Appellate Court Follows Erickson over Torres on Amended Judgment Procedural Issue.
This next case is a sequel to an appellate opinion we discussed in our December 1, 2009 post, where the Second District, Division 4 decided that the first 998 offer is the proper measuring stick in a case where a second 998 offer is withdrawn by the offeror.
One Star, Inc. v. Staar Surgical Co., Case No. B229034 (2d Dist., Div. 4 Nov. 22, 2011) (unpublished) is the appellate opinion after further court proceedings following in the wake of the prior opinion and may be the last opinion in the overall litigation between the parties.
Because the prior opinion remanded so that defendant/cross-complainant could seek fees and costs as the 998 offer winner, the matter did see some further lower court activities. The trial court, on remand, awarded defendant/cross-complainant $557,946.15 in total fees and costs (including appellate fees relating to the prior opinion work by defendant/cross-complainant). Unhappy plaintiff/cross-defendant appealed.
Rembrandt’s The Anatomy Lesson (1630).
Unhappiness continued on appeal.
The Second District, Division 4 rejected appellant’s argument that the fee requests were untimely because they were made 40 days after appellate remittitur issuance. With respect to the first preappeal fee request, it was timely filed within 60 days after service of the notice of entry of judgment, with the later renewed request falling within the remand directives of the appellate court in the previous opinion.
The appellate fee request was timely under Yuba Cypress Housing Partners, Ltd. v. Area Developers, 98 Cal.App.4th 1077 (2002), where a fee request made before entry of an amended judgment was deemed timely in nature. In so deciding, the appellate court followed Erickson v. R.E. M. Concepts, Inc., 126 Cal.App.4th 1073, 1081 (2005) over Torres v. City of San Diego, 154 Cal.App.4th 214, 222 (2007) in determining that a change in a fee/costs award on appeal is a substantial modification that restarts the appeals clock.