Court of Appeal Did Not Impose Sanctions, Apparently Finding Further Appeal Fees/Costs Might Punish Enough.
Zeppenfeld v. Reilley, Case No. A138668 (1st Dist., Div. 4 June 30, 2014) (unpublished) again reinforces a lesson we have stressed many a time—appeal an entry of an order denying a fee motion, even if a later judgment confirms that fact, especially if the judgment is but confirmatory of what happened earlier. The failure to appeal the prior fee denial order was dispositive from an appealability perspective. (Laraway v. Pasadena Unified School Dist., 98 Cal.App.4th 579, 582 (2002).)
The other side said, wait, this was a frivolous appeal for which sanctions are required. However, in an interesting trend we are seeing in some opinions, the reviewing court did not disagree about the frivolity of the appeal, but seemed to suggest that the aggrieved litigant could be made whole by seeking further legal fees for successfully prevailing on appeal based on a contractual fees clause. So, said the appellate court, go back to the trial court to see what fees you got on appeal, keeping in mind we remanded rather than independently sanctioned on appeal. We shall see if this remedy catches on among other appellate courts—and whether lower courts get the “hint” from the reviewing court in fee remanding proceedings where appellate sanctions could have been awarded.
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