Opinion Validates Our Recommendation In Many Posts To Separately Appeal An Adverse Fee Order Or Appeal Both Rulings In A Combined Appeal If Possible.
In Williams v. Doctors Med. Center of Modesto, Inc., Case Nos. F084700 et al. (5th Dist. Mar. 27, 2024) (published), plaintiff separately appealed the granting of a SLAPP motion and a subsequent order granting fees to the successful defendants. The defense argued that the second appeal was unnecessary because any fee award would automatically fall if the merits SLAPP ruling was reversed. The Fifth District found nothing improper about the filing of the second appeal, something we bloggers have suggested in many prior posts.
The appellate court observed that there was conflicting intermediate appellate authority on the treatment of dependent fee awards. Some courts have held that they can reverse a fee award from an underlying judgment even if the fee award was not separately appealed. (See, e.g., Ulkarim v. Westfield LLC, 227 Cal.App.4th 1266, 1282 (2014); Harris v. Wachovia Mortgage, FSB, 185 Cal.App.4th 1018, 1027 (2010).) Other courts held that they have authority to reverse a fee award only when the judgment and fee award are appealed together in a single appeal or appealed separately in two appeals. (E.g., Nellie Gail Ranch Owners Assn. v. McMullin, 4 Cal.App.5th 982, 1007–1008 (2016); Allen v. Smith, 94 Cal.App.4th 1270, 1284 (2002).) Additionally, some courts have noted that “ ‘ “[w]hen a party wishes to challenge both a final judgment and a postjudgment costs/attorney fee order, the normal procedure is to file two separate appeals: one from the final judgment, and a second from the postjudmgent order.” ’ ” (Doe v. Westmont College, 60 Cal.App.5th 753, 762 (2021) [quoting Torres v. City of San Diego,154 Cal.App.4th 214, 222 (2007)].)
Better safe than sorry—do a combined appeal of the two rulings or separately appeal the fee order if there is some delay in the fee ruling so as to make two appeals necessary.