     Loser lost a bid for a reversal because he failed to challenge the prior appellate opinion correctly, invoking the application of the doctrine of law of the case. Because he simply disagreed with the prior appellate determination, this type of challenge does not demonstrate injustice so as to set aside application of law of the case. (Morohoshi v. Pacific Home, 34 Cal.4^th 482, 491-492 (2004).)

Prevailing Party: $1 Million-Plus Fee Award Sustained On Appeal After Appellate Court Ordered A Remand To Award Fees To Prevailing Party

Second District, Division 6 Finds Lack of Record to Show Fees Were Excessive.

     Without sounding preachy, seriously, folks, if you are going to appeal, give the appellate court some authority and an adequate record. If not, you will be in the stance of the losing litigant in the next case we look at—having little chance of overturning a $1.2 million fee award.

     M&C Products Analysis Technology v. Bertik, Case No. B200090 (2d Dist., Div. 6 Dec. 3, 2009) (unpublished) involved a situation where the appellate court had earlier overturned a lower court’s denial of attorney’s fees under circumstances where the lower court had found that plaintiff was the prevailing party for purposes of fee recovery under Civil Code section 1717 and Labor Code section 218.5. On remand, the trial court awarded plaintiff around $1.2 million in fees for prevailing at trial and then on appeal.

     Although defendant appealed, it did not go very far. Reason you ask? Simple. Defendant failed to cite to any cogent authority and did not provide an adequate record for purposes of demonstrating error. That made it simple for Justice Perren, the author on behalf of a 3-0 panel of the Second District, Division 6, who affirmed the substantial fee award in favor of plaintiff.

     Moral:  Don't slip on a banana appeal.

Appeal: Appeal From Amended Judgment Inserting Fee Award Did Not Preserve Appeal Of Merits Judgment

 

Fourth District, Division 1 Reminds Us All of An Important Lesson in the Appellate Arena.

     The Fourth District, Division 1, provided us all with an important reminder of timely appealing judgments in order to preserve appellate jurisdiction. In Gravelle v. Aquadek, Case No. D054215 (4^th Dist., Div. 1 Nov. 17, 2009) (unpublished), defendant lost a bench trial where an adverse judgment was entered on May 23, 2008 with an indication of “zero” for the amount of attorney’s fees and costs to be awarded. Later, on September 25, 2008, the trial court entered an amended judgment identical to the May 23 judgment except plaintiff was awarded attorney’s fees in the amount of $26, 240. Defendant appealed more than 180 days from the May 23, 2008 judgment, challenging only the merits judgment rather the fee award. Big mistake. The failure to appeal timely the May 23 judgment was fatal, requiring a dismissal of the appeal of the merits judgment. (Torres v. City of San Diego, 154 Cal.App.4^th 214, 222 (2007).) Good reminder to make sure an appeal is taken, timely, from the right judgment.

Discovery Sanctions: $3,587.00 Deposition Sustained Because It Is Collateral And Not Independently Appealable Until Later

 

Sixth District Provides a Good Lesson in Properly Timing Appeal of Discovery Sanctions Under $5,000.

     This next unpublished case, in a 3-0 unpublished decision from the Sixth District, is a good reminder on when the appeal of smaller discovery sanctions orders—under $5,000—is properly made.

     In Stough v. Klure, Case No. H034000 (6^th Dist. Oct. 26, 2009) (unpublished), defendant/appellant was sanctioned a total of $3,587 for refusing to submit to questioning under oath at a deposition (a sanctions imposed in late February 2009 arising from a mid-January 2008 deposition). Four days prior to the sanctions order, the trial court denied defendant’s summary judgment motion. Unhappy about the sanctions, defendant appealed.

Attorney’s Fees On Appeal: Court Of Appeal Returns Fee Request to Trial Court When Winning Party Cannot Provide Predicate Basis Authority For Award Of Fees

Second District, Division 8 Volleys the Fee Request Back to the Lower Court.

     The next case illustrates the practical dynamics of appellate court practice: if you are going to request the appellate court to award fees to you as the prevailing party, provide specific authority supporting such a request. Otherwise, the request will be denied and returned to the lower court to sort out whether fees are justified and then determine the reasonable amount of fees to be awarded. That is exactly what happened in Campos v. Oppenheimer Funds Distributor, Inc., Case No. B201789 (2d Dist., Div. 8 Aug. 12, 2009) (unpublished).

