First District, Division 4 Applies a Cardinal Appellate Principle.
As we have stressed in past posts on appellate practice, litigants needs to make sure that they provide an adequate appellate record for review of fee determinations. If they do not do so, affirmance is a foregone conclusion. The next case illustrates this well.
Zarate v. Manuel, Case No. A120686 (1st Dist., Div. 4 May 28, 2009) (unpublished) involved an award of $69,753.97 in fees to a prevailing party successfully suing to enforce a written settlement agreement even though the party requested an award of $107,702.50. The party hit with the adverse fee award appealed, but did not include any record of the oral proceedings on the fee motion.
That was a big mistake.
California Rules of Court, rule 8.120(b) requires submission of a reporter’s transcript if appellants raise an issue that “requires consideration of the oral proceedings in the superior court.” Because the issues raised by appellant (abuse of discretion in the amount of the award and failure to allow oral testimony at the fee hearing) implicated the oral proceedings, the failure to provide a record of them was fatal. Result: fee award affirmed.
BLOG UNDERVIEW—We do not want to sound like a broken record, but appellate law is a specialty and does have its own set of rules. Disobey them, and suffer the consequences—as in Zarate. Also, we recently had the opportunity to meet with Benjamin Shatz, an appellate specialist who is with Manatt Phelps in West Los Angeles. He likes our blog and has provided us with tips/cases along the way. Ben, great to meet you and thanks for the support. (Ben has very seasoned credentials and has many, many appeals to his credit.)