Sixth District Refuses to Review Adverse Fee Order Based on Plaintiff’s Failure to Timely Appeal under CRC 8.104
Plaintiff lost a motion to set aside a judicially supervised stipulated judgment in a roadway easement action. One of the defendants was granted attorney’s fees for defending the motion under a contractual fees clause. Plaintiff appealed the adverse fee order. The problem is that her appeal was untimely.
In Debert v. Isaacs, Case No. H031122 (6th Dist. Sept. 30, 2008) (unpublished), the Sixth District refused to review the fee grant against plaintiff because she untimely appealed. The fee order was served by the winning defendant upon plaintiff on October 4, 2006. She appealed on January 24, 2007. However, California Rules of Court, rule 8.104 requires that a plaintiff must appeal 60 days from October 4, 2006, something she did not do. Plaintiff’s retort was that a notice of entry is required by rule 8.104. Not quite right, said the Court of Appeal—"she overlooks that the rule does not require a notice of entry if a party serves a copy of the order itself." (BLOG OBSERVATION—The Court of Appeal is correct. See Cal. Rules of Court, rule 8.104(a)(2).) The untimeliness of the appeal meant the appellate panel lacked jurisdiction to consider the motion granting attorney’s fees. (Casado v. Sedgwick, Detert, Moran & Arnold, 22 Cal.App.4th 1284, 1286 (1994).)