CALIFORNIA ATTORNEY'S FEES

Appealability, Sanctions: Defendant Unsuccessfully Appeals Trial Court’s Order Adopting Discovery Referee’s Recommendation On Apportionment Of Fees Claiming Apportionment Equated To Monetary Sanctions Exceeding $5,000

4/3 DCA Dismissed The Appeal As The Trial Court’s Interlocutory Order On The Discovery Referee Fees Was Not A Sanctions Order, Did Not Use The Word Sanctions, And Did Not Cite Authority To Impose Sanctions.

            The parties in Glickman v. Krolikowski, Case No. G064853 (4^th Dist., Div. 3 March 7, 2025) (published), stipulated to the appointment of a discovery referee.  The stipulation did not specify what portion of the referee’s fees would be paid by each party, but referenced Code Civ. Proc. § 645.1, with section 645.1(b) allowing for an apportionment of the fees among the parties.  When the trial court issued its reference order to implement the stipulation, it stated that the referee’s initial retainer would be paid 50 percent by each side, and that the referee’s report was to include the referee’s recommended allocation of payment.

Based on the parties’ conduct, the referee granted plaintiff’s apportionment motion and recommended that all of the recently incurred discovery fees of $22,750, plus the $1,750 in fees for the apportionment motion, be allocated to defendant.  Defendant unsuccessfully objected to this allocation, then filed an appeal claiming that one-half of the amount allocated to defendant was the equivalent of a monetary sanction in excess of $5,000 – making it subject to an interlocutory appeal.  Code Civ. Proc. section 904.1(a)(12).

The 4/3 DCA disagreed with defendant’s contention and dismissed the appeal.  The appellate panel found that the trial court’s order allocating discovery referee fees was not a sanctions order as the referee’s recommendation did not use the word sanctions, did not cite authority to impose sanctions, and relied on the discretion allowed for in the trial court’s reference order to apportion fees.  As a result, the trial court’s order was not a monetary sanction subject to appealability.  The trial court’s order was not a final judgment against defendant as reallocation of the payment of discovery referee costs could be made at the end of the lawsuit.  As such, defendant would have had to file a writ petition in order to immediately challenge this order.

Appealability, SLAPP: Defense Appeal Of Fee Award After SLAPP Merits Decided, Claiming More Fees Should Have Been Awarded, Was From A Non-appealable, Interlocutory Order

Appeal Was Dismissed.

               The defense in Ali v. Dignity Health, Case No. B331058 (2d Dist., Div. 5 Dec. 31, 2024) (unpublished) won some aspects of a SLAPP motion and was granted some mandatory fees, but the defense appealed and claimed that the SLAPP motion should have been granted in entirety and more fees awarded.  The fee motion and subsequent order ensued after the SLAPP merits were decided.  The DCA dismissed the appeal, determining that an order awarding or denying SLAPP fees made after determination of the SLAPP merits was a non-appealable, interlocutory order.  (Doe v. Luster, 145 Cal.App.4^th 139, 156 (2005).)

Appealability, Insurance: Lower Court Did Not Error By Awarding $2,718 In Brandt Attorney’s Fees In A Contingency Case Based On The Cassim Formula

Lodestar Analysis Does Not Apply In A Brandt Contingency Case Situation.

               Under Brandt v. Superior Court, 37 Cal.3d 813 (1985), a jury or lower court (via a posttrial stipulation for the court) can award attorney’s fees to a prevailing plaintiff as damages in an insurance case limited to the time spent to recover the benefits of the insurance contract.  Later, Cassim v. Allstate Ins. Co., 33 Cal.4^th 780 (2004) established how Brandt fees are to be determined in a contingency fee case where there are mixed claims:  the percentage of fees paid to the contingency attorney based on the work attributable exclusively to the contract recovery, with any work spent on other issues (usually tort claims) allocated out of the calculation.  The lodestar analysis does not apply to Brandt fee “damages.”

               Unfortunately for prevailing plaintiffs in an insurance case, the Cassim methodology resulted in just a $2,718 Brandt damages award after plaintiffs recovered $25,787,50.  That triggered an unsuccessful appeal in Saydman v. Aegis Security Ins. Co., Case No. G063209 (4^th Dist., Div. 3 Dec. 20, 2024) (unpublished).

               The appellate court first had to consider whether plaintiffs had timely appealed because they did not appeal the initial judgment before an amended judgment was entered after a separate posttrial proceeding on the Brandt issue.  Normally, plaintiffs would have been untimely, in their appeal, but because Brandt fees are damages, it was timely to appeal the amended judgment based on the bifurcated nature of the proceedings.

               But plaintiffs lost the merits challenge to the fee award.  The lower court did follow the Cassim methodology given the substantive award was small and following allocating out time spent on other claims.  It concluded this way: “Cassim dictates how Brandt fees are calculated in the context of a contingent fee—which was not the lodestar method—and we are bound to apply it.”  (Slip Op., p. 14.)

               Justice Motoike authored the 3-0 opinion.

Appealability: Failure To Appeal Order Denying Motion To Tax Expert Witness Fees Under CCP § 998 And Granting 128.5 Sanctions Over $5,000 Against Multiple Parties Means The Appeal Of Those Orders Had To Be Dismissed

Another Lesson We Have Preached:  Appeal Separate Costs And Sanctions Orders.

               In Abelar v. Providence Health System-Southern California, Case No. B321885 (2d Dist., Div. 3 Dec. 13, 2024) (unpublished), plaintiffs lost a medical malpractice case against numerous defendants, with the lower court imposing CCP § 128.5 sanctions of $11,425 against plaintiff’s counsel as to different defendants and denying plaintiff’s motion to tax costs, including expert witness fees based on CCP § 998 offers.  The appellate court dismissed plaintiff’s appeals from the sanctions and expert witness fee costs orders.

               The sanctions order appeal was dismissed because it was not separately appealed, and it exceeded $5,000; it did not matter that the award was in favor of different defendants—the aggregate amount of the award controlled.  The motion to tax costs denial order was affirmed because it was not separately appealed, and this is not an incidental award swept into the ultimate judgment—998 expert witness fees are different (Fish v. Guevara, 12 Cal.App.4^th 142, 148 (1993)).

Appealability, Costs, Fee Clause Interpretation: Lower Court’s Grant Of Expert Fee Costs To Defendant And Denial Of Attorney’s Fees To Defendant Affirmed On Appeal

Lack Of Adequate Record Doomed Both Appeals, But They Also Failed On The Merits.

               In Paige v. Nolan, Case No. B322162 (2d Dist., Div. 5 Dec. 13, 2024) (unpublished), plaintiff refused a CCP § 998 offer in a legal malpractice case, with defendant attorney winning.  The lower court did award attorney some expert witness fees based on the 998 offer, but it denied attorney’s request for fees based on a narrow retainer agreement clause.  Both sides appealed, but the results held up on appeal. 