     In Campos, the Court of Appeal dismissed an appeal of a nonappealable order of dismissal in an action that also contained an interpleader cross-complaint. The winning respondent on appeal requested the appellate court to award it costs and attorney’s fees as the prevailing party. Although finding that respondent was entitled to an award of routine appellate costs, it failed to provide the appellate panel with clear authority as to why it was entitled to an award of attorney’s fees on appeal. Given this situation, what did the appellate court do? You guessed it. Respondent was awarded costs on appeal, but the matter was remanded to the trial court for purposes of determining if respondent was entitled to fees (and, if so, for the further purpose of setting the reasonable amount of fees to be awarded). The Court of Appeal denied respondent’s fee request without prejudice and punted the issue back to the lower court for assessment.

     Lesson from this one—If you want the appellate court to find fee entitlement, make sure you provide them with particularized authority in the appellate briefing. Cursory references to statutes, without case authority showing why the statutes extend to fees on appeal, may result in what happened here: more work for the winning respondent before the trial court.

Appellate Reversal: Court of Appeal Publishes Costa Serena Decision

Case Holds that Reversal Moots Appeal of Attorney's Fees Denial Order.

     On July 17, 2009, the Fourth District, Division 1 certified for publication a previously unpublished decision, Costa Serena Owners Coalition v. Costa Serena Architectural Committee, Case No. D052903 (4^th Dist., Div. 1 filed June 24, 2009; published July 17, 2009). This case held that an order denying attorney's fees becomes moot when the appellate court issues the right type of reversal. We discussed this decision in our earlier June 24, 2009 post.

Labor Commissioner Appeals: Employer Wins $10,000 Fee Award Against Unsuccessful Ex-Employee

Fees Can Be Awarded Under Labor Code section 98.2(c).

     An employer is entitled to an award of reasonable attorney’s fees, in an amount to be determined by the trial court, when an employee unsuccessfully appeals from a Labor Commissioner’s ruling to the trial court. (Lab. Code sec. 98.2(c).) Cooper v. Golden Gate Reporters, LLC, Case No. A122156 (1^st Dist., Div. 4 June 26, 2009) (unpublished) involved application of this provision, where a trial court awarded winning employer $10,000 out of a requested $16,000 in fees. The award was affirmed under the deferential abuse of discretion standard.

     BLOG UNDERVIEW—The Court of Appeal actually helped employee out upfront. She appealed from a minute order awarding fees, not the later signed judgment. However, the appellate court liberally construed the notice of appeal to encompass the later order—a determination that has or has not been endorsed by other courts depending on the circumstances.

Appeal Reversal Impact: Moots Appeal By Reversed Winner Claiming Trial Court Error In Denying An Award Of Attorney’s Fees

 

Fourth District, Division 1 So Holds in Unpublished Opinion.

     What happens when an initial winner in a case cross-appeals a determination that denied winner an award of attorney’s fees but the appellate court eventually reverses the merits judgment in favor of initial winner? The answer is provided in Costa Serena Owners Coalition v. Costa Serena Architectural Comm., Case Nos. D052903 et al. (4^th Dist., Div. 1 June 25, 2009) (unpublished).

Receiverships: Order Approving Receiver’s Final Plan and Payment of Fees (Including Attorney’s Fees) Is An Appealable Order

 

Defendant’s Failure to Properly Appeal Order Precluded Substantial Review by Court of Appeal.

     If you are going to enter into the world of appellate practice, you must perfect your appeal by properly specifying what is being appealed. Otherwise, you are not likely to get to first base and certainly provide the reviewing court with an opportunity to dismiss the appeal or find it lacks jurisdiction to consider arguments on the merits. The next case, by and large, was decided on that basis, stemming from the appellant’s failure to properly file a notice of appeal from an appealable order.

     City of Montebello v. Uribe, Case No. B206672 (2d Dist., Div. 5 June 16, 2009) (unpublished) involved a receivership appointment to cure substandard housing conditions in a four-unit apartment building. (The City filed a petition for receivership appointment pursuant to Health and Safety Code section 17980.7.) A receiver was appointed, with his rehabilitation plan eventually being approved by the trial court. The receiver moved for approval of his final report and for payment of fees and costs. The trial court eventually approved receiver’s final report and approved his claimed fees and costs in the amount of $50,425.98 (even though property owner had asked for a $31-35,000 reduction). However, property owner never appealed the receivership payment order. Later, City moved to recover attorney’s fees and costs for prevailing in the receivership proceeding. The lower court awarded $53,000 to City, and property owner did timely appeal this fee/cost award. (Property owner’s notice of appeal also failed to make any mention of the prior receiver payment order.)

