Second District, Division 1 Discusses Technical Appeal Issues, But Also Indicates Affirmance of Award on the Merits.
When you are a plaintiff winning a fee award (which you believe was not large enough), be careful to avoid a waiver of appellate rights by accepting a check payment for the fee award. That is what happened in the next case—implied waiver precluded an appeal, although the appellate court did indicate in a footnote that the award would have been affirmed on the merits.
In Casas v. Record Town USA, LLC, Case No. B210527 (2d Dist., Div. 1 June 15, 2009) (unpublished), plaintiff sued defendant for disability accommodation violations. (The American with Disabilities Act and state counterparts do have statutory fee-shifting provision that generally run in a prevailing plaintiff’s favor.) Plaintiff accepted a $1,000 payment for defendant’s unintentional violation of the ADA in full settlement of her claims, with the trial court retaining jurisdiction to decide the fees to be awarded to her attorneys. She also agreed to dismiss the action with prejudice upon payment of the settlement amount and any fees award. Plaintiff moved for $16,076.50 in fees and costs, but was only awarded $2,000. Defendant tendered a $2,000 check that was negotiated by plaintiff without protest. Plaintiff then appealed.
Initially, the appellate panel found plaintiff’s appeal timely because she appealed after a signed order was entered (which the trial court directed one of the parties to prepare). The notice of ruling was not an appealabe order so as to trigger the running of appellate deadlines. (Shpiller v. Harry C’s Redlands, 13 Cal.App.4th 1177, 1179 (1993).) Plaintiff’s appeal was timely, when measured by the date of entry of the signed order.
Although no express waiver was found in the settlement agreement itself, plaintiff impliedly waived the right to appeal by accepting the $2,000 check payment. Because a new award after a possible reversal and remand could be less than $2,000, plaintiff’s acceptance of the $2,000 was indeed a waiver of appellate rights. (Epstein v. DeDomenico, 224 Cal.App.3d 1243, 1246-1247 (1990).)
However, the Court of Appeal even went further. In a footnote, it indicated agreement with the trial court’s reduction of the lodestar for a variety of factors. Put another way, plaintiff was not going to win on the merits anyway.