Sanchez v. Westlake Services, LLC, No. B308435 (D2d7 Jan. 18, 2022)
This one is a little weird. Parties settle a CLRA case. The settlement lets Plaintiff apply for costs and fees. The trial court awards costs but denies fees. Plaintiff files a notice of appeal from the order denying fees. As a jurisdictional grounds, Plaintiff cites Code of Civil Procedure § 904.1(a)(2), which permits an appeal of an order entered after an appealable final judgment. Ordinarily, that’s the provision that applies to fee award appeals, because ordinarily, fees are litigated post-judgment, and then added to the judgement post-entry as part of a cost award. See R. Ct. 3.1700(b)(4), 3.1702. You wind up with two appealable orders, which then generally get consolidated on appeal.
But here, because of the settlement, no judgment had entered. There was just a fee order, which is not, in itself appealable. And if it’s not entered after judgment, it’s not appealable under § 904.1(a)(2). After the case was fully briefed, the Court of Appeal pointed that out. In response, Plaintiff tried to argue that, in reality, her appeal was actually from a judgment of dismissal, which had been entered by the court nine months after the denial of the fee award, and indeed, two months after she filed her opening brief in the appeal. Relying on some cases that interpret Rule of Court 8.104(d)(1) and (2)—which permit the court to deem certain premature notices of appeal filed as of the date of entry of judgment—Plaintiff argues that her case should be treated as an appeal from the dismissal.
But the Court of Appeal isn’t having it. This case is not a mine-run 8.104(d) case where someone appeals an order entered slightly before the entry of a formal judgment on it. Indeed, the Court views Plaintiff’s statement of jurisdiction to be misleading, as it did not even try to explain the basic fact that no judgment had been entered. Nor did Plaintiff explain how or why she made a mistake. Nor did she augment the record when the judgment of dismissal was entered by the trial court. It was not until the Court pointed out the flaw that she tried to come up with a post-hoc rationale for appealabilty. That is not good enough.
Appeal dismissed.
And there, yet again, is the #1 lesson about appellate practice that every trial court practitioner needs to know. It might not seem very significant that, after the court or a jury has actually decided everything on the merits, the judge still needs to sign a one sheet that just reiterates the final terms of victory or defeat. But the entry and timing of a judgment are of acts of monumental procedural importance. A judgment entered too early, or too late, or not at all, can cause enormous, unforeseeable, and often irreparable problems in post-trial motions or on appeal. And because these problems often manifest long after the case is no longer the trial court’s problem, the nuances can be lost on the trial judge and his or her clerk too. So, when the time comes, you need to pay incredibly close attention to the entry of judgment and intervene if and when necessary to keep things on the right track.