     On appeal, the appellate panel found it had no jurisdiction to consider any error with respect to the receivership payment order. The order fixing payment to the receiver was independently appealable, even where the award preceded a final judgment. (Los Angeles v. Los Angeles C. Water Co., 14 Cal. 121, 122-124 (1901); Fish v. Fish, 216 Cal. 14, 15-17 (1932).) However, appellant failed to mention this order in his notice of appeal; although these notices are liberally construed, the failure to specify each appealable judgment was fatal in the matter before the Court of Appeal. (Sole Energy Co. v. Petrominerals Corp, 128 Cal.App.4^th 212, 239 (2005).)

     Although property owner’s appeal was timely with respect to the fee/cost award in favor of City, the waiver doctrine ended his chances of a reversal. Property owner failed to cite authority or develop a cogent argument on the merits with citations to the record; this constituted a waiver. (Moulton Niguel Water Dist. v. Colombo, 111 Cal.App.4^th 1210, 1215 (2007).) The end result: both orders were affirmed because the notice of appeal and appellate briefing were inartful in nature, reinforcing that appellate practice is a specialty where attention must be given to detail.

Appealability: Plaintiff’s Acceptance of $2,000 Payment For Fee Award Impliedly Waived Appellate Rights

Second District, Division 1 Discusses Technical Appeal Issues, But Also Indicates Affirmance of Award on the Merits.

     When you are a plaintiff winning a fee award (which you believe was not large enough), be careful to avoid a waiver of appellate rights by accepting a check payment for the fee award. That is what happened in the next case—implied waiver precluded an appeal, although the appellate court did indicate in a footnote that the award would have been affirmed on the merits.

     In Casas v. Record Town USA, LLC, Case No. B210527 (2d Dist., Div. 1 June 15, 2009) (unpublished), plaintiff sued defendant for disability accommodation violations. (The American with Disabilities Act and state counterparts do have statutory fee-shifting provision that generally run in a prevailing plaintiff’s favor.) Plaintiff accepted a $1,000 payment for defendant’s unintentional violation of the ADA in full settlement of her claims, with the trial court retaining jurisdiction to decide the fees to be awarded to her attorneys. She also agreed to dismiss the action with prejudice upon payment of the settlement amount and any fees award. Plaintiff moved for $16,076.50 in fees and costs, but was only awarded $2,000. Defendant tendered a $2,000 check that was negotiated by plaintiff without protest. Plaintiff then appealed.

Enforcement of Costs/Fee Awards: Trial Court Still Has Discretion To Order An Undertaking For Postjudgment Costs/Fee Order Even Where Defendants Paid Off Prior Damages Judgment

First District, Division 1 Grants Writ of Mandate Because Trial Court Failed to Exercise Any Discretion on Undertaking for Substantial Cost/Fees Order.

     This post is somewhat complimentary to our June 12, 2009 post on Tracy v. Tracy, where a reversal and remand was required because a trial court failed to actually exercise its discretion based on a legal misreading of a judgment. Here, a similar situation arose in a post-judgment undertaking motion, where an aggrieved plaintiff filed a writ of mandate to remedy a perceived lower court error. Plaintiff was right to do so.

     W. Wong Construction Co., Inc. v. Superior Court, Case No. A124013 (1^st Dist., Div. 1 June 11, 2009) (unpublished) concerned a business plaintiff which won a $131,338.57 damages judgment, which they appealed but paid off. Later, the trial court awarded plaintiff costs in the amount of $28,672.56 and attorney’s fees in the amount of $370,955.20, determinations separately appealed. (BLOG OBSERVATION—Defendants prudently separately appealed the subsequent costs/fee order, a practice we have recommended many times in our category “Appealability.” The appellate panel did indicate that no separate appeal was necessary in this situation because the damages judgment did indicate that plaintiff was the prevailing party for costs and fees, which means the appeal of the first damages order subsumed the later order under Grant v. List & Lathrop, 2 Cal.App.4^th 993, 998 (1992) and later cases such as Amwest Surety Ins. Co. v. Patriot Homes, Inc., 135 Cal.App.4^th 82, 84 (2005). However, the Court of Appeal did agree with us, observing “[t]he normal practice, however, is to appeal both the judgment and the subsequent award” and citing in support Torres v. City of San Diego, 154 Cal.App.4^th 214, 222 (2007).)

Appealability: Failure To Appeal The Correct Fee Award Prevents Review

Third District Finds No Jurisdiction to Review Under Unusual Procedural Backdrop.

