Legal News and Appellate Tips

Each week, TVA appellate attorney Tim Kowal reviews several recent decisions out of the appellate courts in California, and elsewhere, and reports about the ones that might help you get an edge in your cases and appeals.

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Tag: Attorney Fees

Yes, You Need a Court Reporter at the Hearing on a Motion for Anti-SLAPP Fees

Having a court reporter can be critically important to create an oral record for an appeal, but it is not always necessary. Anti-SLAPP motions, for example, involve questions of law which are reviewed de novo on appeal, so a reporter's transcript is not strictly necessary. But what about on an appeal of an order of anti-SLAPP fees? The answer given in Beck v. Yozura (D4d2 Nov. 7, 2022) No. B313689 (nonpub. opn.) is:

Yep, you need a reporter's transcript.

Even if it really seems kind of silly to require a reporter's transcript, like in Beck, where the defendant’s anti-SLAPP resulted in the dismissal of exactly zero causes of action. He just got one allegation stricken.

But that was enough for a $25,000 fee award, without any reductions for the partial success. The appellate court reasoned that, although the trial court’s order did indicate it considered reducing the award, there was no reporter's transcript, so maybe it considered it there.

Takeaways:

1. Bring a court reporter to all dispositive hearings, even if they involve only questions of law and no testimony. Always assume the Court of Appeal will reach for the fact of the lack of a reporter's transcript for an easy affirmance—even if the reporter's transcript pretty clearly could have added nothing to the analysis.

2. Remember to consider requesting a statement of decision before submitting on a motion for attorney fees.

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What Happens to a Fee Award After the Judgment Is Reversed? Try a Stipulated Reversal

Here is a common scenario, with a rather uncommon resolution. You have appealed a judgment, and you have separately appealed the attorney fee award. You reversed the judgment. After reporting the victory to the client, you suddenly remember: what about the fee award?

That is what happened in *[Mid-Wilshire Property, L.P. v. Dr. Leevil, LLC](https://casetext.com/case/mid-wilshire-prop-v-leevil-llc?ssr=false&resultsNav=false&tab=keyword&jxs=)* (D4d3 Juul. 20, 2022 no. G059899) 2022 WL 2824967 (nonpub. opn.). The appellants reversed the judgment, but briefing had not even begun in the separate appeal of the fee award of almost $500,000.

Here is what the parties did: They filed a joint stipulated request to summarily reverse the attorney fee award. And the appellate court granted it.

But the court made a few comments about the parties’ request, noting the burden for a stipulated reversal under section 128(a) ordinarily is very difficult to meet.

Here, that was not really important, because the parties are correct that reversal of the fee order was inevitable after the judgment was reversed.

Tip: If you have appealed a cost award and it is not consolidated with your main appeal, you might draw the court’s attention to it in your briefing. If the court reverses, hopefully the court will also dispose of the cost appeal at the same time.

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Amendments to Judgment During Appeal Reversed for Violating Appellate Stay

The unusual thing about Kling v. Horn (D2d7 Jun. 8, 2022 no. B310164) 2022 WL 2062642 (nonpub. opn.) is that the party who won the judgment was the one raising a problem about it.

Following an arbitration over an attorney fee dispute, the trial court entered a judgment of about $120,000 to the attorney. But to the attorney’s chagrin, the judgment stated that the parties shall bear their own fees and costs. The attorney didn’t like this because he claimed he was entitled to contractual attorney fees. So the attorney moved the trial court to amend the judgment to remove that part.

But before the trial court ruled on the motion, the client appealed. So when the trial court amended the judgment confirming the arbitration award, the client appealed again. The client’s second appeal, then, argued the amended judgment violated the appellate stay.

Compounding the confusion, the trial court also granted the attorney’s motion under Code of Civil Procedure section 187 to add the client’s business entities as co-judgment debtors. Again, while the appeal was pending. This was the subject of yet another appeal, 3123 SMB, LLC v. Horn (D2d7 Dec. 14, 2021) no. B309412 (nonpub. opn.).

