However, Defense Challenges Did Not Prevail On Appeal.
In Polaris Medical Academy, LLC v. Allen, Case No. G045800 (4th Dist., Div. 3 June 24, 2014) (unpublished), plaintiffs won a judgment totaling $450,000 against various defendants, with the judgment stating “Plaintiffs shall recover costs in the amount of $___________ and attorneys’ fees in the amount of $_________ for a total judgment of $_________,” but with a statement of decision indicating the court would consider any motion for attorney’s fees. However, the defense did not appeal the postjudgment orders denying their fees request or the motion for attorney’s fees by which plaintiff garnered $498,000 in fees against the defense.
The defense appealed, but was shut out on the merits in a 3-0 decision authored by Acting Presiding Justice Fybel.
It first had to get by a jurisdictional appealability issue. Generally, an appeal of the judgment with such blanks (even though the amount was fixed later) will suffice. Grant v. List & Lathrop, 2 Cal.App.4th 993, 997 (1992). However, in Silver v. Pacific American Fish Co., Inc., 190 Cal.App.4th 688, 692 (2010), the failure to appeal the subsequent fee award was fatal where it was clear the entitlement and amount of fees was left to a separate postjudgment proceeding. Here, the reviewing court found that it was not clear whether the judgment intended the result to be left to another proceeding based on the statement of decision murky language. So, the merits could be entertained.
However, the defense did lose and plaintiff did obtain its litigation objective under a broad operating agreement fees clause. So, no disturbance in the universe.
BLOG OBSERVATION—Please, please separately appeal fee orders. It may be superfluous, but it can’t hurt—or could, if you don’t appeal and the reviewing court said you should.