Fourth District, Division Three Also Faces Grant/P R Burke Appeal Untimeliness Issue.
Two interesting issues were raised in Presiding Justice Sills’ opinion on behalf of the Fourth District, Division Three in Kenney v. Tanforan Park Shopping Center, Case Nos. G038323 & G039372 (4th Dist., Div. 3 Dec. 15, 2008) (unpublished). The first concerns timeliness of an appeal, involving debate around an issue that needs clarification. The second concerns whether the Santisas bar—precluding a fee award under Civil Code section 1717—applies where the work in the previously dismissed action is used in a subsequent refiled action. Keep reading and you will determine how these issues were resolved.
Two brokers won damages against a shopping center under an exclusive listing agreement that had an attorney’s fees clause. The original judgment was entered on January 3, 2007, reciting that brokers were prevailing parties entitled to fees. On March 21, 2007, shopping center timely cross-appealed after brokers appealed earlier on March 1, 2007. Fees were fixed in favor of brokers through a June 22, 2007 order, which was included in an amended judgment of July 17, 2007. Shopping center cross-appealed from the amended judgment on September 27, 2007.
In the review of shopping center’s cross-appeal of the fee award, two issues had to be resolved.
The first challenge was brokers’ claim that the appellate court lacked jurisdiction to consider the cross-appeal because shopping center only appealed from the original judgment rather than from the June 22, 2007 order fixing fees. In rejecting this argument, Justice Sills principally relied on Grant v. List & Lathrop, 2 Cal.App.4th 993, 998 (1992), which held that the cross-appeal from the initial judgment would subsume the later fee fixing award and the appealing party has the option of appealing either the judgment or postjudgment order. The appellate panel distinguished the interlocutory order reasoning of P R Burke Corp. v. Victor Valley Wastewater Reclam. Auth., 98 Cal.App.4th 1047, 1055 (2002), observing that Burke concerned a situation with no postjudgment order determining the amount of fees so that the trial court could have still ruled that zero fees should be awarded. “Because the amount of fees was left to be determined, additional judicial action was required to determine the rights of the parties.” In contrast, the trial court in Kenney did fix fees, so that nothing was left to be determined. (BLOG OBSERVATION—Although all these distinctions are valid, courts do seem to take varying tacks on how they interpret Grant such that the area is in need of clarification. See our November 15, 2008 post discussion of the unpublished Third District decision of Christie v. Piccolotti.)
The second challenge was shopping center’s claim that fees from the prior dismissed action were not awardable in the second action. Not so, said Justice Sills, because a much different situation was presented. “However, the original brokers did not seek recovery in the dismissed action, as precluded by [Civil Code] section 1717, subdivision (b)(2). Instead they sought such recovery in the second action, in which they prevailed and were properly entitled to attorney’s fees under section 1717, subdivision (a).” The appellate court cited Stokus v. Marsh, 217 Cal.App.3d 647, 656 (1990) as support for this proposition. The result also made sense in Kenney, because the trial court had precluded the parties from completing further discovery in the second action and instead ordered that the discovery in the first action was deemed to be at play in the subsequent matter. It would have been unfair to disallow brokers from recouping fees for discovery in the first action that was necessarily used in the second action. Thus, the trial court did not abuse its discretion in awarding fees from the first action to brokers as the winners in the second action.