Appealability, POOF!: Dismissed Defendants’ Later $155,182.50 Fee Award Went POOF! On Appeal Because Defendants Did Not Attempt To Correct Earlier Judgment Indicating No Fees Were To Be Awarded

Lower Court Had No Power To Change Prior Judgment And Then Award Fees.

            The result in this case may sound harsh, but it appears to be legally sound.

            In Schermer v. Upland Cascade, L.P., Case No. D072997 (4^th Dist., Div. 1 Jan. 11, 2019) (unpublished), a first superior court judge “struck” class allegations against defendants, such that the case became a direction against numerous defendants. The first judge denied a defense motion for attorney’s fees without prejudice, finding it premature until the conclusion of the case on the merits in the direct action. Dismissed defendants then won a judgment on the pleadings dismissing the action, with the minute order saying zero fees to defendants and with defendants to prepare a judgment (which they did) with the same language. This judgment of dismissal was never appealed. However, later, a second superior court judge granted defendants $155,182.50 in fees against plaintiffs, prompting an appeal.

            Plaintiffs won. Although not raised by any of the parties, the appellate court gleaned and asked for supplemental briefing about the earlier judgment, never appealed, containing a zero fees award. The 4/1 DCA decided that the language in the earlier judgment was binding, because the court had no ability to correct the earlier judgment through a subsequent fee award which was contrary to the previous judgment. (Ramon v. Aerospace Corp., 50 Cal.App.4^th 1233, 1236, 1238 (1996).) Just like that, the fee award went POOF! on appeal.