Appealability: Failure To Timely Appeal Original Judgment Determining Prevailing Party Or Subsequent Fee Order Fixing Costs Doomed Any Merits Challenge Of Fee Award

As We Have Said Before, Appeal Judgment As Well As Subsequent Fee Order To Be Safe.

            This next case from our local Santa Ana court stresses a recommendation we have throughout the years encouraged practitioners to heed:  appeal both a final judgment (the original one, not amended) and a subsequent postjudgment fee order separately.  (Torres v. City of San Diego, 154 Cal.App.4^th 214, 222 (2007).)

            What happened in Tiger Loans, Inc. v. Hao, Case No. G058954 (4^th Dist., Div. 3 Feb. 9, 2021) (unpublished) was that plaintiff ex-employer lost most of its misappropriation claims except for a $32.80 award on a duty of loyalty claim, while defendant ex-employee won $8,691.30 on wage/hour counter-claims.  Subsequently, ex-employee won $124,302 in fees and $17,222.74 in costs based on certain Labor Code fee-shifting provisions—which shows how the fees award can certainly be disproportionate to the compensatory recovery in this area.  The original judgment determined ex-employee was the prevailing party, a subsequent fees/costs order was entered in favor of ex-employee, and later an amended judgment was entered containing the amount of the fees/costs ruling.  Ex-employer appealed the fees/costs award.

            The Fourth District, Division 3, in a 3-0 decision authored by Justice Thompson, dismissed the appeal.  The problem was that the ex-employer appellant failed to timely appeal the fees/costs ruling.  Although notice of entry of the original judgment or the subsequent fees/costs order was not done such that the outside 180-day appeal period applied, appellant appealed 266 days after the original judgment and 184 days after the fees/costs order.  The amended judgment merely added costs and fees to the original judgment, such that it did not extend the time to appeal from the original judgment.  So, no jurisdiction to consider the fees/costs ruling against ex-employer.  Moral of the story—appeal the original judgment, the subsequent fees/costs order, and the amended judgment.  Even if some are determined to be duplicative or subsumed, you at least get your chance on the merits of an appeal!