Judgment Affirmed Due to Waived Arguments, Incomplete Record, Conclusory Arguments, and Improper Attack on Judgment Affirmed in Prior Appeal

Timothy Kowal, Esq.
January 7, 2021

...But that's nitpicking, innit?

In the lease dispute in KJ Investment Group v. American Heritage College, (D4d3 Oct. 1, 2020) No. G058270 (unpublished), defendant, fresh off a loss on its challenge to the judgment against it, filed a second appeal, this time to the award of about $80,000 in fees. (At under six figures, I'd say it got off easy.)

But defendant did not seem terribly interested in arguing the fee award. Indeed, a puzzled Fourth District noted "[t]he purpose of this appeal [of the fee order] is unclear because [the] opening brief focuses primarily on arguing again the merits of the judgment." And you can't do that, because an appeal is not an opportunity to retry a case based on evidence not presented in the trial court. (Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444, fn. 3 ["[r]eviewing courts generally do not take judicial notice of evidence not presented to the trial court"].) Not to mention defendant did not include anything in the record concerning the underlying judgment.

So the Court denied defendant's requests for judicial notice of documents whose only relevance was to besmirch the final judgment. (I'd say it got off easy.)

Defendant did make one – and only one – argument aimed at the fee award. And that was that plaintiff's counsel had engaged in conduct (not specified) that caused plaintiff's principal (by means not specified) to provide inaccurate testimony at trial, which thus disentitles counsel to fees (for reasons not specified).

The Fourth District, still puzzled, declines to strain itself further, noting "we are not bound to develop appellants' arguments for them." (Public Employment Relations Bd. v. Bellflower Unified School Dist. (2018) 29 Cal.App.5th 927, 939.)

And besides, defendant waived that argument by not raising it in the trial court. (Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184-185, fn. 1 ["'An appellate court will ordinarily not consider procedural defects or erroneous rulings, in connection with relief sought or defenses asserted, where an objection could have been but was not presented to the lower court by some appropriate method'"].)

Held: Fee award affirmed, with respondent to recover its costs on appeal. And given its entitlement to contractual fees, it will recover its appellate attorney fees against defendant as well. Which is the same result as if defendant had been sanctioned for what appears to have been a nigh-totally meritless appeal.

Except its attorney will not have to report it to the Bar.

(So, I'd say he got off easy.)

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.