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 the tentative. I have always taken this as a slip of tongue of no real consequence.
Do not be misled: there is a consequence. "Stipulating" to a tentative acquiesces in it, waiving further arguments against it. "Submitting" on a tentative is neutral, and is not a waiver.
So observed the Fourth Appellate district, Division One in Lave v. Charter Commc'ns, LLC (Cal. Ct. App. Dec. 21, 2020) No. D076206. After prevailing in on a wrongful termination and FEHA case, plaintiff sought attorney fees of $532,000, doubled to over $1 million based on a lodestar calculation.
In its tentative ruling, the trial court refused to apply a lodestar, and reduced the attorneys' hourly rates, and awarded $400,000. At the hearing, plaintiff's counsel stated he would "stipulate to the tentative" and made no further argument.
On appeal, plaintiff argued the trial court made a mathematical error in computing the total award.
The Fourth District held plaintiff had forfeited the issue by not raising it in the trial court, emphasizing counsel's "stipulation" to the tentative ruling. The court cited Mundy v. Lenc (2012) 203 Cal.App.4th 1401, 1406, in which the Second District rejected a similar claim of forfeiture when the appellant had "submitted" on a tentative. That is different, because “[s]ubmission on a tentative ruling is neutral; it conveys neither agreement nor disagreement with the analysis,” and appellant's arguments had been preserved in the briefing below.
In Lave, however, appellant had "acquiesce[d] in the order by stipulating to the tentative."
The Court also notes that the trial court need not provide a mathematical analysis, or any analysis at all, in support of a fee award. But had the trial court committed a mathematical error over appellant's duly-raised objection, it would have been reversible. "Stipulating" to the tentative and not raising the computation objection lost the appeal here.
Tim Kowal helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes a newsletter of appellate tips for trial attorneys at www.tvalaw.com/articles. Contact Tim at [email protected] or (714) 641-1232.