     In our category “Appealability,” we have canvassed many prior decisions on when an appeal of a prior merits judgment can also subsume and preserve appellate review for a subsequent postjudgment fee award liquidating the amount of the award. For example, we have looked several times at Grant v. List & Lathrop, 2 Cal.App.4^th 993, 997-998 (1992), where a notice of appeal subsumed a subsequent order awarding fees, but only when the prior award did find a litigant to prevail for fee purposes (with the amount to be liquidated in the subsequent order). However, there are decisions like DeZerega v. Meggs, 83 Cal.App.4^th 28, 43 (2000), which counsel that each appealable judgment or order must be expressly appealed (whether in a single notice or multiple notices) even where the several judgments and orders occur close in time.

     Plaintiffs’ failure to separately appeal the right order precluded review in Teichmer v. Grass Valley Terrace, Case No. C055877 (3d Dist. June 9, 2009) (unpublished), albeit under unusual facts.

Appellate Review: Include The Oral Argument Transcripts … Or Risk Affirmance Based On An Inadequate Record

First District, Division 4 Applies a Cardinal Appellate Principle.

     As we have stressed in past posts on appellate practice, litigants needs to make sure that they provide an adequate appellate record for review of fee determinations. If they do not do so, affirmance is a foregone conclusion. The next case illustrates this well.

     Zarate v. Manuel, Case No. A120686 (1^st Dist., Div. 4 May 28, 2009) (unpublished) involved an award of $69,753.97 in fees to a prevailing party successfully suing to enforce a written settlement agreement even though the party requested an award of $107,702.50. The party hit with the adverse fee award appealed, but did not include any record of the oral proceedings on the fee motion.

     That was a big mistake.

Civil Code Section 1717: Court of Appeal Reverses Fee Award Given That Neither Side Prevailed Under The Contract

Fifth District Overturns Based on a Pragmatic Assessment of Litigation Results.

     Who says that appellate courts are not pragmatic in their assessment of who prevailed for purposes of awarding attorney’s fees? That is the law after all, and the next case is an illustration of where a cause was reversed because neither side prevailed under the contract.

     Boland v. Baker, Case No. F054226 (5^th Dist. May 7, 2009) (unpublished) concerned litigation over a right of first refusal to buy adjoining property in which the trial court eventually concluded no side was entitled to damages or specific performance, because one side failed to candidly provide all the terms of the outside purchase offer so that the holder of the refusal right knew what do to initially (but was not really interested in exercising its refusal right given the pricey nature of the outside offer). Given these equities, it is no surprise that the lower court did what it did. However, the trial court did award the refusal right holders attorney’s fees and costs as prevailing parties under the purchase agreement fees clause.

     The Fifth District reversed the fees/cost award.

Fee Sanctions Under $5,000: Not Appealable

Second District, Division Two Applies CCP section 904.1(a)(12) in Venue Transfer Dispute.

     A.Z. Mashiah, Ltd. v. Christopher Ranch, LLC, Case No. B204185 (2d Dist., Div. 2 Mar. 23, 2009) (unpublished) reminds us all that only a sanctions order greater than $5,000 is immediately appealable under Code of Civil Procedure section 904.1(a)(12), one of the key appeal jurisdictional subdivisions.

     There, defendant lost a venue transfer battle and his attorney was sanctioned $2,090 under Code of Civil Procedure section 396b(b), which authorizes a court to order fees against a venue loser (with the fees being the personal liability of the attorney as between attorney and losing client in such an instance). Defendant and his attorney appealed the adverse rulings.

     Both lost. Defendant lost because a venue transfer order can only be reviewed through an appellate mandate petition. (Code Civ. Proc., sec. 400.) Attorney lost because the $2,090 sanctions order was not immediately appealable under section 904.1(a)(12), but could only be reviewed on appeal from any final judgment or by extraordinary writ petition. (Code Civ. Proc., sec. 904.1(b).) Thus, both appeals were dismissed.

Arbitration Petition Denial: Fees Not In Order Where Denial Was Only An Interim Procedural Victory

Third District Distinguishes Its Facts From Otay in Unpublished Decision.

     In California, attorney’s fees are generally not recoverable for interim procedural victories.   The “prevailing party,” for purposes of fee recovery, usually must await a final deposition on the merits. However, there are exceptions.