               Both sides had problems because they had no reporter’s transcripts to show what occurred at the costs/fees hearings.  That alone justified a denial of respective appeals.

               But, even if the merits were considered, there was enough evidence of record to support the expert witness fee award.  With respect to the fee denial request by attorney, the retainer agreement was narrowly focused on fee collection issues, not professional malpractice claims, such that the fee denial was proper. 

Appealability, Family Law: Where Family Law Judge Expressly Reserved Findings On Fee Reasonableness For A Later Date, Pendente Lite Fee Order Appeal Dismissed

Appellant Can Be Free To Appeal When A Final Order Is Issued.

               In Marriage of O’Hill, Case No. G062146 (4^th Dist., Div. 3 Oct. 1, 2024) (unpublished), a family law judge expressly stated in his order that pendente lite fee orders were subject to reasonableness findings and further revisions at a later date.  The appellate court dismissed the appeal because even though a temporary support order in tandem with fee awards are generally appealable, the specific orders here were appealable in the future, with ex-husband simply needing to appeal in the future.

Appealability, Private Attorney General: Petitioners Obtaining Annulment Of TROs On Indoor Gatherings During COVID Not Entitled To CCP § 1021.5 Fee Recovery

$433,905 Was The Ask, But Nothing Awarded At Trial Level, Affirmed On Appeal.

               Financial incentives and avoidances are always at play in private attorney general fee requests.  Unfortunately, petitioners drew the short end of the stick at both the trial and appellate levels in Calvary Chapel San Jose v. Superior Court (6^th Dist. Sept. 30, 2024) (unpublished).

               People of the State of California obtained TROS against Chapel and its pastors to have them comply with COVID-19 health orders.  The People then commenced contempt proceedings against Chapel for violations of court orders, being granted contempt orders and monetary sanctions.  The Sixth District, in a prior opinion, annulled the orders and the sanctions, finding the indoor gatherings restrictions were unconstitutional after a SCOTUS decision that the lower court did not have the benefit of.  Chapel and one of the pastors brought an attorney’s fees motion under the private attorney general statute, seeking $433,905 in fees.  The lower court denied the request.

               The Sixth District affirmed.  It first had to face whether the order denying private attorney general fees is appealable because it occurred in the context of contempt proceedings, which are not appealable.  The appellate court decided to treat the appeal as a petition for writ of mandate for purposes of reaching the merits.  On the merits, the Court of Appeal found that Chapel’s self-interest in avoiding contempt findings and significant monetary sanctions was enough of a financial “positive side” to justify denial of the fee request, finding persuasive the reasoning in In re Head, 42 Cal.3d 223, 228 (1986).

Appealability, Arbitration, Employment, Preemption: $176,687.96 Fees And Sanctions Award For Employer’s Failure To Advance Fees Affirmed On Appeal

Employers Not Paying Fees Upfront Can Be Exposed To Further Arbitration Expenses Before the Axe Comes Down; Appellate Court Found No FAA Preemption, With This Preemption Issue Now Being Reviewed By The California Supreme Court.

               Although unpublished, Costa-Fleeson v. Americor Funding, Inc., Case No. G062962 (4^th Dist., Div. 3 Aug. 1, 2024) (unpublished) is a stark reminder to employers that failure to timely pay arbitration fees can result in the forfeiture of the ability to arbitrate as well as imposition of attorney’s fees and costs under Code of Civil Procedure sections 1281.98(c)(1) [covering “all attorney’s fees and costs associated with the abandoned arbitration proceeding”] and 1281.99 [with this latter statute providing for a mandatory monetary sanction to pay reasonable attorney’s fees and costs incurred by the employee as a result of the material breach of the arbitration agreement].  The appellate court affirmed five of six categories of fees and costs awarded to employee by the lower court as a result of employer’s failure to timely pay arbitration dues, with the employer likely not happy with the $176,687.96 adverse award.  In doing so, it found the lower court’s order was appealable as a monetary sanction under CCP § 904.1(a)(12).  The 4/3 DCA also found unpersuasive that the statutes were preempted by the Federal Arbitration Act.

               BLOG UPDATE—The FAA preemption issue was recently taken up for review, on June 12, 2024, by the California Supreme Court in Hohenshelt v. Superior Court (2d Dist., Div. 8 2/27/24), where the majority found no preemption and where dissenting Justice Wiley found the arbitration payment statutes were preempted.

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.

Appealability, Estoppel, Fee Clause Interpretation: Prevailing Party In Appellate Writ Proceeding Was Entitled To Small Routine Costs, But Not Attorney’s Fees

Appeal Costs Order Was Appealable, But There Was No Fee Entitlement Basis—Estoppel Argument Was Rejected.

            In Kaur v. Pabla, Case No. F086273 (5^th Dist. May 14, 2024) (unpublished), plaintiffs obtained an appellate writ mandate order and moved for appellate costs, both routine expenses and attorney’s fees.  In the end, the routine cost of $775 for the appellate filing fee was granted, but the request for attorney’s fees of $31,680 was denied by both the trial and appellate courts.

            The main problem for plaintiffs was that they could not show any fee entitlement basis.  They argued that prayer for fees by the other side created an estoppel, but the majority approach on this issue was against them, citing Blickman Turkus, 162 Cal.App.4^th at 898.   Because the defendants were not parties to the documents with fee clauses (some of which were forged or non-existent), there was no fee entitlement for purposes of allowing plaintiffs to recover fees.

            The interesting aspect of this case was on appealability.  The issue is whether an appellate costs order is appealable or only interlocutory in nature.  In a scholarly discussion noting a split in authority, the Fifth District sided with the majority view that the order was appealable. 

Appealability, SLAPP: Reversal Of Defendant’s SLAPP Motion Vacated Fee Award, But Plaintiff’s Motion For Sanctions Was Not Appealable

Everyone Gets To Keeping Litigating!

               In Sayarad v. Butler-Lopez, Case No. A166884 (1^st Dist., Div. 1 May 6, 2024) (unpublished), plaintiff suffered a partial grant of a SLAPP motion, resulting in an adverse attorney’s fees award as to one defendant of $42,031.50, and with the lower court denying plaintiff’s motion for sanctions based on the ground that defendant filed a frivolous SLAPP motion.  Plaintiff appealed.

               Good thing she did.  The appellate court reversed the defense SLAPP grant, which meant that the $42,031.50 fee award went POOF!  With respect to the motion for sanctions by plaintiff, that was not appealable and did not fall within the collateral order doctrine—it did not direct the payment or money or performance of an act.  Everyone got something, but the litigation goes on!

Appealability, SLAPP: Much Diminished Fee Recovery By Three Defendants Prevailing On SLAPP Motions Affirmed On Appeal

Plaintiff’s Appeal Of The Later Judgment Incorporating Fees Was Appealable, But Lower Court’s $62,500 Fee Award Was No Abuse Of Discretion.

