Plaintiff Failed to Properly Present His Estoppel Theory For Factual Exploration By the Trial Court; Appealability Issue Did Not Impact Appeal, But Waiver Did.
Plaintiff, who suffered an adverse SLAPP fee recovery of $12,633, might have had a chance on appeal on an estoppel theory. However, the problem is that he did not properly present it for consideration by the trial court, resulting in a waiver on appeal.
In Hartnett v. San Diego County Bd. of Education, Case No. D059646 (4th Dist., Div. 1 May 25, 2012) (unpublished), plaintiff had a letter from opponent’s counsel that conceded the defendant Commission did not pay legal fees and could not take an active role in arguing for recovery of fees if its motion were granted. Plaintiff, however, did not raise/develop the equitable estoppel issue in opposition paperwork and only mentioned it in fleeting reference during oral argument on the fee motion. (The letter was attached to an opposition declaration.) Given that estoppel is a factually intensive doctrine, this presentation was too cursory such that the argument was forfeited on appeal.
With respect to appealability, the defense claimed that the appeal should be dismissed because plaintiff only appealed the fee fixing second order rather than a first order indicating entitlement to fees but fixing later. Nope, said the appellate panel. Plaintiff did appeal the postjudgment order awarding (fixing the amount of) fees and costs, which was a separately appealable order. (PR Burke Corp. v. Victor Valley Wastewater Reclamation Auth., 98 Cal.App.4th 1047, 1053 (2002).)