Legal News and Appellate Tips

Need to get attorney fees after winning your case? The deadline to file your motion is the same as the deadline to appeal, and here’s an example of the strange mysteries of the “triggering document” rules that trigger the 60-day deadline.

After a trust beneficiary won her first appeal, on remand in Karamooz v. Karamooz (D4d3 Nov. 14, 2022) no. G060515, 2022 WL 16918764 (nonpub. opn.) the probate court held a further hearing.

Then the court issued a couple of rulings that are the pieces of the puzzle of the 60-day deadline:

First, in June, the court issued a tentative decision.

Then in July, the court issued a modified statement of decision and order. The clerk served a filed-stamped copy of the modification.

Finally, in August, the respondent served a notice of entry of the tentative—but not the modification.

The appellant filed her fee motion in October—within 60 days after service of the notice of entry of the tentative, but more than 60 days after service of the file-stamped copy of the tentative.

So was the fee motion timely?

Held: The fee motion was timely. Whether the 60-day period started running from service the notice of entry of the tentative or the file-stamped copy of the modification is a trick question: neither one was complete in itself, and so neither was effective to trigger the 60-day deadline.

In one of those familiar scenarios where the costs make all the difference, the plaintiff in GI Excellence, Inc. v. Padda (D4d2 Nov. 7, 2022) No. E076843 (nonpub. opn.) won a modest $65,000 award after trial, but then sought over $755,000 in contractual attorney fees. When the trial court denied the fee motion in its entirety, the plaintiff appealed. (The record did not reflect the trial court’s for the denial.)

But in its Appellant's Opening Brief, the plaintiff failed to address all of the arguments in opposition to the fee motion.

Instead, the plaintiff-appellant addressed only one of the defendants’ arguments in its Appellant's Opening Brief, and then addressed others in its Appellant's Reply Brief. This was, the Court of Appeal held, “a day late and a dollar short.”

On our latest podcast, appellate attorneys Tim Kowal and Jeff Lewis interview Alan Yockelson about genetic testing, Charles Manson, and whether the Cal. Supreme Court is beginning to doubt whether juries are still capable of sniffing out fraud.

Also discussed:
• The value of tentative opinions
• How oral argument can change an outcome
• Asserting objections at trial even when the judge’s mind is made up
• Why justices don't dissent or grant writ review more often

Listen to the podcast here or subscribe to the California Appellate Law Podcast on your favorite podcast player.

When the trial court issues a tentative ruling, counsel often will "submit" on the tentative and give no further argument. On occasion I have noticed counsel saying they "stipulate" to […]