New Judgment Adding Fees Does Not Restart the Clock

Hjelm v. Prometheus Real Estate Grp., No. A142723 (D1d2 Oct. 5, 2016)

Plaintiffs’ apartment became infested with bedbugs. They sued their Landlord and won before a jury. Plaintiffs also obtained an attorney’s fee award because their lease included an fee provision, albeit one that purportedly only permitted the landlord to recover. But such a provision is made bilateral by operation of Civil Code § 1717. Ultimately the damages award was about $72k with the fee award almost five times that. 

The appeal raises a threshold issue about whether the merits judgment is timely. Landlord had filed a new trial motion, which generally stays the ordinary (sixty days from notice of judgment) time to appeal under Rule of Court 8.108. The new trial motion was denied by minute order on the same day the court granted Plaintiffs’ fee award motion. (Because fees awardable by contract are treated as costs, they are generally assessed through a post-judgment cost bill.) Two weeks later, the court signed off on the proposed order denying the new trial motion. It also entered a revised judgment that incorporated the fee award.

The rub is that Landlord filed its notice of appeal forty-two days after the date on which the court formally denied the new trial motion and entered the revised judgment. Rule 8.104 says you get sixty days to appeal after proper notice of entry of judgment. And 8.108 extends that limit until thirty days from a proper notice of the denial of a new trial motion. So the question is, did the entry of the revised judgment restart the sixty day clock for any appeal of the whole judgment, or just the part of the revised judgment that was actually revised—i.e., the fee award.

For reasons I haven’t done the research to understand, California procedure favors treating an appeal of a judgment separately from a an appeal of a costs or fee award, which generally gets entered post-judgment. Usually this results in two noticed appeals, which ultimately get consolidated somewhere during briefing. But the upshot of the rule is that the court’s amending a judgment just to add a costs and fees award does not restart the clock to file a notice of appeal on the merits. So long as the merits judgment isn’t substantially changed, the time to appeal—as appropriately extended by postjudgment motions—runs from the original entry.

Which means that Landlord's time to appeal the merits wan not based on entry of the new judgment. Although the clock ran from the same day, it was based on the denial of Landlord's new trial motion, which has a thiry day clock. And since forty-two is more than thirty, Landlord’s merits appeal isn’t timely.

And even if it were, the court would have found it defaulted anyway because Landlord’s appellant’s brief is too slanted in describing the facts. Indeed, it entirely failed to discuss key evidence favorable to Plaintiffs. An AOB isn’t just a redo of a closing argument. On appeal, a factfinder has already made findings against the appellant. Those are entitled to pretty substantial deference. So rearguing your best version of the evidence, while ignoring the adverse stuff, is not helpful to deciding the case under the appropriate standard of review. Recognizing that, Rule 8.204 and related caselaw make pretty clear that an appellant needs to fairly present the while factual record, A failure to do so risks a default. Which is what the court would have done here, were Landlord’s merits appeal not dismissible for being too late anyway.

So far as the fee award—the separate appeal of which is timely—the lease contained provisions requiring plaintiffs to indemnify Landlord for any expenses (including attorney’s fees) incurred as a result of Plaintiffs’ fault. Section 1717 makes those provisions apply to Landlord as a matter of law. I.e., if Plaintiffs won a judgment based on Landlord’s fault, they too get fees.

Landlord’s challenges to the amount of fees also fail. The Lodestar calculation was proper and well within the discretion of the trial court. Nor was apportionment between Plaintiffs tort and contract claims required, because the claims were inextricably intertwined.

On a related note, the court did not err in refusing to use a special verdict form that required the jury to apportion damages between tort and contract causes of action. That’s a matter generally left within the trial court’s discretion. And that discretion wasn’t abused by the trial court’s failure to put the jury to the difficult if not impossible task of apportioning damages between different legal theories.

Affirmed.