Third District, in Unpublished Decision, May Have Parted Company From Fourth District, Division Two’s View on the Issue.
In our June 7, 2008 post, we reviewed P R Burke Corp. v. Victor Valley Wastewater Reclamation Auth., 98 Cal.App.4th 1047, 1050, 1055 (2002), where the Fourth District, Division Two held that an appellant preserved review of a fee award where appellant appealed either the initial judgment awarding fees or the second judgment fixing the amount of the fees. The Third District, in a recent unpublished decision, apparently thinks otherwise.
The appellant in Christie v. Piccolotti, Case No. C056398 (3d Dist. Nov. 14, 2008) (unpublished) failed to timely appeal an initial judgment against him awarding damages “plus attorney fees and costs” in an amount to be determined through a cost memorandum and subsequent fee motion to determine the amount of fees, but did timely appeal the subsequent judgment fixing the amount of fees after the trial court’s ruling on respondent’s fee motion. Too late, the Third District held, dismissing the appeal.
The Court of Appeal principally relied on Grant v. List & Lathrop, 2 Cal.App.4th 993, 998 (2002), which reasoned that a notice of appeal from an initial judgment awarding fees subsumes the later order setting the amounts of the fee award. However, the Third District then used Guillemin v. Stein, 104 Cal.App.4th 156, 161 (2002)—which stated that a postjudgment order, to be appealable, must raise a different issue than embraced by the judgment in order to prevent an appellant from having two chances to appeal the same ruling—as the logical bridge to conclude that appellant’s failure to appeal the initial judgment awarding fees was tantamount to trying to get an unwarranted “second bite” through appeal of the subsequent order fixing fees.
BLOG OBSERVATION—This area needs clarification given the apparent divergence between this case and PR Burke. Grant also has engendered some confusion, as observed in the unpublished decision of Sanders v. Lawson, slip opn. at 13, fn. 8, reviewed on our July 1, 2008 post. Such a recurring appealability issue needs to be sorted out so that appellants and appellate practitioners know with clarity the procedural deadlines for appealing fee awards.