'Macomber' Highlights Danger In Appealing Fee, Cost Awards

By: Benjamin G. Shatz
– Daily Journal

Isn't appealing from the judgment sufficient to challenge a fee or cost award made pursuant to that judgment? Sometimes, but frequently not.

Like other notice-of-appeal issues, there are plenty of traps for the unwary who appeal fee and cost awards. When and how to appeal depends on a number of factors, including how and when the fee and cost award is made and which party is appealing.

Accordingly, a party aggrieved by the fee and cost order must file a timely notice of appeal from that post-judgment order; an appeal from the judgment alone is not sufficient. For example, Norman I. Krug Real Estate Inv. Inc. v. Praszker, 220 Cal.App.3d 35 (1990) ("A post-judgment order which awards or denies costs or attorney's fees is separately appealable ... and if no appeal is taken from such an order, the appellate court has no jurisdiction to review it.").

This does not mean necessarily that two separate notices of appeal must be filed. One notice of appeal is sufficient as long as it expressly states that the party is appealing from both the judgment and the post-judgment fee and cost order and is timely filed as to each. For example, DeZerega v. Meggs, 83 Cal.App.4th 28 (2000) (a single notice of appeal may raise separately appealable judgments and orders).

Rather than take a jurisdictional gamble, the safer course is to appeal the statutorily appealable fee and cost order in addition to the original judgment. It is much preferable to have filed one notice of appeal too many rather than one notice of appeal too few. And to keep things simple afterwards, the appellant can move to consolidate multiple notices of appeal.

Does that mean the aggrieved party needs to file two notices of appeal? The answer depends on which party is appealing. If the party against whom the fee and cost award is made appeals from the judgment, then a second notice of appeal from the order setting the amount of the fees and costs is not required. For example, Grant v. List & Lathrop, 2 Cal.App.4th 993 (1992) ("When a judgment awards costs and fees to a prevailing party and provides for the later determination of the amounts, the notice of appeal [from the judgment by the losing party] subsumes any later order setting the amounts of the award.").

In other words, appealing from a judgment that includes an entitlement to fees and costs "encompasses" the post-judgment order determining the amount of the fees and costs. For example, R.P. Richards Inc. v. Chartered Constr. Corp., 83 Cal.App.4th 146 (2000).

But Grant's rule - that an appeal from a judgment providing an entitlement to fees and costs subsumes the post-judgment order fixing the amount of fees and costs - is a one-way street in favor of the party aggrieved by the entitlement determination.

The party awarded fees and costs cannot claim that his or her appeal from portions of the judgment also encompasses an appeal from the post-judgment order determining the amount of fees and costs. In that situation, the party awarded fees and costs must file a timely notice of appeal from the post-judgment order in order to challenge the amount of the fee and cost award. For example, Soldate v. Fidelity Nat'l Fin. Inc., 62 Cal.App.4th 1069 (1998).

Thus, the Grant rule is limited and strictly construed. For example, in Fish v. Guevara, 12 Cal.App.4th 142 (1993), the plaintiffs argued that, under Grant, their appeal from an adverse judgment that entitled the defendants to any costs and expenses allowed by law should be construed to include the subsequent post-judgment order awarding and determining the amount of expert witness fees.

The Court of Appeal refused to extend Grant, noting it was distinguishable in two important ways. First, Grant involved an appeal from a judgment that resolved the entitlement issue, but the judgment in Fish did not do so definitively. Second, Grant involved an award of costs and fees as a matter of right, but Fish involved a discretionary award.

Therefore, the Fish court refused to consider the plaintiffs' challenge to the expert fees, since they had not appealed from the post-judgment order awarding the fees. See also DeZerega (notice of appeal from judgment awarding costs did not embrace post-judgment order awarding attorney fees). As a matter of prudence, however, even where it seems that Grant certainly should apply, it never hurts to file a second notice of appeal from the post-judgment order. It is easy to consolidate this second, perhaps superfluous, appeal with the existing appeal, but it is impossible to resurrect an appeal that was never filed. Given the severe consequences for not filing a notice of appeal, caution is the wiser course.

The recent case of Macomber v. Red Robin International, 2002 DJDAR 12331 (Cal. App. 5th Dist. Oct 25, 2002) (publication withdrawn Oct. 29, 2002), highlights the application of these rules and the pitfalls that await unwary appellants. The Court of Appeal dismissed the plaintiff's appeal, ruling that her notice of appeal from the judgment did not encompass the subsequent order denying her motion for fees and costs.

Danielle Macomber had sued her former employer, Red Robin, for sexual harassment, gender discrimination and retaliation. The jury awarded her $11,760 in compensatory damages, and the court entered judgment. Both sides filed post-judgment motions. Red Robin moved for judgment notwithstanding the verdict. Macomber moved for an award of attorney fees and costs under Government Code Section 12965(b) (prevailing party in Fair Employment and Housing Act sexual harassment claim may be awarded fees and costs).

The trial court heard both motions together. The court granted partial judgment notwithstanding the verdict, reducing Macomber's compensatory damages award to an even $10,000, and took Macomber's fee motion under submission. On Sept. 13, 2000, the court issued a six-page ruling denying Macomber's motion in its entirety and ordering Red Robin to prepare and serve an order consistent with the court's ruling.

The next day, Sept. 14, 2000, the trial court filed its order granting partial judgment notwithstanding the verdict, vacating the prior judgment and entering a new judgment. The new judgment included the phrase "together with costs in the amount of $______," which the court crossed out, initialing this deletion. A week later, on Sept. 22, 2000, the court filed its written order denying Macomber's motion for fees and costs.

On Nov. 3, 2000, Macomber filed a notice of appeal from "the Judgment entered herein on September 14, 2000." The notice made no mention of the Sept. 22 order denying her motion for attorney fees. That omission proved fatal to her appeal, when the only issue raised in her opening brief was the denial of her fee and cost motion, and Red Robin moved to dismiss on the ground she had failed to appeal from the post-judgment order.

The Court of Appeal acknowledged its duty under Rule of Court 1(a)(2) to liberally construe the notice of appeal, but it concluded that no amount of liberality could stretch the notice of appeal from the Sept. 14 judgment to cover the Sept. 22 order denying fees and costs. By omitting any reference at all to that separately appealable order, there was no basis even to infer that the notice of appeal from the judgment applied to that order as well.

Next, the appellate court analyzed whether the judgment appealed from "subsumed" the post-judgment order denying fees and costs. The court concluded that it did not, because the judgment made no determination regarding the entitlement to fees and costs.

When the trial court interlineated the language in the proposed judgment related to costs, that did not indicate whether fees or costs would be awarded. It simply made the judgment silent on that issue.

Macomber argued that even if the judgment did not subsume the post-judgment written order denying fees and costs, it at least subsumed the pre-judgment Sept. 13 "ruling" denying fees and costs. The Court of Appeal rejected this argument too, pointing out that the ruling specifically required Red Robin to prepare and serve a written order. Thus, the trial court's Sept. 13 "ruling" was not a final determination of the issue.

The lesson from Macomber is clear. Never assume that appealing from a judgment embraces an appeal from a post-judgment fee and cost order. When in doubt, file another notice of appeal. A superfluous appeal always may be consolidated or dismissed, but a missed opportunity to appeal is lost forever.



pursuant to New York DR 2-101(f)

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