Third District Finds No Jurisdiction to Review Under Unusual Procedural Backdrop.
In our category “Appealability,” we have canvassed many prior decisions on when an appeal of a prior merits judgment can also subsume and preserve appellate review for a subsequent postjudgment fee award liquidating the amount of the award. For example, we have looked several times at Grant v. List & Lathrop, 2 Cal.App.4th 993, 997-998 (1992), where a notice of appeal subsumed a subsequent order awarding fees, but only when the prior award did find a litigant to prevail for fee purposes (with the amount to be liquidated in the subsequent order). However, there are decisions like DeZerega v. Meggs, 83 Cal.App.4th 28, 43 (2000), which counsel that each appealable judgment or order must be expressly appealed (whether in a single notice or multiple notices) even where the several judgments and orders occur close in time.
Plaintiffs’ failure to separately appeal the right order precluded review in Teichmer v. Grass Valley Terrace, Case No. C055877 (3d Dist. June 9, 2009) (unpublished), albeit under unusual facts.
Plaintiffs won a negligence/breach of habitability $40,603.50 jury verdict against landlord and other defendants based on a mold exposure. Judgment was entered, and plaintiffs filed a notice of appeal from the judgment. In between the judgment and appeal notice, plaintiffs moved for section 1717 contractual fees of $200,766. (BLOG OBSERVATION—The fees were 5 times the eventual verdict; doesn’t this reinforce our Mission Statement that fees are the tail that wags – or better, trumps – the litigation dog.)
Prior to the hearing on the fees motion, the law and motion judge (who was not the trial judge) indicated he wanted to talk to the trial judge – a request agreed to by the parties – even though he had issued a tentative decision. Soon after the hearing date, the trial court vacated the matter and rescheduled it for hearing before the trial judge. That same day, plaintiffs filed their notice of appeal, indicating an appeal of the merits judgment and “errors in reduction of attorneys’ fees as costs.” A little over two weeks later, the trial judge actually issued an award to plaintiffs of $46,446 in fees. A fees order was filed that very day, but no appeal was taken from that order. A big mistake.
Plaintiffs appealed, but the Third District determined it had no jurisdiction to review the fee award because no proper appeal had been perfected.
Plaintiffs had a hard time convincing the appellate panel because (1) there was no prior award indicating that fees were awarded but in a future undetermined amount (as in Grant), and (2) premature appeal principles did not work because nothing had been determined on fees before the appeal notice was filed. Rather, the Third District found the situation much more akin to DeZerega—simply a premature appeal not hinged to anything related to fees. (The tentative decision never making it to an order simply did not count.)
BLOG TIP—We have said it before, but will repeat again. Litigants not liking a fee award need to separately appeal that award to be on the safe side. If you believe that a prior appeal is enough, you act at your peril!