               In Norman v. Ross, Case Nos. B316971 et al. (2d Dist., Div. 4 Apr. 23, 2024) (partially published; fee discussion not published), three defendants won a SLAPP motion on plaintiff’s claims, while two other defendants had their SLAPP motions denied in part on certain of plaintiff’s claims although the appellate reversed the SLAPP denial.  Defendants moved for SLAPP attorney’s fees, requesting $436,192.88 in total.  The lower court found that the case was not that novel, that plaintiff did drive up the litigation expenses in some regards, and that the defense took a “maximalist approach” to litigating the matter.  The trial judge awarded $125,000 in total to defendants, allowing them to apportion among themselves but entering a final judgment in favor of three defendants awarding them half or $62,500 in fees.  Plaintiff appealed, arguing the fee awards for the three defendants were still excessive.

               The 2/4 DCA, in an unpublished portion of the opinion, affirmed.  The panel had to confront the defendants’ argument that the appeal was premature because the fee order was just an interlocutory order not yet appealable.  The appellate court disagreed, finding that it had enough finality even though case law was in conflict (following the lead of the City of Colton, Baharian-Mehr, and Apex opinions over contrary reasoning in Doe v. Luster and cases aligned with Doe).  On the merits, however, the lower court did not abuse its discretion in the fees awarded to the three defendants because it did substantially discount the requests by the defense and there was no need to apportion because the lower court indicated that the defense was in the better position to apportion among the respective clients.  It also chided plaintiff’s counsel for bombastic appellate briefing on the fee issue, stressing the need for civility and professionalism.

Appealability: Plaintiff’s Challenges To Fee Award Were Forfeited Based On Inadequate Record Presentation And Failure To Raise Challenges At Trial Court Level

Two Fundamental Appellate Principles Supported Affirmance Of The Fee Award.

               Inadequate record and waiver arguments can really undermine an appellant’s arguments on appeal.  That is what happened in Milks v. Affirmed Technologies, LLC, Case No. B330311 (2d Dist., Div. 3 Apr. 8, 2024) (unpublished).  There, plaintiff challenged a contractual fee award after his case was dismissed following the sustaining of a demurrer without leave.  His arguments on appeal were rejected, because (1) appellant presented an inadequate record by failing to include the fee papers and the trial court’s order granting the fee motion, and (2) appellant waived new challenges made on appeal (mainly that he was not a signatory bound by the fees clause) given he only argued that the motion was untimely before the trial court. 

Appealability, SLAPP: Aggrieved Plaintiff Properly Prosecuted A Second Appeal From A SLAPP Fee Order Given Conflicting Intermediate Appellate Authority On The Issue

Opinion Validates Our Recommendation In Many Posts To Separately Appeal An Adverse Fee Order Or Appeal Both Rulings In A Combined Appeal If Possible.

               In Williams v. Doctors Med. Center of Modesto, Inc., Case Nos. F084700 et al. (5^th Dist. Mar. 27, 2024) (published), plaintiff separately appealed the granting of a SLAPP motion and a subsequent order granting fees to the successful defendants.  The defense argued that the second appeal was unnecessary because any fee award would automatically fall if the merits SLAPP ruling was reversed.  The Fifth District found nothing improper about the filing of the second appeal, something we bloggers have suggested in many prior posts.

               The appellate court observed that there was conflicting intermediate appellate authority on the treatment of dependent fee awards.  Some courts have held that they can reverse a fee award from an underlying judgment even if the fee award was not separately appealed.  (See, e.g., Ulkarim v. Westfield LLC, 227 Cal.App.4th 1266, 1282 (2014); Harris v. Wachovia Mortgage, FSB, 185 Cal.App.4th 1018, 1027 (2010).) Other courts held that they have authority to reverse a fee award only when the judgment and fee award are appealed together in a single appeal or appealed separately in two appeals. (E.g., Nellie Gail Ranch Owners Assn. v. McMullin, 4 Cal.App.5th 982, 1007–1008 (2016); Allen v. Smith, 94 Cal.App.4th 1270, 1284 (2002).)  Additionally, some courts have noted that “ ‘ “[w]hen a party wishes to challenge both a final judgment and a postjudgment costs/attorney fee order, the normal procedure is to file two separate appeals: one from the final judgment, and a second from the postjudmgent order.” ’ ” (Doe v. Westmont College, 60 Cal.App.5th 753, 762 (2021) [quoting Torres v. City of San Diego,154 Cal.App.4th 214, 222 (2007)].)

               Better safe than sorry—do a combined appeal of the two rulings or separately appeal the fee order if there is some delay in the fee ruling so as to make two appeals necessary.

Appealabilty, Costs: Only Adding Costs To A Judgment, Through An Amendment, Does Not Rest Time To Appeal From The Original Judgment

No Substantial Modification Was Obtained By Adding Costs To A Judgment.

            In Crokin v. Primrose, Case No. G061959 (4^th Dist., Div. 3 Jan. 3, 2024) (unpublished), authored by Presiding Justice O’Leary, the 4/3 DCA agreed that adding routine costs, attorney’s fees, and interest to an original judgment through an amended judgment did not reset the time to appeal from the original judgment because the changes were not substantial.  The costs award was separately appealable, such that it should have been separately appealed.  (Torres v. City of San Diego, 154 Cal.App.4^th 214, 222 (2007); Dakota Payphone, LLC v. Alcaraz, 192 Cal.App.4^th 493, 504-505 (2011).)

Appealability, SLAPP: Where SLAPP Cross-Defendant Did Not Eliminate All Cross-Claims And Received Less Than Requested SLAPP Fees, Fee Order Was Not Appealable

No Final Judgment Was Entered, And Collateral Order Doctrine Did Not Apply Because The Fee Order Did Not Order Payment Of Money By Partially Prevailing Cross-Defendant.

            Cross-defendant in Delis v. Thorn, Case No. F084879 (5^th Dist. Dec. 26, 2023) (unpublished) successfully SLAPP-ed 4 out of 5 cross-claims, moved for mandatory SLAPP fees, and was awarded only $15,500 out of the requested more than $85,000 in fees.  Cross-defendant appealed the fee order for not awarding more money to him.

            The Fifth District dismissed the appeal because it was premature.  CCP § 904.1 does not list a SLAPP fee award as immediately appealable.  There was no final judgment in the case because both parties have claims remaining to litigate.  The collateral order doctrine did not apply because cross-defendant was not ordered to pay any moneys; quite the opposite, cross-defendant obtained some fees such that he was not aggrieved with the scope of the doctrine.

            His appeal would have to await entry of a final judgment in the case unless a voluntary resolution occurs.

Appealability, Private Attorney General: Additional Defendants Were Determined To Be “Opposing Parties” Such That They Should Have Been Added As Liable For A Private Attorney General Fee Award

Additional Defendants Were Unified In Interest With Other Defendants Subject To The Fee Award.

