CALIFORNIA ATTORNEY'S FEES

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  Taft v. Salinas, Case No. D081025 (4^th Dist., Div. 1 Nov. 30, 2023) (unpublished) considered the scope of that language where all defendants seriously contested the case and were unified in interest, but the lower court denied fees against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. 

Appealability: Attorney’s Fees Denial Order Was Nonappealable Because No Judgment Of Dismissal Had Been Filed

Collateral Order Doctrine Did Not Save The Day, Either.

            The 2/7 DCA, in Sanchez v. Westlake Services, LLC, Case No. B308435 (2d Dist., Div. 7 Jan. 18, 2022) (published), is a situation where a lower court denied a motion for attorney’s fees (but granted costs and prejudgment interest) after plaintiff reached a settlement but before a dismissal of the lawsuit was filed or before there was a request for entry of judgment.  Plaintiff appealed the fee denial, but the appeal was the dismissed.  The reason was that the fee denial occurred before plaintiff filed a lawsuit dismiss, which means the appeal was not from a postjudgment order.  The collateral order doctrine did not save the day, because a fee denial was at issue rather than on order requiring payment of money. 

Appealability, Costs, Deadlines: $10,800 Costs Recovery To Certain Defendants After Plaintiff Dismissed Case Without Prejudice And Refiled In Texas Was Not Erroneous

4/3 DCA Sides With The View That A Costs Award Entered After A Voluntary, Without Prejudice Dismissal Is Appealable.

            In Thomas v. St. Joseph Health System, Case No. G059408 (4^th Dist., Div. 3 Oct. 20, 2021) (unpublished), plaintiff doctor sued certain health care defendants in Orange County Superior Court for interference/unfair competition.  Certain defendants gained a tentative ruling by which a motion to quash based on lack of personal jurisdiction was going to be set for a final hearing, based on the notion that the case belonged in Texas.  (The lower court had allowed plaintiff to take jurisdictional-directed depositions in both California and Texas in order to oppose the motions to quash.)  Before that hearing could be held, plaintiff filed a voluntary, without prejudice dismissal and later refiled the case in Texas.  Defendants filed a costs memorandum, with the trial judge awarding $10,800 to defendants and denying a motion to strike/tax costs.  Plaintiff appealed.  The costs order was affirmed, in a 3-0 opinion authored by Orange County Superior Court Judge Linda Marks, sitting by assignment.

            In a footnote, the 4/3 DCA panel observed that there is a split in authority on whether a costs order entered after a voluntary dismissal without prejudice is an appealable order.  (Compare Gassner v. Stasa, 30 Cal.App.5^th 346, 351-355 (2018) [is] with Monn Chong Loong Trading Corp. v. Superior Court, 218 Cal.App.4^th 87, 92 (2013) [isn’t, but can be treated as a discretionary petition for writ of mandate].)  The panel sided with Gassner, but also indicated it would have reviewed it under the mandate petition alternative.

            Plaintiff argued that defendants filed the costs memorandum 9 days too late based on the 15-day deadline, but that failed because no notice of entry of dismissal was served such that the longer 180-day rule applied.

            Next, plaintiff contended that the pendency of the case in Texas meant that there was no prevailing party for costs purposes.  Not so, said the appellate court.  CCP § 1032(a)(4) allows costs to “a defendant in whose favor a dismissal is entered,” with a dictionary definition of “in favor of” supporting the position that defendants had prevailed notwithstanding the pendency of the Texas action.  (The analysis likely would have been different if attorney’s fees were involved, but the result was different for costs.)

            Plaintiff then suggested that defendant needed to file the customary Costs Worksheet, but the appellate court observed that the only initial required pleading is the costs memorandum itself (CRC, rule 3.1700(a)(1)), although it is a good idea to file the Worksheet.

            The amount of costs, mainly for in-state and Texas travel deposition expenses by counsel, were reasonable, with the fact that plaintiff’s counsel’s travel costs were $450 less not altering the result—costs do not have to be the lowest possible for purposes of reasonableness.  (Landwatch San Luis Obispo County v. Cambria Community Services Dist., 25 Cal.App.5^th 638, 646 (2018).)

Appealability: Appellate Court Has Nice Discussion On Why Most Orders Granting Attorney’s Fees, Sanctions, And Costs Are Independently Appealable

Case Involved Application of the Disentitlement Doctrine.

