Fourth District, Division Two Is Also Dismissing Settled Appeals, But Still Issuing Its Views In Appeals Dismissed Late In The Appeal Process Or In Appeals With Minimal Merits.
CDFT Limited Partnership v. DKN Holdings, LLC, Case No. E067583 (4th Dist., Div. 2 July 29, 2019) (unpublished) was a situation where one successful group of cross-defendants tried to recoup attorney’s fees from an unsuccessful cross-complainant for a breach of fiduciary claim for work incurred with respect to co-cross-defendants. The basis for the fee request was the “tort of another” doctrine. The Fourth District, Division 2 would have none of it, because the tort of another doctrine does not apply to the situation where a plaintiff (or, here, the cross-complainant) alleges damages by the joint negligence of co-defendants in the same action because it would be a total emasculation of Code of Civil Procedure 1021 in tort cases (the section allowing parties to really choose how they wanted to deal with attorney fee compensation in a bargained-for situation). (See Gorman v. Tassajara Development Corp., 178 Cal.App.4th 44, 80 (2009).)
However, the unpublished opinion—in line with one co-contributor Mike saw in a non-fee opinion—offers some insights into the 4/2 DCA’s treatment of appellate parties who settle late into the process where the appellate court has “worked up the case.” The 4/2 DCA is the only appellate court which issues a written tentative decision in advance of oral argument, although some divisions in the Second District are issuing shorter tentative written decisions handed out on the day of oral argument. (In one recent case, the 2/1 DCA issued an oral tentative decision before the attorneys argued the matter.) The appellate parties here, after reading the tentative decision, decided to settle and requested to dismiss their respective appeals. The 4/2 DCA did so, but still issued its views on the issues given its perception that the dismissal requests were tardy in nature and that the appeals had minimal merit. So, if you are going to settle in a 4/2 DCA appeal, you might want to do it sooner than later!