Legal News and Appellate Tips

The issue that most often drags appeals back into more litigation is attorney fee and costs. What happens when, while focusing on the appeal, the prevailing party gets a substantial award of fees and costs?

• Do you have to separately appeal from the fees and costs award? (Yes…usually.)

• How can you stay enforcement of the fees and costs award? (Fee & cost awards are stayed automatically…sometimes.)

• If you win the underlying appeal, what happens to the fees and costs award? (It goes away automatically…in theory.)

We discuss these questions and more in this nuts-and-bolts episode of the California Appellate Law Podcast.

This recent case involving the underappreciated topic of appellate stays has me heartened on one point, but dismayed on another. What is heartening: Appellate stays have teeth. In Stupp v. Schilders (D1d2 Jan. 25. 2022 no. A161177) 2022 WL 213774 (nonpub. opn.), the trial court imposed a rather large discovery sanction against Stupp totaling over $27,000. The court stayed the sanctions order pending appeal. Undaunted, the respondent’s attorney, Ester Adut, applied for a writ of execution anyway. The trial court imposed $1,050 in sanctions under Code of Civil Procedure section 177.5, and the sanctions were affirmed on appeal.

So the appellate stay was vindicated. That is the good news.

What is dismaying about Stupp is the court ignored the rule that requires a bond to effect a stay of a money judgment on appeal. The maximum stay the court could have ordered here could extend only until 10 days after the deadline to file a notice of appeal.

By operation of law, then, the stay order here had expired by the time Adut sought the writ of execution. But Adut did not raise that argument in her appellate brief. And the court did not address it, either.

The Upshot: Pay close attention to the appellate bond and stay rules. They are complicated. And you cannot rely on the courts to understand them for you.

Enforcing a judgment is hard enough before appeals and appeal bonds enter the picture. Unfortunately, the published opinion in Wertheim, LLC v. Currency Corp. (D2d1 Oct. 14, 2021) 2021 WL 4785575 (nos. B304655, B310650) now takes that picture even further out of focus. The upshot is that the defendant fully satisfied a judgment, but that was not enough: the plaintiff intended to seek more costs, and the defendant did not "condition" its payment on its constituting full satisfaction of the judgment.

Held: contrary tot Gray1 CPB, LLC v. SCC Acquisitions, Inc. (2015) 233 Cal.App.4th 882, 891, the plaintiff could continue filing motions for more enforcement costs even after the defendant had paid the entire amount of the judgment, interest, and costs then due.

Takeaways: (1) Don't wait to enforce an appeal bond — you have a year after the appeal, that ought to be plenty. (2) When seeking judgment-enforcement fees, the touchstone is "necessarily incurred," not the more familiar and relaxed standard under Civil Code section 1717. (3) If you are a defendant trying to satisfy a judgment, make it clear that is your intent, because Wertheim throws existing law on this point into doubt.

Appellate stays can play a significant role in changing the posture of litigation and the relative bargaining power of the parties. TVA appellate attorney Tim Kowal and co-host Jeff Lewis discuss appellate bonds and stays in the latest episode of the California Appellate Law Podcast.

This recent opinion discusses two appeals, both of them dismissed on procedural grounds. The first appeal was dismissed as moot because the appellant failed to obtain a stay of the […]

TVA appellate attorney Tim Kowal publishes this weekly update of legal news for trial attorneys. In this edition: more on the coming changes to juror peremptory challenges, appellate pitfalls on reconsideration motions, appeal bonds, 170.6 challenges after appeal, are Subway sandwiches "confectionary" products? and more.

TVA appellate attorney Tim Kowal publishes this weekly update of legal news for trial attorneys. In this edition: appellate tips on preliminary injunctions, summary judgments, and statements of decisions. And: appellate bonds... without collateral?!