            Findleton v. Coyote Valley Band of Pomo Indians, Case Nos. A156459 et al. (1^st Dist., Div. 2 Sept. 29, 2021) (published), although primarily involving application of the disentitlement doctrine to dismiss appeals by a tribe unless they complied with certain lower courts within 90 days, also contained a nice discussion on the independent appealability of orders granting attorney’s fees, sanctions, and costs.  The 1/2 DCA explains why many of these orders are final and separately appealable at pages 24-25 of the Slip Opinion, which we commend you to read in order to avoid deadline issues. 

Appealability, Deadlines, Family Law: Ex-Husband’s Appeals Of Postjudgment Fee Orders Doomed By Untimeliness Of Appeal On One Order And Lack of Merit On The Other Two.

Pay Attention to Appellate Deadlines, If You Want To Preserve Challenges.

            In Marriage of Mhanna and Hage, Case Nos. H045078 et al. (6^th Dist. Sept. 24, 2021) (unpublished), ex-husband challenged three attorney fees orders: (1) a first order awarding fees to ex-wife under Family Code section 271 and 2030 to the tune of $80,000; (2) a second order denying his motion to set aside the fee order; and (3) an order to enforce the fee order through a QDRO procedure.  He did not win any of his challenges.  With respect to the first order, the 271 sanctions order was appealable, and he blew the longest 180-day deadline in which to appeal. He argued that the appeal was extended based on the denied set aside motion, but no authorities were provided to support that motion and, even if it was proper, he blew the 90-day deadline after that motion was denied.  On the second order, husband provided no adequate record for review, and he was given enough time to prosecute for due process purposes.  On the third order, the QDRO request was ultimately denied such that he was not aggrieved from what happened before.

Appealability, Probate, Reasonableness Of Fees: Trustee’s Failure to Appeal Prior Separately Appealable Order On Fees Was Dispositive On Most Issues

As Far As Amount Of Fees, Failure To Include A Reporter’s Transcript Was Equally Damning.

            In Padlan v. Graves, Case No. A159576 (1^st Dist., Div. 3 Sept. 17, 2021) (unpublished), a trustee was ordered to pay certain attorney’s fees to a beneficiary based on reneging on a mediation settlement agreement.  That order was made in March 2019 and served by the trial court within 60 days.  Trustee did not appeal it.  Later, in a December 2019, the lower court refused to revisit the March 2019 fee orders, although this December 2019 order was appealed by trustee.  The 1/3 DCA decided that much of the fee challenges could not be entertained because trustee did not mention the March 2019 in her appeal of the December 2019 order and, also, the March 2019 order was separately appealable under Probate Code section 1300(g) relating to fixing of fees as it relates to a fiduciary.  With respect to the amount of the fees, that too failed because trustee failed to provide a reporter’s transcript as part of the record so as to show whether there was any abuse of discretion as far as amounts awarded. 

Appealability, Trade Secrets: Denial Of Attorney’s Fees Under Trade Secret Statute, Before Resolution Of Entire Case, Was Not Appealable For Now

Order Dismissing Appeal Was Recently Published.

            In Dr. V Productions, Inc. v. Rey, Case No. B312605 (2d Dist., Div. 5 Sept. 10, 2021) (published), the appellate court confronted whether the denial of a $273,484.56 attorney’s fees request under the trade secret fee-shifting statute (Civil Code section 3426.4) was appealable where the trade secret claim was dismissed even though other claims were outstanding.

            The appellate court dismissed the appeal because the interlocutory order was not appealable.  In this case, the collateral order doctrine did not apply because this was not a grant of fees ordering payment of money.  The expansive interpretation of the collateral order doctrine was not prudent, especially given that other claims were pending (which did involve trade secrets issues, only under the rubric of other claims).   Put another way, the review of the denial of trade secret fees had to await a further resolution of all claims. 

Appealability, Class Action, Common Fund: Ninth Circuit, In A Case Which Was Not A Classic Common Fund Case When Google Agreed To Pay Class Action Counsel Outside Of Fund, Determines Award Of $725,580.80 To Class Counsel Was Not Appealable

No Final Judgment/Settlement Occurred, With Google Agreeing To Pay Outside Of The Common Fund, And With The Collateral Order Doctrine Not Inapplicable Under The Circumstances.

