We Clarify a Good Question on Past Posts on Appellate Decisions in the Area.
Mark Hooshmand of The Hooshmand Law Group in San Francisco sent us a good question on our August 25, 2008 post discussion of Carr Business Enterprises, Inc. v. City of Chowchilla, Case No. F051999 (Aug. 20, 2008) (certified for partial publication; unpublished on pertinent fee award issue). He was curious about why fee grant and fee denial awards would be treated differently in some contexts unless there was no prior underlying judgment on the merits. Actually, Mr. Hooshmand has hit upon an important distinction that is worthy of repetition.
Before entry of judgment, orders either granting or denying fees are not appealable but can only be reviewed on appeal from the judgment. (See Code Civ. Proc., sec. 904.1(a)(2) [postjudgment order is appealable]; Doe v. Luster, 145 Cal.App.4th 139, 146-147 (2006) [interlocutory order granting or denying fees following a successful anti-SLAPP motion generally not appealable unless the motion resulted in a judgment or dismissal disposing of plaintiff’s action]; Lacey v. Bertone, 33 Cal.2d 649, 654 (1949) [separate appeal from order denying tax costs motion appealable only when order made after final judgment; if order made before final judgment, review is made upon appeal of the judgment]; Carr Business Enterprises, Inc., supra, Slip Opn. at 8-9 [order denying fees made before entry of judgment may only be reviewed on appeal from the judgment]; Renteria v. Cruz, Case No. B196359 (2d Dist., Div. 8 Aug. 18, 2008) (unpublished and reviewed on our August 18, 2008 post) [appeal dismissed where appeal taken from order denying fees motion where no judgment entered on matters impacting the appellant].)
Nonetheless, we would remind readers of two important caveats:
- PR Burke, a decision reviewed in our June 7, 2008 post, does hold that where an initial judgment does determine a litigant’s prevailing party status and a subsequent order fixes the amount of fees, the appeal from the initial judgment subsumes the later order fixing the fee award amount. (See also Grant v. List & Lathrop, 2 Cal.App.4th 993, 998 (1992).)
- Where an initial judgment is silent about costs and attorney’s fees, the failure to appeal a subsequent postjudgment order awarding costs and fees jurisdictionally bars review of the costs/fee award. (See, e.g., Norman I. Krug Real Estate Investments, Inc. v. Praszker, 220 Cal.App.3d 35, 46 (1990); Robinson v. City of Yucaipa, 28 Cal.App.4th 1506, 1517 (1994); Johnson v. Greenberg, Case No. B197894 (2d Dist., Div. 5 June 5, 2008) [unpublished].)
See also our June 6, 2008 post for Johnson v. Greenberg.