Fourth District, Division Two Clarifies in a 2002 Decision That An Appeal From a Judgment on the Merits and on Fee Entitlement, Even Though Amount Is Determined Later, Is Timely In Nature.
Yesterday, in our June 6, 2008 post, we discussed an unpublished Second District decision—Johnson v. Greenberg, Case No. B197894 (2d Dist., Div. 5 June 5, 2008)–holding a litigant could not have a fee challenge entertained because it did not appeal from the postjudgment fee order. In that case, however, the initial judgment was simply a demurrer ruling and said nothing about fee entitlement. The situation is different, however, where the first judgment determines the merits and also determined that a party prevailed for fee purposes, even though the amount would be determined later.
That is the direct holding in P R Burke Corp. v. Victor Valley Wastewater Reclamation Authority, 98 Cal.App.4th 1047, 1050, 1055 (2002), where the Fourth District, Division Two (in a 3-0 decision authored by Justice Richli) stated: “It follows that, in an appeal from the judgment, we could have reviewed the postjudgment order determining the amount of fees.” The PR Burke court noted that it also could review fee entitlement and amount issues from a subsequent appeal of the postjudgment fee order because the entitlement issue was not final until the subsequent order liquidated the proper amount of the fee. (Id. at p. 1055.)
PR Burke is must reading about appealability when the first judgment makes a prevailing party determination on fees but a second order actually determines the fee amount.