            To recover attorney’s fees under the private attorney general statute, CCP § 1021.5, the plaintiff must recover against “opposing parties.”  Taft v. Salinas, Case No. D081025 (4^th Dist., Div. 1 Nov. 30, 2023) (unpublished) considered the scope of that language where all defendants seriously contested the case and were unified in interest, but the lower court denied fees against certain defendants because it did not consider them to be alter egos.

            Taft involved a case by a plaintiff against certain puppy stores and their owners for retail sales of non-rescue puppies which were alleged to come from breeding mills.  Plaintiff obtained a preliminary injunction, although plaintiff dismissed without prejudice after defendants moved to compel arbitration.  Plaintiff moved for attorney’s fees under Civil Code § 1717 and CCP § 1021.5, with the lower court awarding $46,500 under the private attorney general against the puppy stores but not against the owners.  Plaintiff appealed on the narrow ground that the omitted defendants should have been liable for the private attorney general fee award.

            Plaintiff won on appeal.  However, there was a jurisdictional issue to be resolved before the merits were reached.

            Defendants argued that the post-dismissal fee award was not appealable after the dismissal without prejudice.  The 4/1 DCA disagreed, finding such an award was no different from a post-dismissal routine costs award found appealable (and found persuasive by this panel through its reasoning) in Gassner v. Stasa, 30 Cal.App.5^th 346, 354-355 (2018).

            On the merits, the appellate court found that the omitted defendants were “opposing parties” responsible for the fee award under CCP § 1021.5 because they vigorously contested at all stages of the case and they were unified in interest with the defendants initially found liable for the fee award.

Appealability: Failure To Appeal Adverse Fee Order Fatal To Appellate Jurisdiction To Consider The Order.

As We Have Said Before, Always Separately Appeal A Postjudgment Fee Order.

            Drooyan v. Action Property Mgt. Co., Inc., Case No. B314211 (2d Dist., Div. 8 Nov. 30, 2023) (unpublished) is yet another case indicating what numerous posts have shown in appellate decisions since we began doing this blog in May 2008: to be safe, always separately appeal a postjudgment fees order.

            Here, plaintiff lost a case against an HOA and others for claims arising under the Davis-Stirling and Rosenthal Acts, with the lower court denying any fees under the Rosenthal Act but awarding the defense around $15,000 in fees under the Davis-Stirling Act (despite a $47,000 ask from the defense).  The appeal from the fee order could not be considered because plaintiff never separately appealed from that order. 

Appealability, SLAPP: Where Cross-Defendant’s SLAPP Motion Was Denied, Inclusive Of A Fees Request, Even Though Cross-Complainant Dismissed Its Complaint Before The Ruling Was Final, Cross-Defendant’s Appeal Of The Merits And Fees Denial Were Proper

It Did Not Matter, Because SLAPP Denial Was Affirmed On Appeal.

            Freeman v. LMA & SAI 1433 Wilshire LLC, Case No. B325212 (2d Dist., Div. 7 Nov. 9, 2023) (unpublished) goes to show you that you may hurdle procedural appealability obstacles, only to have the merits affirmed anyway.

            In this one, the procedural history was somewhat convoluted.  Cross-defendant filed a SLAPP motion against the cross-complaint, with the lower court denying the motion and further finding that he was not the prevailing party to obtain SLAPP mandatory attorney’s fees.  On the same day as this order, cross-complainant dismissed its cross-complaint without prejudice.  Cross-defendant appealed the SLAPP merits adverse ruling as well as the fee order denial.

            The 2/7 DCA ultimately affirmed the merits of the SLAPP denial.  But, first, the panel had to decide if the appeal was moot based on the cross-complaint dismissal.  It was not, according to the Court of Appeal, under the unusual circumstances of the matter.  What was determinative in this one was that the lower court denied the fee request such that a future fees motion would have been futile.  Given that the dismissal did not deprive the lower court of jurisdiction to determine if he was the prevailing party, the lower court’s actual denial of the merits and fee request properly presented a proper appeal for both issues.  The sui generis facts, we believe, led to this result, which the DCA expressly acknowledged.

Appealability, Sanctions: 4/1 DCA Holds In Unpublished Opinion That Interlocutory Order Denying CCP § 128.7 Sanctions Is Not Appealable

It Is Appealable From A Final Judgment, Although There Is A Split In DCA Thinking On The Issue.

            In Arteaga v. California Restaurants, Inc., Case No. D082258 (4^th Dist., Div. 1 Oct. 17, 2023) (unpublished), plaintiff filed a CCP § 128.7 sanctions motion which was denied in a class action case, prompting an appeal.  The 4/1 DCA dismissed the appeal, following the lead of Longobardo v. Avco Corp., 93 Cal.App.5^th 429, 434 (2023) by concluding that an interlocutory order not directing the payment of money or performance of an act is not appealable under the collateral order doctrine.  Rather, it is appealable from a subsequent final judgment.  The appellate court did observe that Muller v. Fresno Community Hospital & Medical Center, 172 Cal.App.4^th 887, 905 (2009) held otherwise under peculiar facts, but agreed with Longobardo’s analysis of state supreme court precedent in this area.  Here, the parties reached a settlement, and the lower court issued a final judgment, with plaintiff eschewing to appeal from the final judgment.

Appealability, Family Law: Denial Of Fees To Ex-Wife Under Family Code Section 3121 Was No Abuse Of Discretion Because The Matters Before The Trial Judge Were Unrelated To Child Custody Issues

However, Ex-Wife’s Appeal From The Final Judgment Was Timely Because the Interim Order Denying Fees Was Not A Separately Appealable Order.

            The main lesson from Marriage of Davis, Case No. D080980 (4^th Dist., Div. 1 Sept. 18, 2023) (unpublished) is a simple one:  if you are seeking fees, make sure you have a fee entitlement basis which is tethered to the matter before the lower court; otherwise, you lose, as happened in the opinion upon which we now post.

            In a dissolution hearing, ex-wife orally requested her attorney’s fees to obtain counsel in a proceeding under Family Code section 3121, which allows need-based fees akin to those allowable under sections 2030/2032 where an action involves exclusive custody of children from the marriage.  The court denied the motion, prompting an appeal.

            The first issue was appealability.  Given that this matter involved the denial of a fee request, the appellate court agreed that the interim denial did not have to appealed until notice of a final judgment, with ex-wife timely appealing from that.  It did note a rift in appellate thinking, but followed the majority view that an appealable collateral order must direct the payment or money, not a denial of money.  (Eisenberg et al., Cal. Practice Guide:  Civil Appeals and Writs (The Rutter Group 2022) § 2.78, also discussing the minority view in Muller v. Fresno Community Hospital & Medical Center, 172 Cal.App.4^th 887, 901-902 (2009).)

