Defendant’s Failure to Properly Appeal Order Precluded Substantial Review by Court of Appeal.
If you are going to enter into the world of appellate practice, you must perfect your appeal by properly specifying what is being appealed. Otherwise, you are not likely to get to first base and certainly provide the reviewing court with an opportunity to dismiss the appeal or find it lacks jurisdiction to consider arguments on the merits. The next case, by and large, was decided on that basis, stemming from the appellant’s failure to properly file a notice of appeal from an appealable order.
City of Montebello v. Uribe, Case No. B206672 (2d Dist., Div. 5 June 16, 2009) (unpublished) involved a receivership appointment to cure substandard housing conditions in a four-unit apartment building. (The City filed a petition for receivership appointment pursuant to Health and Safety Code section 17980.7.) A receiver was appointed, with his rehabilitation plan eventually being approved by the trial court. The receiver moved for approval of his final report and for payment of fees and costs. The trial court eventually approved receiver’s final report and approved his claimed fees and costs in the amount of $50,425.98 (even though property owner had asked for a $31-35,000 reduction). However, property owner never appealed the receivership payment order. Later, City moved to recover attorney’s fees and costs for prevailing in the receivership proceeding. The lower court awarded $53,000 to City, and property owner did timely appeal this fee/cost award. (Property owner’s notice of appeal also failed to make any mention of the prior receiver payment order.)
On appeal, the appellate panel found it had no jurisdiction to consider any error with respect to the receivership payment order. The order fixing payment to the receiver was independently appealable, even where the award preceded a final judgment. (Los Angeles v. Los Angeles C. Water Co., 14 Cal. 121, 122-124 (1901); Fish v. Fish, 216 Cal. 14, 15-17 (1932).) However, appellant failed to mention this order in his notice of appeal; although these notices are liberally construed, the failure to specify each appealable judgment was fatal in the matter before the Court of Appeal. (Sole Energy Co. v. Petrominerals Corp, 128 Cal.App.4th 212, 239 (2005).)
Although property owner’s appeal was timely with respect to the fee/cost award in favor of City, the waiver doctrine ended his chances of a reversal. Property owner failed to cite authority or develop a cogent argument on the merits with citations to the record; this constituted a waiver. (Moulton Niguel Water Dist. v. Colombo, 111 Cal.App.4th 1210, 1215 (2007).) The end result: both orders were affirmed because the notice of appeal and appellate briefing were inartful in nature, reinforcing that appellate practice is a specialty where attention must be given to detail.