$108,935.37 Net Recovery Went POOF!; However, Result May Be Academic Because Fee Motion Can Be Renewed Following Entry Of A Final Judgment.
Prematurity of a “prevailing party” determination for fees and/or costs is a good ground to deny a litigant’s motion for the same, but it may just postpone some award in that litigant’s future depending on what finally happens. County of Napa v. Wesner, Case No. A154839 (1st Dist., Div. 1 June 24, 2019) (unpublished) illustrates that principle, although a future fee/costs proceeding may well end in the same result which was reversed because it was premature.
In Wesner, County sought to set aside a settlement agreement reached by the parties in an earlier federal action regarding an alleged public/private nuisance on the Wesners’ land. The lower court found in favor of the County’s declaratory relief claim, against the County for the nuisance claims, and reserved jurisdiction to determine rescissionary damages for the Wesners. After entering a “judgment” but before actually awarding rescissionary damages to the Wesners, the trial court awarded County attorney’s fees and costs as the prevailing party in the amount of $128,965.37, before it awarded Wesners $20,030 in damages. Later following the fee award, the trial court entered a final judgment of $108,935.37 after offsetting the $20,030 damages in the Wesners’ favor.
The 1/1 DCA reversed and remanded. It clearly did not like the sequence of events. The lower court fixed fees before there was a final resolution or judgment, which cannot pass muster. (Hsu v. Abbara, 9 Cal.4th 863, 876 (1995) [our Leading Case #2]; DisputeSuite.com, LLC v. Scoreinc.com, 2 Cal.5th 968, 876 (2017) [our Leading Case #21].) Even though the lower court alluded to a future determination of rescissionary damages in awarding fees/costs, it had not done so, making it impossible to compare relief for prevailing party purposes. So, a reversal and remand were in order so that the lower court could now weigh how the litigants did in achieving their litigation objectives. (In a footnote, the appellate court observed that if the fee motion had been made/adjudicated after the rescissionary damages award, the issue would not have been considered narrowly as it was in this appeal.)