Here is a common question:
A judgment is entered. Later, a separate award of attorney fees and costs is entered. Still later, an amended judgment incorporating the fee and cost award is entered.
To seek reversal of the fee and cost award, which order, or orders, must be appealed?
Answer: All three.
"'When a party wishes to challenge both a final judgment and a postjudgment costs/attorney fee order, the normal procedure is to file two separate appeals: one from the final judgment, and a second from the postjudgment order.'" (Torres v. City of San Diego (2007) 154 Cal.App.4th 214, 222 (Torres).)
(If you really only want to appeal the fee and cost award, you should be fine with just appealing that order: the underlying judgment and later amended judgment ordinarily are not necessary. But you cannot get in trouble by being extra cautious.)
The California Attorneys Fees blog reports this unpublished decision out of the Fourth District, Division Three, Tiger Loans, Inc. v. Yan Hao (D4d3 Feb. 9, 2021) No. G058954, dismissing an appeal as untimely.
On June 3, the court entered judgment against plaintiff, but did not resolve the issue of fees and costs. On September 3 defendant obtained an award of fees and costs. After a dispute over a judgment-enforcement matter, on February 26 the court entered an amended judgment including the fee and cost award. On March 5 plaintiff appealed the amended judgment. (There was no notice of entry, so the 180-day deadline applied under California Rules of Court, rule 8.104(a)(1)(C).)
"March 5, 2020 is 266 days after June 13, 2019 and 184 days after September 3, 2019. Plaintiff's appeal is thus untimely as to both the judgment and the attorney fee and cost order. The February 26, 2020 amended judgment merely added costs and attorney fees to the original judgment, and therefore did not extend the time to appeal from the original judgment. Consequently, we are without jurisdiction to entertain plaintiff's appeal and must dismiss it."
Remember: An award of fees and costs is separately appealable under Code of Civil Procedure section 904.1(a)(2). An appeal of the underlying judgment ordinarily will not encompass a later award of fees and costs. Nor will an appeal of a later, amended judgment revive the time to file a prior fee and cost order: "It is well settled . . . that '[w]here the judgment is modified merely to add costs, attorney fees and interest, the original judgment is not substantially changed and the time to appeal it is therefore not affected.'" (Torres, supra, 154 Cal.App.4th at p. 222.)
Tim Kowal helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes a newsletter of appellate tips for trial attorneys at www.tvalaw.com/articles. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.