Failure To Do So Doomed Appeal In This Case.
We will admit that the jurisprudence in this area is somewhat confusing in nature and fact dependent. But it does not vary from the lesson that we have posted on before based upon results in actual cases: separately appeal postjudgment fee awards, do not take chances they are subsumed in prior merits judgments. If you take the chance, you may reap the risk in not appealing—the appellate court has no jurisdiction to entertain your appeal on the fee challenge!
Appellant in Whitney v. Brothers, Case No. A146906 (1st Dist., Div. 4 Oct. 3, 2018) (unpublished) sought to challenge a postjudgment fee award made through a November 2015 order, but instead only appealed from an earlier September 2015 judgment which contained no fee award at all. Instead, the later November 2015 attorney’s fees order and amended judgment did set forth the fee order. Any problem guessing what happened? You are right—the failure to appeal the later fee order/judgment was fatal. The September 2015 judgment clearly stated that a prevailing party and fee award, “if any,” would be decided at a later date. This meant any appeal from this judgment did not preserve an appeal of the subsequent fee ruling. (Silver v. Pacific American Fish Co., Inc., 190 Cal.App.4th 688, 691-692 (2010).)