            The Ninth Circuit, in AdTrader, Inc. v. Google, LLC, Case No. 20-15542 (9^th Cir. July 30, 2021) (published), faced an interesting fact pattern as evidenced by this passage near the end of the opinion:  “ . . . this case neither fits the situation under which the ‘common fund’ doctrine developed nor meets the requirement of unreviewability that is essential to the limited collateral order exception to finality.”  Because of these wrinkles, it dismissed an appeal for lack of appellate jurisdiction.

            AdTrader, individually and on behalf of a class, sued Google on behalf of advertisers who used Google advertising services but received no refunds for invalid traffic in line with Google policies.  As some point in the litigation, Google informed the district court that it would issue $65.7 million in refunds to advertisers using the platform DoubleClick Bid Manager but that it would continue to litigate the remaining AdTrader class claims, although agreeing to pay AdTrader’s fees, if awarded by the district court, out of Google’s own pocket rather than have the fees paid out from the common fund.  AdTrader’s counsel argued that they produced a benefit to DoubleClick advertisers, moving for fees under CCP § 1021.5 and from the common fund.  The district judge denied fees under the California statute but awarded class counsel fees of $725,580.80 (after downward reductions and after application of a 1.6 multiplier) under the common fund doctrine.  AdTrader, unsatisfied with the amount of fees awarded, appealed, even though the Google litigation was still ongoing.

            The Ninth Circuit dismissed the appeal given the peculiar circumstances of the case.  Although agreeing that some “common fund” awards (even though this was not a classic one) might be appealable (example:  class members distributions and interim fees were ordered to be distributed such that supplemental fee awards would be gone from the fund), this case did not fit into that logic because there was no final decision on the merits or no final settlement—with Google agreeing to pay fees outside the fund no matter what (as long as awarded by the district judge).  The collateral order doctrine did not apply, because it was not shown that the order is not effectively unreviewable upon appeal given Google’s commitment to pay the fees.

Appealability, Appeal Sanctions, Discovery, Sanctions: $4,900 In Monetary Discovery Sanctions Affirmed

However, Frivolous Appeal Sanctions Denied For Failure To Show The Appeal Was Brought For An Improper Motive.

            In Lazo v. Keller, Case No. G058765 (4^th Dist., Div. 3 July 29, 2021) (unpublished), two plaintiffs separately were ordered by the lower court to pay $4,900 in monetary discovery sanctions to defendant.  Plaintiffs’ appeal was dismissed in a 3-0 opinion authored by Justice Fybel.  The reason was that the sanctions order did not exceed $5,000 such that it was not appealable, requiring a dismissal of the appeal.  (Code Civ. Proc., § 904.1(a)(12).)  Defendant moved for frivolous appeal sanctions, but that request was denied because there was no evidence it was brought for an improper motive.  (In re Marriage of Flaherty, 31 Cal.3d 637, 650 (1982) [our Leading Case No. 9].)

Appealability, Lodestar, Partition, Substantiation Of Reasonableness Of Fees: Lower Court’s Award Of Fees To Winning Beneficiaries And Property Owner In Partition Action Was Affirmed On Appeal

Apportionment Under Partition Statutes Is Vested Within Lower Court’s Equitable Discretion.

            In Hofmann v. Hofmann, Case No. F079977 (5^th Dist. July 15, 2021) (unpublished), trustee son Michael was obviously not happy when he lost a partition action to trust beneficiaries (his siblings) and the current property owner.  Beneficiaries and property owner, respectively, filed attorney’s fees motions under the partition statutes, primarily Code of Civil Procedure sections 874.010 and 874.040, which allow the lower court wide discretion to determine if fees were incurred for a common benefit or should be apportioned against a loser who drove up the costs of litigation.  That is what happened to trustee Michael, with the lower court granting the beneficiaries $122,395.81 and the property buyer $191,031.50, about a 50% apportionment based on certain interests.  Michael was unhappy, so he appealed.

            The Fifth District affirmed the fee awards.

            With respect to the beneficiaries, they could not entertain the challenges because Michael failed to appeal the post-judgment fee order—something we have constantly reminded our readers to do.

            Although the appeal was timely as to property buyer, the buyer was entitled to fees under sections 874.010 and 874.040 because Michael engaged in some spurious activities and the “common benefit” apportionment was not out of bounds.  Michael also challenged the amount of fees, but the lower court properly utilized the lodestar method and Michael waived any challenge that the requested fees were “padded” because he failed to include the detailed billing records in the appellate record for review. 

Appealability, Costs, Discovery: Denial Of $1.1 Million For Electronic Discovery Costs Reversed Because Lower Court Seemed To Indicate No Discretion On Awarding Them

Modern Trend Is To Recognize E-Discovery Recoupment Costs As Long As They Are Justified.

