Second District, Division Eight Dismisses Appeal of Fee Motion Denial for Lack of Jurisdiction, Reminding Us That A Fee Determination Is Only Appealable After Entry of An Appealable Order or Judgment.
Increasingly, appellate courts have become less lenient for litigants’/practitioners’ failures to appeal from appealable orders or judgments. For example, no appeal technically lies from an order sustaining a demurrer without leave on all claims; the appeal lies from a subsequent judgment of dismissal based on the demurrer ruling. Sometimes, appellate courts have rescued appeals from such demurrer rulings by treating the appeal as a petition for writ of mandate. However, there have been stern warnings from some appellate panels that they will not rescue litigants/practitioners from nonappealable orders in situations where formal orders or judgments are necessary. See, e.g., Jordan v. Malone, 5 Cal.App.4th 18, 22 (1992); Shpiller v. Harry C’s Redlands, 13 Cal.App.4th 1177 (1993); Cohen v. Equitable Life Assurance Society, 196 Cal.App.3d 669, 671 (1987). The more modern rule came around to "bite" the winning litigant in the next case, resulting in the dismissal of his appeal.
Renteria v. Cruz, Case No. B196359 (2d Dist., Div. 8 Sept. 18, 2008) (unpublished), involved Renteria, an unlicensed stucco/plaster subcontractor who built scaffolding for a home improvement project. After a worker fell off the scaffolding, the worker sued Renteria, the contractor who hired Renteria (Cruz), and the owner of the house (Fregolee). Cruz and Renteria filed indemnity cross-claims against each other, and Fregolee got out on a summary judgment motion. After several days of trial, Renteria filed a directed verdict motion against Cruz on Renteria’s cross-complaint and a nonsuit motion against Cruz’s cross-complaint, arguing that Renteria was Cruz’s employee acting within the source and scope so as to be entitled to indemnification for fees/costs under Labor Code section 2802. The trial court orally granted both motions in a terse two sentence pronouncement with no express findings. Injured worker dismissed his complaint against Renteria without prejudice, so that the trial only proceeded against the worker’s claims against Cruz. The jury returned a verdict against Cruz (finding him 35% responsible), and judgment was entered based on the verdict (with nothing said about Renteria).
Renteria filed a motion seeking an attorney’s fees award of $132,837.50 from Cruz. The trial court denied the request. While acknowledging the indemnification basis under Labor Code section 2802, the trial judge ruled he had made no express determination as to whether Renteria was acting within the course and scope, which required a denial of the fee request. Renteria appealed from the fee denial order.
In a decision dismissing the appeal for lack of jurisdiction, the appellate panel—in a 3-0 decision authored by Justice Bigelow—reminded us all of an important twist in appealing attorney’s fees orders: attorney’s fees orders after judgment are appealable under Code of Civil Procedure section 904.1. If no appealable judgment was the precursor to the fee order, then appellate jurisdiction likely will be found lacking.
That is exactly what occurred here. The summary judgment in favor of Fregolee and the judgment upon verdict in favor of injured worker did not relate to Renteria. Appellant never obtained entry of judgment based upon the directed verdict motion, which was fatal because an order on a directed verdict motion is not itself appealable. (Hilliard v. A.H. Robins Co., 148 Cal.App.3d 374, 384-385 (1983).) The appellate panel did not want to rescue the flaw by amending the judgment, citing toJordan v. Malone, supra, 5 Cal.App.4th at 22 for the view that strict compliance with the appealable order rule was in order.
However, the Court of Appeal suggested that not all was lost. If Renteria were to secure a judgment on the directed verdict/nonsuit motions, the appellate panel indicated that it might disagree that the "course and scope" issue was not ruled on—hoping to save time and expense if the fee order was challenged after entry of an appropriate judgment on the merits issue.
BLOG OBSERVATION—Since 1963, Code of Civil Procedure section 581d requires that all involuntary and nonsuit dismissals must be in the form of a written order, signed and filed, with such orders constituting judgments. This amendment makes minute entries in this area ineffectual and nonappealable, a reminder for all practitioners entering the appellate arena to not blindly rely on minute orders as necessarily being appealable in nature.