Second District Does Not Rescue Appellant Who Failed to Appeal From Fee Award Order.
Appealing timely is a jurisdictional matter. Because postjudgment orders awarding or denying costs/attorney’s fees are separately appealable, losing parties need to be vigilant. If you happen to be asleep at the wheel (and don’t separately appeal the fee award), you do not even leave the plate and are sent to the dugout, rules the Second District in the case we next discuss.
Former Client sued his Former Attorneys, alleging legal malpractice and other torts arising from their representation of Former Client in a real estate matter. Former Attorneys won when their demurrers to Former Client’s Second Amended Complaint were sustained without leave to amend, based on Former Client’s failure to show causation or damages even at the pleading stage. One of the Former Attorneys (Respondent) also received an award of $19,169 in attorney’s fees pursuant to a fee clause in his retainer agreement with Former Client. Former Client appealed the judgment of dismissal (demurrer ruling), but never appealed the fee award order in Respondent’s favor. Former Client lost his appeal of the judgment of dismissal, a harbinger of bad things to come given his failure to appeal the fee award.
In Johnson v. Greenberg, Case No. B197894 (2d Dist., Div. 5 June 5, 2008) (unpublished, 3-0 decision authored by Justice Armstrong), the Second District affirmed Respondent’s fee award along jurisdictional grounds. The appellate court reasoned that a postjudgment grant of a fee award is separately appealable, citing Citizens Against Rent Control v. City of Berkeley, 181 Cal.App.3d 213, 223 (1986); Rich v. City of Benicia, 98 Cal.App.3d 428, 432 (1979); and Raff v. Raff, 61 Cal.2d 514, 519 (1964). Because Former Client never appealed from this particular order, the appellate court had no jurisdiction to rule on the propriety of the fee award to Respondent.
Lesson learned: if you want to preserve challenges to a fee award (whether a grant or denial), make sure you separately appeal. Otherwise, you likely will suffer the same fate as the appellant in Johnson, who did not even get out of the proverbial litigation “box.”
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