            Ya know, times change, technology changes, and jurisprudence changes.  Although unpublished, City of Los Angeles v. PricewaterhouseCoopers, LLP, Case No. B305583 (2d Dist., Div. 5 July 8, 2021) (unpublished) shows how electronic discovery costs may be awardable, if justified, based on  evolving technological changes from an early appellate court decision which was adverse to recovery of these costs.  (We do not discuss the affirmance of some substantial costs reductions for out-of-town attorneys traveling and attending depositions, because the reductions were in order given that the same law firm had Los Angeles attorneys who could attend rather than New York travelling attorneys.  If you need support for these reductions, you can read the decision.)

            What happened here is that the City of Los Angeles voluntarily dismissed a suit, with defendant moving to recover about $1.1 million in electronic discovery costs, mainly for processing/loading, hosting, and producing documents.  The lower court denied all the requested costs based on an older decision in Science Applications Internat. Corp. v. Superior Court, 39 Cal.App.4^th 1095, 1103-1104 (1995), deciding that routine costs in this area should be denied in an earlier time where the technology costs were substantial and the rationale for granting them was more attenuated.  Much has changed with technology since Science Applications, given that subsequent decisions generally show a proclivity to award these electronic discovery costs as long as they are supported as being necessary and reasonable in nature.  (See, e.g., El Dorado Meat Co. v. Yosemite Meat & Locker Service, Inc., 150 Cal.App.4^th 612, 620 (2007); Bender v. County of Los Angeles, 217 Cal.App.4^th 968, 990-991 (2013); Hooked Media Group, Inc. v. Apple Inc., 55 Cal.App.5^th 323, 338-339, 351 (2020).)  Because these costs are not prohibited and can be awarded in the trial court’s discretion, the denial based on an outright ban had to be reversed and remanded for another look. 

            BLOG MILEAGE TIME—Although there is a split in thinking, this appellate panel also sided with the view that an order taxing routine costs is appealable as a post-trial order, following Mesa Shopping Center-East, LLC v. O Hill, 232 Cal.App.4^th 890, 898 (2014) and Gassner v. Stasa, 30 Cal.App.5^th 346, 354-355 (2018), but not following the contrary decision in Mon Chong Loong Trading Corp. v. Superior Court, 218 Cal.App.4^th 87, 92 (2013).  The panel found its conclusion was consistent with the treatment of collateral final orders.  (Krikorian Premiere Theatres, LLC v. Westminster Central, LLC, 193 Cal.App.4^th 1075, 1083 (2011).) 

Appealability: $75,105 In Labor Code Fees Award To Plaintiff Was Affirmed

Defendants Failed To Properly Appeal Postjudgment Fees Award, As Well As Not Presenting Adequate Appellate Record.

            In Hernandez v. Princess Windows, LLC, Case No. B302750 (2d Dist., Div. 2 June 1, 2021) (unpublished), plaintiff employee won wage/hour and rest break claims/penalties against defendant, totaling $58,861.  Based on fee-shifting statutes, another $75,105 in attorney’s fees were awarded to plaintiff.  Defendant never appealed the subsequent fee award.  That was bad, given the court had no jurisdiction to entertain a review of this order.  Beyond that, defendant never provided the fee award as part of the appellate record and a prior motion to augment the record was denied.  In sum, the fee award was affirmed.

Appealability: Incorrect Date In Notice Of Appeal, Corrected In Civil Case Information Statement, Did Not Mean Appeal Was Untimely

But Appeal Was Denied On The Merits.

            In Ko v. Liang, Case No. B303813 (2d Dist., Div. 8 May 27, 2021) (unpublished), appellants appealed a fee award based on failing to satisfy a pre-condition mediation requirement, something decided long ago.  Ultimately, appellant lost on the merits.  However, respondent argued that the appeal was untimely based on a typo in the notice of appeal, even though this was corrected in the Civil Case Information Statement which must be filed in the appellate court.  This typo did not mean the appeal could not go forward because it was untimely—after all, notices of appeal are liberally construed and the error was corrected in the subsequent Statement.  With that said, appellant lost on the merits. 

Appealability, Experts, Section 998: 2/8 DCA Declines To Consider Plaintiff’s Arguments Against Trial Court’s PostJudgment Award To Prevailing Defendants Of Section 998 Expert Witness Fees

Plaintiff’s Failure To File A Notice Of Appeal On The PostJudgment Award Deprived Appellate Court Of Jurisdiction.