     For example, Otay River Constructors v. San Diego Expressway, 158 Cal.App.4^th 796, 801, 808 (2008) involved a sui generis fact pattern where the only proceeding being litigated in court at the time was a petition to compel arbitration. The trial court’s denial of the petition was a “discrete legal proceeding” giving rise to fees even if claims were pursued in another later action.

     Otay was distinguished recently in Hall-Mark Services, Inc. v. Harris & Associates, Case No. C056691 (3d Dist. Feb. 17, 2009) (unpublished). In contrast to Otay, there was pending litigation filed in court in which a petition to compel arbitration was initially denied. In a prior appeal, the Third District reversed the denial and remanded so that the petition to compel arbitration would be granted instead. The trial court granted the winning party in this case an award of routine costs but denied $37,589 in requested attorney’s fees. The lower court decided no contractual fees under Civil Code section 1717 were warranted until final disposition of the case.

Sanctions: $8,836 In Various Sanctions Affirmed Against Plaintiff Losing Claims Through Demurrer Or Summary Judgment

Court of Appeal Reverses $15,611.50 in 128.7 Sanctions Because “Safe Harbor” Papers Were Not Identical to Filed 128.7 Motion Papers.

     In a lengthy but informative unpublished opinion, the Fourth District, Division One affirmed and reversed some sanctions components assessed against a plaintiff who was defensed through demurrer and summary judgment law-and-motion proceedings in his investment fraud lawsuit. The decision has some valuable pointers on the right way to set up Code of Civil Procedure section 128.7 motions with proper pre-motion “safe harbor” papers.

Appealability: Separately Appeal A Postjudgment Fee Award Or Suffer The Cruel Sword of Dismissal!

 

Second District, Division 2 Reinforces Message Sent in Prior Posts.

     In our category: “Cases: Appealability,” we have stressed an important message that emerges from California state court cases: notwithstanding some nuances in unusual situations, litigants wishing to challenge attorney’s fees awards should always appeal the postjudgment fees award in order to preserve appellate rights. The next case is a recent illustration of how failing to do so resulted in the loss of appellate jurisdiction over the challenged fees award.

   

POOF! Principle: Top 6 Cases In Last Eight Months

     We are pleased that our fellow blawger, Greg May, presiding at The California Blog of Appeal, has recognized our inestimable contribution of the Poof Principle to California attorney's fees jurisprudence in his January 28, 2009 post.  The American Heritage Dictionary (online) defines "poof" thusly:  "Used to indicate a sudden vanishing: The magician waved a wand, and poof! The birds disappeared!"  

     We are impressed by the number of times our appellate courts make attorney's fees awards vanish.  We have coined the "poof principle" to describe this phenomenon.  Examples follow. 

Mixed Result In Decade Long Litigation: Substantial Attorney’s Fees Award Goes “Poof” When Plaintiff Should Have Been Given Leave To Amend, But Plaintiff Denied Post-Judgment Enforcement Fees

Second District, Division 7 Publishes Decision in Decade Long Battle Arising From Credit Impairment Allegations.

     Although too long to recite in detail (43 pages in length), Sanai v. Saltz, Case Nos. B198217 & B202787 (2d Dist., Div. 7 Jan. 26, 2009) (certified for publication) chronicles a donnybrook between a former in pro per renter (a transactional lawyer who learned litigation along the way), credit-reporting service, and landlord over a credit reporting dispute arising out of claimed unpaid rent under $5,000. (Yes, you heard that right.) The case demonstrates the “poof” principle and reinforces that a judgment must award fees in order for the judgment creditor to obtain post-enforcement attorney’s fees by statute.

      Click it up; here are the facts.

Costs: Order Directing Set Aside of Settlement Funds Based On Costs Award Results In Issuance Of Appellate Mandate Writ

Second District, Division 2 Overturns Set Aside Order, But Does Not Pass on Validity of Lien.

     A defense judgment involving a costs award is usually automatically stayed without bond pending an appeal by the impacted party, such that execution efforts cannot go forward until the appeal is final. (Vadas v. Sosnowski, 210 Cal.App.3d 471, 475 (1989).) The next case involved an appellate writ petition, with the panel finding Vadas to be dispositive.

     In Stites v. Superior Court, Case No. B213360 (2d Dist., Div. 2 Jan. 15, 2009) (unpublished), defendants/real parties (Hilton) won a costs award against petitioner after winning summary judgment. Hilton filed a costs memorandum, seeking $14,750.32 in routine costs. Petitioner reached a settlement with other defendants, with Hilton filing a notice of lien based on the costs award in the litigation. Hilton also filed a motion to direct payment of the settlement funds to it, with petitioner appealing the summary judgment order. The trial court ordered the settlement funds frozen in a joint account to be maintained until there was a ruling on petitioner’s appeal. Petitioner sought mandate.