            On the merits, the record showed that the hearing matter before the lower court involved requests for a domestic violence restraining orders (DVROs) and a residence request, not a child custody controversy.  It was not enough that the dispute was part of the overall dissolution case, but it had to be targeted at an exclusive child custody dispute.  (Compare with C.T. v. K.W., 71 Cal.App.5^th 679, 681-685 (2021), where the DVRO petition included a request for child custody and visitation orders justifying a fee grant under analogous fee provision under the Uniform Parentage Act).

Appealability, Deadlines: Appeal Of Later Amended Judgment Including Fees And Costs Was Untimely With Respect To A Review Of The Merits Decision Reflected In the Original Judgment

The Later Amended Judgment Was No Substantial Modification To The Original Judgment.

            The next opinion, San Diego Innovation Center, LLC v. Skyriver Communications, Inc., Case No D080972 (4^th Dist., Div. 1 Aug. 25, 2023) (unpublished), supports a suggestion we have made in numerous past posts:  appeal an original judgment and amended judgments to make sure both merits and post-trial judgment issues can be reviewed.

            Appellant failed to timely appeal from an adverse, original judgment in which landlord recovered $486,489.55 damages in a breach of lease suit after appellant vacated early in the COVID-19 pandemic.  Later, landlord also obtained $1,479 in routine costs and $62,821 in contractual attorney’s fees, which was reflected in an amended judgment appealed from by appellant.

            Appellant’s challenges on appeal were to merits rulings under the original judgment; given that procedural posture, the appellate court dismissed the appeal.  The failure to timely appeal the original judgment was fatal, with the amended judgment adding costs and fees not constituting a substantial modification of the judgment to dictate otherwise.  (Torres v. City of San Diego, 154 Cal.App.4^th 214, 221-223 (2007).)

Appealability, Discovery: Monetary Sanctions, Not Intertwined With Nonappealable Issue Sanctions Order, Can Be Entertained On Appeal

$37,575 Monetary Sanctions Against Defendants For Discovery Noncompliance Affirmed, Given Defense Conduct.

            Bad facts can lead to published decisions which are not complementary to a party not conducting itself appropriately in litigation.  Defendants in Deck v. Developers Investment Co., Case No. G061287 (4^th Dist., Div. 3 Mar. 24, 2023) (published) learned that sad reality.

            Defendants were hit with potentially dispositive issue sanctions (although the case went on) and $37,575 in discovery noncompliance sanctions for repeated discovery conduct, including dumping a document discovery response on the eve of a motion cut-off and discovery hearing.  The issue which we believe led to publication is whether the monetary sanction was appealable given that the issue sanctions may not have been.  The appellate court examined decisions and clarified that a monetary sanction not intertwined with an issues sanction is independently entertainable on appeal, even though the issues sanctions is not.  On the merits, the monetary sanctions were affirmed based on a record which to say the least was not flattering for defendants. 

Appealability, Discovery: Discovery Sanctions Against Client’s Attorney For Client’s Failure To Appear At A Deposition Reversed

Nothing In The Statute Shows That Sanctions Are Allowable Against Client’s Attorney.

            Castillo v. McCreary, Case No. B317493 (2d Dist., Div. 3 Feb. 21, 2023) (unpublished) is an interesting unpublished decision on an appealability issue and on whether discovery sanctions can be visited on a client’s attorney for his client’s failure to appear for a deposition, with a lower court imposing sanctions against client’s attorney. 

            On the appealability issue, the technical issue was whether a clerk’s certificate of mailing, which was file-endorsed but attaching a minute order which was not, constituted a minute order which was appealable under the more restrictive 60-day appeal limitation.  The appellate court, although sympathetic that an order like this might qualify, applied Alan v. American Honda Motor Co., Inc., 40 Cal.4^th 894, 905 (2007) conservatively so that the appeal could go forward.

            With that said, attorney won on the merits, because de novo review was required vis-a-vis the germane Discovery Act statute.  Nothing in Code of Civil Procedure section 2025.450(g)(1) authorized monetary sanctions against client’s attorney for his client’s failure to appear at the deposition.  So, the sanctions award against the attorney was reversed.

Appealability, Deadlines: Plaintiff’s Appeal Of An Attorney’s Fee Grant Motion Was Untimely, Resulting In A $64,350.30 Fees Order Standing As Viable Without Any Review

Appeal Was Electronically Received By The Court One Minute Late, Which Made It Untimely—So, Allow For Some Electronic Delay Transmission Issues When Filing An Appeal.

            Although unpublished, the lesson from McKenna v. Sony Pictures Entertainment, Case Nos. B304256/B310814 (2d Dist., Div. 5 Feb. 15, 2023) (unpublished) is to not push the 11:59 p.m. electronic filing deadline for superior court documents, especially with respect to a notice of appeal.  If the document is not received until 12:00 a.m. the next day, it could well be found to be untimely by a day.

            Plaintiff lost an attorney’s fees motion to the tune of $64,350.50 (inclusive of $9,427.50 for “fees on fees”) because the lower court determined defendant prevailed on a SLAPP motion as well as under Civil Code section 3344.1 (fee-shifting provision in a deceased personality name/likeness case involving deceased actor Christopher Jones).  Defendants served a notice of entry, which triggered a 60-day deadline from which to appeal the fee order.  Plaintiff encountered some electronic filing delays such that the appeal was file stamped at 12:00 a.m., one minute after the deadline such that the appeal was late by one day.  (Plaintiff visited Nationwide Legal at 11:42 p.m., but the electronic transmission issue did not get the document to the court—received by it--until 12:00 a.m., although the deadline for timely filing was 11:59 p.m. the day before, all in line with CRC 8.77.)

            The appellate court dismissed the appeal as untimely.  It did not believe that a slow connection was a failure in the electronic transmission for purposes of allowing for leniency under CRC 8.77(d).  The CRC deadline language talks about receiving the document by 11:59 p.m., not submitting by that time.  Beyond that, the notice of appeal was insufficient in failing to specify the order or judgment from which plaintiff was appealing. 

            Good electronic transmission lessons are taught in this opinion:  upshot, do not crowd electronic filing of a notice of appeal and check the right boxes in the Judicial Council form or specify the orders/judgments being appealed in a specially-crafted notice of appeal.

Appealability, Civil Rights: Disabled Plaintiff Suing Defendant For Website Violations Under The Unruh Act Was Properly Assessed With Defense Attorney’s Fees Of $45,419.50 After Voluntarily Dismissing His Action

Plaintiff’s Injunctive Relief Allegations Triggered Civil Code Section 55, Which Allowed Fees To The Defense—Allegations Matter In These Cases.

            Sandoval v. Nippon Life Ins. Co. of America, Case No. E077245 (4^th Dist., Div. 2 Dec. 12, 2022) (unpublished) is an interesting disabled person website case which was voluntarily dismissed without prejudice after some discovery.  Plaintiff had alleged violations under the Unruh Act (although mentioning the ADA, which is incorporated into the Unruh Act), although he did not specifically plead a claim under the Disabled Persons Act (DPA).  Plaintiff voluntarily dismissed his Complaint without prejudice, and the lower court granted defendant $45,419.50 in attorney’s fees under Civil Code section 55.  Plaintiff appealed.

