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.

If you are involved in declaratory relief lawsuits, you might be confronted with the need for a stipulated judgment, as happened *Tos v. State of California* (D3 Nov. 30, 2021) ___ Cal.Rptr.3d ___ 2021 WL 5576552 (no. C089466). The advice suggested in the case is particularly welcome because there are horror stories about stipulated judgments in other cases in both state courts and federal courts. So here is the right way to do it.

First, recall that in *Kurwa v. Kislinger* (expressing the general rule against the appealability of stipulated judgments), there were other claims the plaintiff wanted to preserve, and so the parties entered into a tolling agreement for those claims, and the plaintiff dismissed them *without prejudice*. Also, the defendant had a pending cross-complaint. In *Kurwa*, it was clear the parties were simply "manufacturing appellate jurisdiction," rather than waiting for a final judgment as the law requires.

In contrast, in *Tos* the stipulated judgment disposed of the only claim in the case. There was no cross-complaint. The judgment was with prejudice to the plaintiff's claims. This satisfied the court that the parties were not attempting to "manufacture appellate jurisdiction" as happened in *Kurwa*.

When a court orders a party to move out of a residence, that is a mandatory injunction, which is automatically stayed upon appeal. But if the court also orders the sale of the property, the order is stayed on appeal only if a bond is given. And if the parties later stipulate to a different order, then the appeals of both of those orders are moot.

That is the thumbnail of Tearse v. Tearse (D1d4 Sep. 22, 2021) 2021 WL 4304761 (no. A158582) (nonpub. opn.). The really unusual thing about this case is how the court treated the respondent's argument that the appeal was moot. The court agreed, but was also concerned that it would operate to affirm a trial court's order that was void because entered after an automatic stay. So the court reversed that order as moot. That, surely, is not how the respondent expected his mootness argument would be taken. Be cautious with mootness arguments.

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Can parties settling a lawsuit agree to a stipulated judgment that is non-appealable? (Yes – that is rather an easy one.) What if there is a dispute whether the settlement has been performed: Is the order deciding that question appealable?

This latter question is taken up in Summit Bridge National Investments IV, LLC v. Meguerditch Panossian (D2d2 Aug. 4, 2021) no. B310067 (nonpub. opn.), and is answered in the negative. After discussing the case, I explain why I think the result is both unsupported and incorrect.

If there is any lesson to be offered here, perhaps it is to avoid stipulating to non-appealability. A stipulated judgment is not appealable anyway. There is such a thing as overdoing it.

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When you are trying to determine if an order is appealable, that question is normally pretty cut-and-dried. But not in the probate case of Manvelian v. Manvel (D2d7 Jun. 22, 2021) no. B297334 (nonpub. opn.). The Second District Court of Appeal spent several paragraphs, evaluated the factual record, and threaded its analytical needle through multiple cases, including 100-year-old Supreme Court precedent, to determine that, though it is a "close call," the order denying a motion to vacate an order confirming a settlement was appealable.

You can usually tell whether the order is appealable just by the title or nature of the order. It should not require researching 100 years of precedent to find out if an order is appealable. But that is what it took here.

The Upshot: If you plan to challenge an order or judgment in a motion to vacate in probate court, try to raise issues and evidence that were not available at the time the underlying order or judgment was issued. That will help ensure an order denying your motion is independently appealable.

But if you do not need to raise new issues or evidence, make sure to timely appeal the underlying order or judgment. (In fact, you might timely appeal it regardless. You should consult an appellate attorney in this situation.)

What's the worst can happen by taking an appeal too early? I am asked this often, and the California Supreme Court case of Kurwa v. Kislinger (2017) 4 Cal.5th 109 always comes to mind. The worst that can happen? Five years of litigation, four trips to the Court of Appeal, two trips to the Supreme Court, and easily six figures in fees, just to get back to where you were when you first asked that question.

The nub of the problem in Kurwa was that plaintiff had two obstacles to appealability. Plaintiff used a too-clever-by-half ploy to get around one (stipulating to waiver of his remaining claim without prejudice, and a tolling agreement to boot). After realizing on appeal this could not create jurisdiction, plaintiff dismissed the rest of his claims with prejudice.
But there was a second obstacle: defendant's cross-claim was still pending. And because the trial court refused to dismiss the judgment based on the ill-conceived stipulation, plaintiff was stuck "in a legal cul de sac."

Settlements of litigation sometimes involve a provision to enter a stipulated judgment in the event the defendant fails to perform. A judgment entered upon stipulation typically is not subject to challenge on appeal. But that was not the case in Park Lane Assocs., LP v. Alioto (D1d4 Mar. 5, 2021) No. A155781 (unpublished). There, the parties agreed to a stipulated judgment and an express waiver of tenants' right to appeal. Yet when the unhappy tenants did appeal, the First Appellate District did not dismiss the appeal and instead reviewed appellants' arguments on the merits (but still affirmed the judgment).

But: tenant-appellants would have been better off had the Court of Appeal simply dismissed, as the court also found tenants were liable for landlord's attorneys' fees on appeal.