The court noted the trial court created a “procedural mess” by amending the judgment pending appeal.

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Greedy fee motions may be denied in their entirety

Even when a prevailing party is entitled to recover attorney fees, the court may deny fees in extraordinary circumstances. The authors of the California Attorneys Fees Blog, William (Mike) Hensley and Marc Alexander, talk about a few of the cases where excessive and unreasonable fee requests have been denied in their entirety. Also, do not call the trial judge a “succubus.”

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Creators of the CalAttorneysFees.com Blog, Michael Hensley and Marc Alexander, Discuss Tips for Requesting and Opposing Attorney Fees

The authors of the famous CalAttorneysFees.com blog, Marc Alexander and Michael Hensley, visit the California Appellate Law Podcast for episode 28 to discuss tips, traps, and best practices on attorney fee motions. We discuss why California’s attorney fees statutes can be so complicated, why reasonable fees sometimes get cut, and why unreasonable fees sometimes don’t.

Some key takeaways:

💡 Give the judge a roadmap. Explain: (1) Why you get fees; (2) Why your motion is timely; (3) What is the appropriate lodestar rate; (4) Why is the amount reasonable?

💡 Don’t be greedy! Inflated fee requests can ruin your credibility with the judge, and are likely to be severely chopped, or even denied entirely!

💡 Establish the necessity of litigation by discussing efforts to settle, and incivility by the other side.

💡 Make your objections as specific as possible.

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Waiting for a Formal Judgment Before Filing an Attorney Fee Motion Rendered the Motion Untimely

If you won your case and you have a right to recover attorney fees, mind the deadlines. The prevailing parties in Wallace v. Alameda Cnty. Mgmt. Emps. Ass'n (D1d5 Jan. 25, 2022) Case No. A162044 (nonpub. opn.) blew the deadline.

The petitioners, who had won a writ of mandate in the trial court, actually had a couple of decent ways to salvage the situation. But they were not aware of them until it was too late. For example, the petitioners argued the order granting the writ did not fully dispose of the case because they still had another case for declaratory relief.

Good argument! Except for one thing, as the court noted: “But in their motion for attorney fees, appellants argued they ‘achieved complete success and a full remedy in this action.’” Whoops.

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Judge Applied Wrong Legal Standard, Leading to Reversal of $680,000 Fee Award

In “lemon law” cases under the Song-Beverly Act, the “prevailing party” is entitled to attorney fees. But what is a “prevailing party”? Is a plaintiff who recovered $1 in nominal damages a prevailing party entitled to attorney fees (and over $680,000 in fees at that)? In a published opinion, the Court of Appeal in *[Duff v. Jaguar Land Rover North America, LLC](https://bit.ly/3Gspq1B)* (D4d1 Jan. 27, 2022 no. D078100) 2022 WL 246853 (___ Cal.Rptr.3d ___), said *no*.

But the Court of Appeal held that the CCP 1032 “net monetary recovery” standard does not apply in all cases, and does not apply to Song-Beverly cases. Instead, a “pragmatic” approach applies, including asking who achieved their litigation objectives.

What is a little awkward about the opinion is that the Fourth District Court of Appeal disapproved its own earlier decision where it held the mechanical standard under section 1032 did apply. Which is fine. But then why fault the trial court for following what was, until now, perfectly good law?

The fee order was reversed with instructions to evaluate the “prevailing party” determination based on the correct “pragmatic” standard.

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In a Confusing Appellate Opinion, Denial of Post-Settlement Fees Held Not Appealable

An order enforcing a settlement agreement is an appealable order, but what about an order *denying* enforcement of a settlement agreement? In a previous unpublished opinion (see Tim Kowal, ”[Denial of Motion to Enforce a Settlement Held Appealable]....” Dec. 20, 2021), one court reminded the bar that parties really ought to have orders on settlement-enforcement matters under Code of Civil Procedure section 664.6 entered as judgments: that way, there’s no doubt as to their appealability. But that court gave some leeway and concluded there was “no functional difference” between a grant and a denial of costs.