            But first, the panel had to face a jurisdictional issue.  Defendant argued that the fee order was not appealable because it was a costs award following on the heels of a non-appealable voluntary dismissal.  The appellate court found that the fee order was the equivalent of a costs award and, even though there was a split of opinion on the issue, it was appealable.  (Gassner v. Stasa, 30 Cal.App.5^th 346, 355 (2018).)

            On the merits, plaintiff argued there was no fee exposure because (a) under the ADA, a prevailing defendant can recover fees only if the ADA claim is found frivolous, something not found here (true—Jankey v. Lee, 55 Cal.4^th 1038, 1048 (2012)); and (b) under the Unruh Act, only a prevailing plaintiff can recover fees (true—Molski v. Arcero Wine Group, 164 Cal.App.4^th 786, 791 (2008)).   Although the DPA has a bilateral fee provision (Civ. Code, § 55), plaintiff argued there was no fee exposure because he did not plead a DPA claim.  The appellate court agreed with all of these conclusions, but it found that a broad prayer for injunctive relief under Plaintiff’s Complaint for potentially aggrieved persons triggered section 55 fee exposure because that injunctive relief is cumulative to injunctive relief under the Unruh Act and DPA.  So, section 55 fee exposure was triggered—with the moral being for plaintiffs in these type of cases, be careful of how you plead website cases if you want to avoid fee exposure.

Appealability, Family Law: Failure To Independently Appeal Family Code Section 271 Sanctions Motion Meant The Merits Could Not Be Reviewed

$25,000 Sanctions Order Was Not Subject To Review.

            In Marriage of Freeman, Case No. B311411 (2d Dist., Div. 6 Dec. 6, 2022) (unpublished; opinion after rehearing), ex-wife was peeved she was assessed with Family Code section 2071 sanctions to the tune of $25,000.  However, her challenges could not be entertained because she did not appeal from the postjudgment sanctions order. 

Appealability, SLAPP: 4/3 DCA Decides That Immediate Appeal Of SLAPP Fee Award Is Not Cognizable

Appellate Court Sides With One Side In “Irreconcilable Conclusions” On The Appealability Issue.

                 In Ibbetson v. Grant, Case No. G060473 (4^th Dist., Div. 3 Nov. 30, 2022) (unpublished), the appellate court was faced with the question of whether an anti-SLAPP fee award was immediately appealable after a prior SLAPP order grant or whether it had to await a final judgment down the way.

                 The 4/3 DCA panel, in an unpublished opinion authored by Acting Presiding Justice Bedsworth, dismissed the appeal. 

                 It determined that there were two “irreconcilable” approaches on the appealability issue.  The first was embodied in Doe v. Luster, 145 Cal.App.4^th 139, 144-148 (2006) and Baharian-Mehr v. Smith, 189 Cal.App.4^th 265, 275 (2010), which both held that a separate SLAPP fee award is not immediately appealable unless it is part of the SLAPP motion (where the fees are awarded at the same time as the SLAPP grant).  The second approach was represented in City of Colton v. Singletary, 206 Cal.App.4^th 751, 781-782 (2012), which held that the SLAPP fee award was separately appealable under the collateral order exception to the one final judgment rule.  However, the Ibbetson panel decided that the Doe/Baharian-Mehr cases provided “the sounder approach,” especially given what the Legislature did in making SLAPP grants/denial immediately appealable but not including fee awards within that ambit.  That led to a dismissal of the appeal; although, as we read the opinion, the adverse party can raise a challenge to it from any final judgment entered in the future.

                 BLOG OBSERVATION—This case might be seen as one which should have been published.  However, given that the adverse party can appeal the issue from the final judgment, we will indicate that Justice Bedsworth rarely grants civil opinion publication requests.  He believes there is too much law on the books already, so why add more unless there is something really special dictating a different conclusion.

Appealability, Sanctions: $2,000 Sanctions Order Against Attorney For Filing A Second Amended Cross-Claims With New Claims Is Affirmed On Appeal

Prior Dismissal Of A Premature Appeal Did Not Retard Consideration Of This Appeal, Plus Be Careful To Observe Memorandum Page Limits!

            Bush v. Cardinale, Case No. A158757 (1^st Dist., Div. 4 Sept. 27, 2022; posted on Sept. 28, 2022) (unpublished) involved an appeal of a $2,000 CCP § 128.7 sanctions order against an attorney for filing a second amended cross-complaint in derogation of a prior lower court order requiring a motion for leave if new claims were added, as they were.  The Court of Appeal affirmed the sanctions order.

            Initially, it had to resolve a thorny appealability issue.  A prior appeal of the order was dismissed (not indicating without prejudice) because it was premature.  Normally, that dismissal would have been considered “with prejudice” if there is no indication otherwise, but there is an exception that allows an appellate court to consider a second appeal even though a prior appeal was dismissed as premature, the case here.  The appeal could be considered on the merits.

            However, there was no basis to overturn the sanctions award on the merits.  But there is cautionary tale in this one.  The sanctions opposition motion was 17 pages long which, under CRC 3.1113, can be considered a late-filed brief subject to being disregarded.  (CRC 3.113(d), (g).)  The trial court did not consider the excessive brief, and that decision was affirmed—so, litigators, be warned!

Appealability, Discovery: Plaintiff “Internet Troll” In California Discovery Litigation, Whose Motion To Quash Was Dismissed, Was Not Entitled To Attorney Fees Under CCP § 1987.2(c)

Appellate Court Also Rebukes Parties And Attorneys Whose Main Quest Is To Recoup Fees After A Defeat.

            Here is how Doe v. McLaughlin, Case No. A161534 (1^st Dist., Div. 2 Sept. 21, 2022) (published) began:

            “Forty-four years ago our Supreme Court admonished that ‘The purpose of litigation is to resolve participants’ disputes, not compensate participating attorneys. Our courts are sufficiently burdened without combat kept alive solely for attorney fees.’ (International Industries, Inc. v. Olen (1978) 21 Cal.3d 218, 224.) We reiterated the admonition in 2006 (Abouab v. City and County of San Francisco (2006) 141 Cal.App.4th 643, 675), an admonition that is as true today—if not truer—than it was in 1978.”

            This involved plaintiff, an admitted “Internet troll,” who became embroiled in a California discovery proceeding hinged to an Illinois case, seeking to quash a subpoena after plaintiff posted a mugshot of defendant despite the fact defendant’s criminal case records in Illinois were expunged and defendant/his ex-girlfriend settled Illinois litigation between themselves.   The California judge dismissed the motion to quash, primarily because defendant and his ex-girlfriend had settled their dispute.  CCP § 1987.2(c) allows for fee recovery if the moving party prevails, actions were based on the exercise of speech rights on the Internet, and the responding party fails to make a prima face showing of a cause of action, with the statute being akin to the anti-SLAPP statute.  Plaintiff had sought over $34,000 in fees.