Anti-SLAPP Fees: Fee Award Not Cognizable Until Final Judgment And Fee Reduction Request Waived by Lack of Supporting Argument

Second District, Division 7 Finds No Basis to Reduce Fee Award to Anti-SLAPP Victor Any Further.

     If you are going to challenge the award of a mandatory fee to an anti-SLAPP victor, the message from the next case is to make sure that you have an appealable fee order and that you provide substantiated authority for a further reduction from any reduced amount already made by the trial court.

Appealability: Failure to Timely File Reconsideration Ruling Resulted In Dismissal of Appeal Challenging $70,408.75 Fee Award

Fourth District, Division Three Determines Notice of Reconsideration Ruling Does Not Need Any “Magic” Language to Trigger Running of Appeal Period.

     The next case is an interesting reminder to hit the books when determining what triggers the running of the appeal period in the context of reconsideration rulings.

     In Walshe v. Gelfand, Case No. G041115 (4^th Dist., Div. 3 Jan. 12, 2009) (unpublished), the court entered a judgment against appellant for attorney’s fees in the amount of $70,408.75 after dismissal of appellant’s complaint against defendants. Defendants served a notice of entry of judgment, and appellant timely moved for reconsideration of the fee award, which was denied in a minute order. Defendants served appellant with a document entitled “notice of ruling” on the reconsideration motion. However, appellant filed his notice of appeal 50 days after service of the reconsideration ruling notice. Motions were then filed by appellant and respondents in the appellate court as to the timeliness of appellant’s appeal. Appellant lost, and the appeal was dismissed in a by-the-court opinion.

     California Rules of Court, rule 8.108(e) requires that an appellant appeal a reconsideration motion order by the earliest of (1) 30 days after the superior court or a party serves an order denying the motion or a notice of entry of that order, (2) 90 days after the first motion to reconsider was filed, or (3) 180 days after entry of the appealable order.

     In the case before it, the 4/3 appellate panel determined that trigger (e)(1) was fatal. Although appellant argued that the “notice of ruling” was inadequate given that “notice of entry of order” language was required, the Court of Appeal rejected this contention. Rather, rule 8.108(e)(1) “does not require any particular title for a document to trigger the 30-day deadline” (Slip Opn., at p. 3), contrasting it with rule 8.104(a)’s explicit requirement of service of a “document entitled ‘Notice of Entry’ of judgment or a file-stamped copy of the judgment” to start the 60-day clock for the “normal time” to appeal. Because the appeal was 20 days past the 30-day appeal deadline, appellant’s appeal was dismissed.

     The panel of justices on Walshe—Presiding Justice Sills; Justice Moore; and Justice Fybel.

    Hourglass:  (c) S. Sepp, 2007, Wikipedia Commons.

Civil Code Section 1717: Fees Incurred In Previously Dismissed Action Properly Allowed In Refiled Action Where First Action Work Necessarily Used in Second Action.

Fourth District, Division Three Also Faces Grant/P R Burke Appeal Untimeliness Issue.

     Two interesting issues were raised in Presiding Justice Sills’ opinion on behalf of the Fourth District, Division Three in Kenney v. Tanforan Park Shopping Center, Case Nos. G038323 & G039372 (4^th Dist., Div. 3 Dec. 15, 2008) (unpublished). The first concerns timeliness of an appeal, involving debate around an issue that needs clarification. The second concerns whether the Santisas bar—precluding a fee award under Civil Code section 1717—applies where the work in the previously dismissed action is used in a subsequent refiled action. Keep reading and you will determine how these issues were resolved.

Appealability: Another Reminder To Separately Appeal Subsequent Fee Award

Appellate Jurisdiction to Hear Fee Award Challenge Is Likely Not Cognizable

     In our category “Cases: Appealability,” we have reviewed numerous decisions from state appellate courts indicating that subsequent orders awarding attorney’s fees must be separately appealed where there is no mention of fees in a prior merits judgment. Averbuch v. Strekovsky, Case No. B201764 (2d Dist., Div. 8 Dec. 2, 2008) (unpublished) reinforces the teaching of those decisions. There, Father failed to appeal a subsequent fee order, never even mentioning it in the notice of appeal from a prior judgment that did not deal with fees at all. Result: the challenge of the fees award was not cognizable and was not entertained by the appellate court.