Fourth District,
Division One Refuses to Consider the Fee Grant Issue.
Cross-complainant failed to beat an
anti-SLAPP motion and was ordered to pay successful cross-defendants $3,998 in
attorney's fees and $80.00 in other costs.
The final judgment granting the anti-SLAPP motion was silent as to both
entitlement to or amount of fees and costs.
Later, on June 4, 2007, a separate order on the fees and costs was
issued.
Cross-complainant
only appealed the order granting the anti-SLAPP motion. However, he wanted the Court of Appeal to
consider his challenge to the fee/costs order.
No way, was
the retort of the Fourth District, Division 1 in Jones v. Barrett, Case No. D051031 (Oct. 6, 2008) (unpublished). Citing Eisenberg et al, Cal. Practice
Guide: Civil Appeals and Writs (The
Rutter Group 2007) ¶ 2:156.3, p. 2-74, the appellate panel observed
"[w]here, as here, the final judgment or order 'is silent as to attorney fees and costs (determines neither entitlement nor amount), the
failure to separately appeal a postjudgment order awarding costs and fees is a jurisdictional bar to appellate review
of the fees and costs award.'"
Cross-complainant did not even get off of home plate.
BLOG OBSERVATION—This result is
consistent with the recent decision in Melbostad
v. Fisher, 165 Cal.App.4th 987, 995 (2008). We first posted our report about Melbostad (when it was still unpublished) on July 25, 2008.