            In Nash v. Romano, Case No. B303765 (2d Dist., Div. 8 April 12, 2021) (unpublished), plaintiff tenant sued her landlords after she broke her ankle while stepping on an allegedly unstable backyard paver.  The jury returned verdict in favor of landlords and the trial court entered a defense judgment – prompting an appeal by plaintiff.  Meanwhile, landlords move postjudgment for costs, which included roughly $33,000 in expert witness fees.  After the trial court denied plaintiff’s motion to tax costs, she included arguments in her appellate briefs that the trial court erred in awarding landlords with expert fees pursuant to Code Civ. Proc. § 998.

            The 2/8 DCA considered plaintiff’s appeal of the judgment and affirmed.  However, the panel declined to consider plaintiff’s arguments concerning the expert fees due to lack of jurisdiction.  Plaintiff did not include the expert fees in her notice of appeal, which indicated only that she was appealing a judgment after jury trial, and did not separately appeal the postjudgment order or award.  (Pfeifer v. John Crane, Inc., 220 Cal.App.4th 1270, 1316 (2013) [discussed in our November 4, 2013 post].)

            Plaintiff’s argument that she could not file a notice of appeal challenging the award of expert fees because the trial court never filed an order awarding the fees was of no avail as there is nothing to challenge on appeal until such an order has been entered. 

Appealability: Defense Side’s Failure To Appeal Fee Award/Amended Judgment, Much Less Include Fee Motion Paperwork In Appellate Record, Doomed Any Challenge On Appeal.

$125,000 Fee Award Challenge Could Not Be Entertained.

            In RSF Associates, LLC v. Nieto, Case No. D076227 (4^th Dist., Div. 1 Feb. 18, 2021) (unpublished), plaintiff contractor won a $37,222.61 damages award against a landscaper defendant, with the defense cross-complaint recovering nothing.  Later, plaintiff obtained a fees/costs award against defendant of more than $125,000, with an amended judgment issued later to include the compensatory award plus the fees/costs award. 

            The defense was not happy with the result, including the fee award.  However, the appellate court could not even consider the fees/costs challenges.  The defense only appealed the original judgment, not the subsequent fee award or the amended judgment including the fees/costs award.  Beyond that, the defense’s designation of record included no pleadings relating to the fees motion.  Because no appeal was made of the separate fees/costs award, jurisdiction to entertain challenges on that award was not present.  However, the failure to even provide a record of the fees proceedings also doomed any challenges on the merits, even if the jurisdictional obstacle could have been surmounted. 

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!

Appealability, Discovery, Sanctions: Appeal Of Terminating Sanctions Does Not Necessarily Also Encompass Challenge To Discovery Monetary Sanctions

2/7 DCA Implicitly Suggests Disagreement With Other Decisions, But Finds Two Sanctions Orders Were Not Intertwined.

            OK, for you folks who love technical appealability issues, Taylor v. Forde, Case No. B298957 (2d Dist., Div. 7 Jan. 20, 2021) (unpublished), may be your forte, especially when it comes to appealability of discovery terminating sanctions orders and discovery monetary sanctions.  Be careful when you appeal a terminating sanctions order.

            What happened here is that both discovery terminating sanctions and monetary sanctions orders were entered, but no judgment was ever entered on the complaint or stricken cross-complaint—no default prove-up proceedings resulted in a final judgment.  Appellants appealed the terminating sanctions order, but they did not contest the monetary sanctions order.  The lack of a final judgment on the merits sealed the deal with respect to appealing the terminating sanctions order, except for appellant’s argument that the appeal of the monetary sanctions preserved the appeal of the terminating sanctions.  Appellant argued that the terminating sanctions order was “inextricably intertwined” with the monetary sanctions order over the $5,000 limit such that everything was good. 

            The 2/7 DCA disagreed, dismissing the appeal.  It questioned whether the “inextricably intertwined” exception in Nickell v. Matlock, 206 Cal.App.4^th 934 (2012) and Mileikowsky v. Tenet Healthsystem, 128 Cal.App.4^th 262 (2005) was valid.  However, the terminating sanctions and monetary sanctions orders were not intertwined given no suggestion the sanctions order was erroneous, all the more so because they serve different purposes.  Because the terminating sanctions order was nonappealable and not intertwined, the appeal was dismissed.