            The 1/2 DCA affirmed, finding that plaintiff’s appellate attorney should have known the quest for fees was unwarranted based on the state of the record. 

            Although discovery orders are generally nonappealable, this one was because the entire purpose of the California proceeding was to resolve the discovery battle.  (H.B. Fuller Co. v. Doe, 151 Cal.App.4^th 879, 883-884 (2007).)

            However, the lower court correctly denied the motion to quash.  Plaintiff did not prevail under either of the two approaches described in Roe v. Halbig, 29 Cal.App.5^th 236, 305-306 (2018), given that defendant settled the Illinois action with ex-girlfriend.  Beyond that, plaintiff’s conduct was targeted harassment which is a free speech rights exception, not to mention that defendant did present a prima facie case.  

            ETHICS FOOTNOTE—The appellate court, in a footnote, reminded appellant’s counsel that he had an obligation to point out that a case had been disapproved and point out contrary authority to judges or justices.

Appealability, SLAPP: Even Through Cross-Claims Were Dismissed During Pendency Of An Appeal, SLAPP Denial Appeal Was Not Moot

The Reason Is That Attorney’s Fees Were In Play If The SLAPP Denial Was Reversed, As It Was.

            Watkins v. D’Orio, Case No. B310902 (2d Dist., Div. 2 Sept. 14, 2022) (unpublished) involved a situation where cross-defendant appealed the denial of an anti-SLAPP as to certain cross-claims and, during the pendency of the appeal, cross-complainant voluntarily dismissed the cross-complaint.  Cross-complainant argued that this dismissal mooted the appeal, but the appellate court disagreed.  Guess why?  If you said that a successful appeal would not be moot because cross-defendant could move for mandatory attorney’s fees if a reversal occurred, then you answered correctly.   Well, that is what happened—the SLAPP denial was reversed with instructions to reinstate the cross-complaint, grant the SLAPP motion, and strike the cross-complaint.  Cross-defendant was awarded appellate costs and will have a chance to move for fees before the lower court in the future.

Appealability, Special Fee Shifting Statute: Despite No Real Opposition To Civil Harassment Restraining Order Fee Motion, Reversal Of Damages Award Means Fee Award Had To Be Revisited

Appellate Court Agreed That No Opposition To Fees Would Normally Be Dispositive, But Reversal In Eliminating Damages Changed The Landscape.

            Hao v. Wang, Case o. B306737 (2d Dist., Div. 8 Aug. 12, 2022) (unpublished) is an interesting case in showing how even a litigant not opposing a fees motion may still get a remand where there is a significant merits reversal.  However, there was a threshold appealability issue which we also discuss.

            What happened here is that a tenant obtained issuance of a civil harassment restraining order, including an award of special damages and damages for pain and suffering against landlord.  More pain was imposed with an attorney-fee shifting award under the harassment statute because there was no opposition by landlord.  The fee award was reversed because damages were not recoverable under the harassment scheme. 

            The appealability issue was resolved against landlord because tenant’s appeal of an order awarding fees but not fixing the amount means that the first order encompasses the subsequent order fixing the amount.  (Golightly v. Molina, 229 Cal.App.4^th 1501, 1520-1521 (2014).)  [BLOG NOTE—We do not opine often on the correctness of the award, but a subsequent order fixing fees should also be appealed as we have blogged on many times under our category “APPEALABILITY,” just to avoid on a jurisdictional appellate challenge.]

            Despite landlord not contesting the fee motion, the forfeiture was not dispositive because the damages elimination reversal required a “revisit” of the fee award, given this was a legal issue which could be considered de novo.

Appealability, SLAPP: 2/7 DCA Affirms Its Conclusion In Earlier Published Opinion That Denial Of SLAPP Fees To Plaintiff After A Defense SLAPP Denial Is Not Immediately Appealable

In Doing So, It Disagreed With Different Conclusions By Two Sister Appellate Courts.

            Kaplan v. Davidson, Case No. B312826 (2d Dist., Div. 7 July 11, 2022) (unpublished) highlights a rift between this Division and other sister appellate courts on the question of whether denial of attorney’s fees to a plaintiff after a merits denial of a SLAPP motion is appealable.  The 2/7 DCA, in the earlier decision of Doe v. Luster, 145 Cal.App.4^th 139, 142 (2006), concluded it was not immediately appealable.  Later, other appellate courts came to a completely different conclusion.  (Baharian-Mehr v. Smith, 189 Cal.App.4^th 265, 275 (2010); Chitsazzeh v. Kramer & Koslow, 199 Cal.App.4^th 676, 680 n. 2 (2011).)  Now, after considering the issue yet again, the Kaplan panel confirmed that Doe was correct and did not endorse the other sister court decisions, finding that the Legislature did not indicate such a denial order was immediately appealable under Code of Civil Procedure sections 425.16 or 904.1.  It did not rule out that an extraordinary writ of mandate petition might be proper under the right circumstances.

Appealability, Class Actions: Ninth Circuit Decides It Has Pendent Appellate Jurisdiction To Review A Non-appealable Interim Fee Award Inextricably Intertwined With The Merits Of The Appealable Orders

Judicial Economy Seemed To Be The “Flavor” Here.

            In Bowerman v. Field Asset Services, Inc., Nos. 18-16303/18-17275 (9^th Cir. July 5, 2022) (published), a “first impression,” narrow appellate pendent jurisdictional issue was under consideration by the Ninth Circuit.  (Appellate practitioners might salivate, others not so much—but we post on it nevertheless.)  However, we can report that the Ninth Circuit lined up consistently with sister circuit courts on the issue.

            This was a situation where a district judge entered an interim $5 million fee award for the class after a class certification order and partial summary judgment orders in favor of the class, most of which were appealable.  Defendants appealed the non-fee appealable orders and the interim fee order.  Many of the appealable orders were reversed on appeal.

            So, could the Ninth Circuit also entertain the defense appeal of the interim fee order, which might be deemed non-appealable?  Answer:  You betcha.  Because the fee order was inextricably intertwined with other appealable district court orders, it only made sense that the Ninth Circuit could exercise pendent appellate jurisdiction in connection with the fee award.  The Ninth Circuit sided with other sister circuit courts coming to the same result.  Once this legal issue was decided, the federal Court of Appeals vacated the fee award to await what happens on later in the case in further proceedings—a result driven by judicial economy, we think.

Appealability, Deadlines: Co-Defendant’s Failure To Appeal Judgment Or Fee Denial Order Was Fatal To Appellate Consideration Of The Fee Denial Challenge

Co-Defendant Could Not “Hitch” Onto Appeals By Other Defendants.

