Appealability: Failure To Appeal Subsequent Costs Award After Final Merits Judgment Entered Nunc Pro Tunc Earlier Resulted In A Dismissal Of Any Challenge To The Costs Award

Opinion Reminds Practitioners To Separately Appeal Costs And Fee Orders.

               In California Spine and Neurosurgery Institute v. Boston Scientific Corp., Case No. H049966 (6^th Dist. May 23, 2024) (unpublished), plaintiff lost its case, resulting in a final merits judgment which was entered nunc pro tunc earlier and a later adverse costs award of $8,974.12, with many of the costs involving discretionary rather than “matter of right” determinations.  Plaintiff appealed from the final judgment, but nothing in its notice of appeal mentioned the costs award.

               Although both parties argued the merits of the costs award, the appellate court determined it lacked jurisdiction because the costs award was not appealed.  It went with the prudent rule that costs awards are separately appealable and that the costs award under consideration was not “incidental to the judgment” because no costs were mentioned in the judgment and most of the costs were discretionary rather than “as a matter of right” to fall within the Grant exception.