In fight over short-term rentals, City could not challenge contempt fees either as an appeal or writ

Like many cities with neighborhoods unhappy with short-term rentals, Rancho Mirage issued a ban on the practice. In this suit by a group of short-term rental owners, Vacation Rental Owners & Neighbors of Rancho Mirage v. City of Rancho Mirage (D4d2 Dec. 15, 2023 No. E078784) [nonpub. opn.], the trial court issued a preliminary injunction and, when the city failed to comply, hit the city with attorneys' fees.

The city, represented by experienced appellate specialists, knew there is no direct appeal from a contempt order, so they filed a writ petition. As for the fee award, there is a good argument, supported indirectly by published cases, that it is directly appealable. But just to be safe, the city took a writ on that, too. The Court of Appeal summarily denied both writ petitions. So the fees issue went forward.

But in a surprising opinion, the Court of Appeal dismissed the fee appeal and nonappealable. The city set up some good arguments, but the court knocked them all down:

1. A post-contempt fee award is appealable under CCP § 904.1(a)(1) as a judgment. That is supported by Rickley v. Goodfriend (2012) 207 Cal.App.4th 1528. But the court distinguished Rickley because the contempt in that case came after the judgment. (Why that ought to matter is not explained, and no good explanation comes to mind given contempt is regarded as an original special proceeding collateral from the main case. So rejecting an appeal because it was filed before a judgment in what is effectively a different proceeding is likely rejecting an appeal on the ground that we don’t accept appeals filed on a Tuesday. That is to say, the ruling here seems arbitrary.)
2. How about CCP § 904.1(a)(2), as an order after a judgment? After all, the court reasoned that that was how the Rickley decision is best understood. Sorry, the court reasoned, neither a contempt order nor a preliminary injunction is a judgment, so the fee order that followed is not an order after a judgment.
3. How about a collateral order? A contempt is a special proceeding, collateral to the main action. The fee award was final, leaving nothing remaining but enforcement. And it requires the payment of money. All the boxes are checked. And L.A. Times v. Alameda Corridor Transp. Auth. (2001) 88 Cal.App.4th 1381 seems to support that as long as the legislature doesn’t indicate an intent that fee awards following statutory proceedings (there, a Public Records Act proceeding), then the fee award should be appealable. Well, it’s true you should have some opportunity to get review, the court reasoned, but we gave you an opportunity: we read your writ petition, and summarily denied it.

Comment

I found this opinion surprising for three reasons.

First, while litigants held in contempt tend to cut an unsympathetic figure on appeal, the contemnor here is a city. Cities don’t always win, of course, but when they are represented by excellent counsel as here, they tend at least to get a better explanation than offered here.

Second, I thought this remark rather glib, responding to the city’s point that it had no other means of appellate review: “The order was already subject to appellate review. The city filed a petition for writ of mandate challenging the award, and we summarily denied the petition.” In this case where appealability was open to doubt, there is not even any assurance that the writ was not denied because the writ panel saw that it was docketed as a direct appeal and saw no need to review on a writ basis.

Third, the attorneys' fees order here fits the definition of an appealable collateral order as neatly as anything could. Yet there is not a whisper of it in the opinion. I cannot imagine the city’s counsel did not argue the collateral order doctrine. I have seen the Court of Appeal simply ignore arguments why it should dismiss an appeal. Here, the court ignored an argument why it should not dismiss. I would like to have been a fly on the wall of the conference in this one.