But the Second District gave no such leeway in its published opinion in *[Sanchez v. Westlake Services, LLC] (D2d7 Jan. 18, 2022 No. B308435) ___ Cal.Rptr.3d ___, 2022 WL 1522087. In *Sanchez*, the parties settled a consumer rights lawsuit concerning the sale of a car, with the settlement providing that the plaintiff may seek a motion for attorney fees. The trial court denied fees as barred by the sale contract. The plaintiff appealed the order denying her fees.

***The Upshot:*** When you are considering appealing orders granting or denying motions to enforce a settlement agreement subject to the trial court’s jurisdiction under Code of Civil Procedure section 664.6, ask the trial court to enter a judgment on the order. That may be the only way to ensure the order is appealable.

And there are many trap doors when your appeal is mixed up with a dismissal.

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"Notice of Ruling"​ ≠ "Notice of Entry"​ When Calculating the Extension of Time to File Attorney Fee Motion or Appeal After Denial of New Trial Motion

Pop quiz: How much time do you get to file a motion for attorneys' fees (or a notice of appeal) after an order denying a new trial motion?
a. 30 days
b. 60 days after notice of entry of judgment
c. 180 days after entry of judgment
d. It depends on how order denying the new trial motion was served.

If you answered "it depends" then you are correct, as helpfully explained in Gallop v. Duval (D2d2 Sep. 2, 2021) 2021 WL 4077847 no. B308531 (nonpub. opn.).

Closely following rule 8.108, the court noted that the new trial denial order was not served. A notice of entry was not served. The denial was not by operation of law. By process of elimination, the time to appeal was extended to 180 days after entry of the November judgment. The February motion was timely, so the trial court's denial of attorney fee motion as untimely had to be reversed.

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Private Jet Lessor's Novel Judgment Enforcement Strategy Affirmed on Appeal, Holding Debtor Waived His Challenge by Failing to Raise It Below

The judgment-enforcement case of R Consulting & Sales, Inc. v. Kim (D4d1 May 13, 2021) (non-pub.) provides several useful lessons. For attorneys representing judgment-creditors, the case provides an interesting application of a wage garnishment against a debtor's sham companies. For appellants, it provides a caution in careful drafting of the notice of appeal, and a warning that post-judgment stipulations may be deemed as an assent to the judgment – thus waiving the right to appeal.

It also suggests how new legal theories – which sometimes may be raised for the first time on appeal – will be deemed forfeited if they involve a factual question that was not raised in the trial court.

Finally, it reminds attorneys for prevailing parties to be judicious in their use of redacted billings, and to avoid block-billing.

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Selecting Issues for Appeal? Look for Misapplication of the Legal Standard, Like in This Attorney Fee Case

One of the most effective pieces in winning an appeal is issue selection. Most attorneys know, for example, that "de novo" issues are best on appeal: the Court of Appeal will not pay any deference to a trial court on issues of law.
And most attorneys also know that "abuse of discretion" issues are lousy on appeal. That is because the Court of Appeal will pay great deference to a trial judge's discretionary decisions.
But there is a significant minority of discretionary cases where the trial court so botches its analysis, or misunderstands the law, that the Court of Appeal will pay its orders no deference at all. Instead, on appeal the court will conclude that the trial court failed to exercise discretion. And a failure to exercise discretion is an abuse of discretion.
That is what happened in Southern Cal. School of Theology v. Claremont Graduate Univ. (D2d1 May 3, 2021) no. B302452 (non-pub.). The trial judge thought she did not have authority to apply a "negative multiplier" to reduce block-billed fees. That was incorrect. So back down the case goes.

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Amended Judgment Does Not Revive Time to Appeal Prior Judgment or Fee Award; Appeal Dismissed

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.

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.

(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.)

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