Bizarre Circumstances Led to Reversal and Denial of Motion to Dismiss Appeal of Fee/Costs Award.
Well, the fourth appeal in a longstanding mold/water intrusion/infestation dispute between a homeowner and HOA involved homeowners’ challenge to a judgment of dismissal in favor of HOA as well as the lower court’s order awarding HOA attorney’s fees of $37,336 and costs of $8,972.
The Fourth District, Division 3, in Adams v. Newport Crest Homeowners Assn., Case No. G045590 (4th Dist., Div. 3 Aug. 16, 2012) (unpublished), authored by Justice Moore on behalf of a unanimous panel, reversed the judgment of dismissal based upon a granting of a prior demurrer ruling where no leave was granted to homeowner on her pleadings.
Homeowner also challenged the fee/costs award, and HOA argued that the appeal should be dismissed or she waived the ability to challenge by not expressly appealing the subsequent postjudgment order. Good points, the appellate acknowledged, but not good enough under the strange procedural posture of the situation. What happened is this: demurrer ruling was made and notice of entry was served; fee motion was filed by HOA; homeowner filed her notice of appeal from a purported judgment of dismissal, but the appellate court wanted her to cure a deficiency by actually obtaining a judgment of dismissal; fee hearing held and fees awarded; and formal order awarding fees was filed on the same date as judgment of dismissal obtained (and, importantly, the judgment of dismissal included the fee award pronouncement in it).
Under these circumstances, the motion to dismiss/waiver argument did not prevail. “It would be a curious thing to hold that Adams was required to file a second notice of appeal from the same judgment in order to challenge the portion thereof containing the attorney fees award. Newport Crest cites no legal authority for the proposition that Adams’s challenge to the attorney fees award must be dismissed under the peculiar procedural posture of this appeal.” (Slip Opn., p. 24.) The waiver argument was rejected because it is axiomatic that a reversal of a dismissal judgment also means the fee award goes POOF!
BLOG PRACTICE POINTER--There is also another practice pointer emerging from this opinion. HOA’s motion to dismiss was found defective for failure to comply with California Rules of Court, rule 8.54. This rule requires a separate written motion from the respondent accompanied by a separate memorandum and possibly declarations or other supporting evidence. Simply making a motion to dismiss argument in appellate briefs is not compliant with rule 8.54.
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