Appellate Court Followed Fish v. Guevarra, Finding It Was Rightly Decided.
Many times in blogging over the years, we have stressed that postjudgment fees and costs rulings should be separately appealed as a preventive measure. The next case reinforces the prudence in following this general protocol.
Pfeifer v. John Crane, Inc., Case No. B232315 (2d Dist., Div. 4 Oct. 29, 2013) (published) involved a situation where plaintiffs recovered a total judgment of $21.2 million (with $14 million being punitive damages) against defendant for claims that defendant’s asbestos-laden products caused plaintiff husband’s mesothelioma. After the trial judge reduced past medical expenses and allowed an offset, the lower court awarded $75,145.76 in expert witness fees to plaintiffs as costs after the defendant rejected a prior CCP § 998 offer from plaintiffs.
Defendant challenged the costs ruling, but the appellate court determined it lacked jurisdiction to review the ruling.
The entered judgment provided that plaintiff would recover prejudgment interest and costs of $_____________, with the defense motion to tax later-sought costs filed after the date of entry of the judgment. Defendant did not appeal the subsequent costs ruling and its appeal notice did not reference the motion to tax costs. These were fatal defects.
The general rule is that parties should separately appeal postjudgment fees/costs rulings, but there is a narrow exception: later “fixing” of costs and fees will be deemed subsumed in an appeal from an original judgment. However, as we often see in the law, the narrow exception also has some exceptions. One of these “exceptions to the exception” derives from Fish v. Guevarra, 12 Cal.App.4th 142, 146-148 (1993), which determined that an expert fee award under CCP § 998 falls outside the narrow exception because 998 costs are not recoverable as a matter of right but are a discretionary exercise by the trial court. Fish determined that any such costs rulings in this particular situation had to be separately appealed, something the defendant did not do in Pfeifer. The defense argued on appeal that Fish was wrongly decided, but the appellate court disagreed based on important distinctions relating to 998 expert fee costs awards. In the end, the failure to separately appeal the motion to tax costs ruling was fatal as far as appellate review was concerned.
Comments