            In Greenfield LLC v. Kandeel, Case No. B297194 (2d Dist., Div. 5 June 14, 2022) (unpublished), a co-defendant was denied attorney’s fees and argued that denial was incorrect in an appellate case filed by other defendants.  The appellate court held it had no jurisdiction to consider co-defendant’s challenge because co-defendant did not appeal either the judgment or the fee denial order.  That party could not take advantage of appeal notices by other defendants in the overall appellate case. 

Appealability, POOF!: Where Party Appealed A Judgment Which Was Later Amended To Allow One Side Fees And Costs, The Judgment Could Not Be Amended While The Appeal Was Pending

A $119,010 Fee Award Under An Amended Judgment Went POOF!

            Just to show you how the sequence of events can play a big part on appeal, we explain what happened in Kling v. Horn, Case No. B310164 (2d Dist., Div. 7 June 8, 2022) (unpublished).

            An original judgment in a matter stated that each side was to bear its own fees and costs.  Defendant filed a motion to amend the judgment to remove that provision in preparation for filing a motion for attorney’s fees.  Before any rulings on these motions, plaintiff filed a notice of appeal from the judgment.  The lower court eventually did amend the judgment to delete the “bear own fees/costs” language and issued an award of attorney’s fees in favor of defendant and against plaintiff/plaintiff entities to the tune of $119,010.  (In a prior appeal, the panel decided that the appeal stayed any attempt to add plaintiff entities as judgment debtors under CCP § 187.)

            The 2/7 DCA reversed.  It determined that the appeal of the original judgment did stay the attempts to amend the judgment such that the subsequent fees order was not collateral to the original judgment.  Although there are some exceptions, defendant failed to show any of them applied. 

Appealability, Deadlines: County’s Failure To Appeal A Clerk-Served File Stamped Copy Of A Fee Order Within 60 Days Meant The Appeal Was Untimely

Decisions Show That Notice Of Entry Document Service Or File Stamped Order Service Will Trigger The 60 Days Appeal Deadline Time Period For Civil Unlimited Cases.

            This next case is a deadline warning for practitioners whose clients want to appeal a fee ruling, even one where the client is claiming the fees were not high enough.

            The appellant’s appeal of a case claiming a fee award was insufficient in amount was dismissed in County of Napa v. Wesner, Case No. A162794 (1^st Dist., Div. 1 June 8, 2022) (unpublished).  The reason was that the superior court clerk served a “file stamped” copy of the fee award on County (with no language indicating that anything else needed to be done such as preparation of a proposed order), with County not filing an appeal within 60 days after the order was served.  County argued that a “Notice of Entry” document had to be served relating to the order, but the appellate court rejected that argument because:  either a “Notice of Entry” document needs to be served or a file-stamped copy of an appealable order not bearing the “notice of entry” language.  (Russell v. Foglio, 160 Cal.App.4^th 653, 659-660 (2008).)  Further confusion did occur in this case because the trial court did allow the County to submit a further proposed judgment on the fee award, even though the file-stamped minute order contemplated no further action.  The appellate court determined that this new proposed judgment did not restart the deadline periods because the file-stamped order which was served triggered the 60-day period.  (Laraway v. Pasadena Unified School Dist., 98 Cal.App.4^th 579, 583 (2002).)  Appeal of the fee award dismissed on the jurisdictional ground of not timely appealing.

Allocation, Appealability, Partition: $790,967 Postjudgment Fees And Environmental Remediation Award Against Some Partitioning Parties Affirmed On Appeal

Lower Court Retains Lots Of Discretion To Apportion Fees in Partition Action.

            DeMartini v. DeMartini, Case No. A160849 (1^st Dist., Div. 1 June 7, 2022) (unpublished) is a reminder that the partition statutes allow a trial judge broad authority to award and apportion fees to parties in a partition action.  In this one, the lower court did award fees and environmental remediation costs totaling $790,967 against some parties in a partition action.  That stood up on appeal.  As to the threshold appealability issue, merits partition adjudications and post-award fee recovery orders are appealable.   On the merits, the trial judge has great discretion to apportion fees under CCP §§ 874.040 and 874.110(a), such that the fee recovery award was no abuse of discretion.

Appealability, POOF!: Reversal Of Merits Judgment For $390,184 In Damages Also Meant That A $365,065 Prevailing Parties’ Fees Award Went POOF!

No Separate Appeal Of The Fees Award Was Necessary To Extinguish The Fees Award—Although Prudent Appellate Practitioners Usually Appeal Separately To Be Cautious.

            In Medical Benefits Administration, Inc. v. Nivano Physicians, Case No. C093214 (3d Dist. Apr. 1, 2022) (unpublished), prevailing parties were awarded $365,065 in attorney’s fees after winning $390,184 in damages.   However, defendant in a prior appeal turned the merits judgment totally around, with the appellate court determining that agreements underlying that judgment were illegal and unenforceable.  So, given that prior result, the fees award went POOF!  also.  The Third District reminded appellate practitioners that it is not necessary to appeal the postjudgment fee award to get the fee award to go POOF! (Center for Biological Diversity v. County of San Bernardino, 188 Cal.App.4^th 603, 613 n. 4 (2010)), but many appellate practitioners separately appeal the award just to be safe.

Appealability, Arbitration: Trial Court’s Denial Of Motion For Costs And Attorney’s Fees Incurred In Opposing And Conducting Arbitration Proceedings Denied As Interlocutory Because Merits Of Action Was Not Yet Decided

Lots Of Arguments Raised, But Merits Had To Be Decided To Determine Who Prevailed.

            What occurred in Harris v. University Village Thousand Oaks CCRC LLC, Case No. B311972 (2d Dist., Div. 6 Mar. 21, 2022) (unpublished) is that a lower court’s confirmation of an arbitration award was reversed because the appellate court determined that the arbitration clauses were void.  Plaintiffs, thinking they prevailed, sought costs on appeal and in the arbitration, as well as attorney’s fees in the prior appeal and the arbitration.  The lower court denied the substantial fee and costs requests relating to appellate and arbitration expenses, without prejudice to renewing upon a merits-based adjudication in the lawsuit.

            The 2/6 DCA affirmed.  The fundamental reason for sustaining the lower court’s order was that the fees/costs denials were interlocutory because the merits of the underlying case had not been finally determined; this meant the orders were not appealable until future events occurred to establish a prevailing party.  However, for purists and appellate attorneys, this is nice reading on these issues: (1) split in thinking on when an appellate court ruling on costs is an independent judgment for appeal purposes—discussing Rostack Investments, Inc. v. Sabella, 32 Cal.App.5^th 70, 79, which talks about Barnes versus Krikorian; and (2) split in thinking on whether a trial court order granting attorney’s fees on appeal was appealable under the collateral order doctrine—discussing Apex LLC v. Korusfood.com, 222 Cal.App.4^th 1010, 1015 n. 1 (2013), which talks about Barnes and Krikorian split on the issue—but it did not have to get into the weeds because it was dealing with a fee denial, not an order to pay fees.