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California Appellate Law Podcast - Jeff Lewis

What You Need to Know about Fee-and-Costs Awards on Appeal

Tim Kowal     February 14, 2023

The issue that most often drags appeals back into more litigation is attorney fee and costs. What happens when, while focusing on the appeal, the prevailing party gets a substantial award of fees and costs?

  • Do you have to separately appeal from the fees and costs award? (Yes…usually.)
  • How can you stay enforcement of the fees and costs award? (Fee & cost awards are stayed automatically…sometimes.)
  • If you win the underlying appeal, what happens to the fees and costs award? (It goes away automatically…in theory.)

We discuss these questions and more in this nuts-and-bolts episode of the California Appellate Law Podcast.

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Transcript:

Announcer  0:03 
Welcome to the California appellate podcast, a discussion of timely trial tips and the latest cases and news coming from the California Court of Appeal, and the California Supreme Court. And now your hosts, Tim Kowal and Jeff Lewis. Welcome, everyone. I am Jeff Lewis.

Tim Kowal  0:18 

And I'm Tim Kowal. Both Jeff and I are certified appellate law specialists and uncertified podcast hosts, we try to bring our audience trial and appellate attorneys some news and insights they can use each week in their practice. So so if you find this podcast helpful, please subscribe and recommend it to a colleague. And if you don't find it helpful, send it along to opposing counsel. Yeah, if you

Jeff Lewis  0:39 

lose a ruling, send it to your judge overseeing your case. And a quick announcement. This podcast is sponsored by casetext. casetext is a legal research tool that harnesses AI and a lightning fast interface to help lawyers find case authority fast. I've been a subscriber to casetext since 2019, and I highly endorse their service and listeners of our podcasts will receive a 25% lifetime discount available if they sign up at casetext.com/calp. That's casetext.com/calp.

Tim Kowal  1:03 
And then here's just a hot referral for case text. We were just talking before we hit the record button, Jeff about this question that we're going to talk about today. And it has have cases settled this and I've looked up on haystacks, and you looked up on case takes if we couldn't find an answer, we know that it must not It must be an open issue.

Jeff Lewis  1:19 
Well, more importantly, neither of us took the 35 minutes it takes to log into Westlaw to get Westlaw you know, pass the sign in and the authentication to, you know, case text, you just log in and get rolling with your question.

Tim Kowal  1:30 
That was I was pretty much sold on case text when I could log in in less than three seconds. So that was that is a big selling point. Well, so Jeff, we decided we wanted to talk about today an issue that comes up a lot in both of our practices, the issue that most often drags my appeals back into the litigation world is the issue of attorney fees and costs. So let me paint a quick picture of a common scenario, Jeff. So say the trial has not gone your way. And you're, you're getting geared up for the appeal. But while you're focusing on getting ready for the appeal, the prevailing party gets a substantial award of fees and costs. And so now you have a new set of problems, like do I have to separately appeal from this award of fees and costs? And how can I stay enforcement of the fees and costs award? Are they going to come after me to start, you know, execution liens on the fees and costs award? If I win my appeal, you know, hopefully knock on wood, I'm going to win this appeal. It's a righteous appeal. Does that make the the fees and cost award go away automatically? Can Can I just ignore the fees and costs and hope that I'm going to win that the underlying appeal of the judgment? So Jeff, I thought we just start out by asking to kind of go go through a lot of these questions, see if we can answer them for our listeners. So first question, conceptually, is when do you have to appeal that award of fees and costs? Do you appeal it as soon as the minute order comes down? Or do you wait for that signed formal, pretty looking formal order or wait for it to be added to the judgment?

Jeff Lewis  2:51 
Right? Yeah, and so many judges have different practices about doing an amended judgment where they insert costs and attorneys fees later in a blank or a brand new judgment, or just let the clerk's enter costs and fees on the judgment on the clerk's roll. I have to tell you, Tim, there are many areas of appellate procedure where I can rattle off my head 60 days where Notice of Appeal counter designation rules. This is an area in terms of appealing attorneys fee awards that 100% of the time, I always go to the rudder group, because there's lots of traps for the unwary here.

Tim Kowal  3:20 

Yeah, that's going to the rudder guide. As always sound move also calling the co host of the California appellate podcast would be a sound move.

Jeff Lewis  3:28 
You're too busy and too expensive for me to rely on. But yeah, thank you for the offer.

Tim Kowal  3:32 
I think we covered a case on this. The answer to the question is that you have to appeal from the minute order that minute order awarding fees is the appealable post judgment order under CCP nine Oh 4.1 A two. And if you wait, if you sit around and wait thinking that the court is going to sign a formal order or amend the judgment, the court may well do that. But that does not restart your time to appeal. And we had covered that before we'll post a link to this in the show notes li Liang vs. She this was a non published opinion. But that exact issue came up the appellant waited, figuring well, I'll get the judgment amended or I'll get a formal order. And by that time too late appeal from the minute order was untimely at that point right below the minute order awarding fee. So be careful about waiting around as soon as you get that minute order. It doesn't have to be signed or formal that minute order awarding fees and costs is the appealable order. All right. And also be careful about trying to amend the judgments generally, not only don't wait around for it, but be careful when you ask the judge to amend the judgment. We covered this also I'll post a link to that in the show notes. The amendments to a judgment during the appeal was reversed that no that's not the one I'm thinking about. Oh, the Court of Appeal didn't like it when the trial court amended the judgment because it created what the Court of Appeal called a quote procedural mess.

Jeff Lewis  4:48

Yeah. Well, I mean, let's be clear. If there is an appeal of the merits of a case and then there's a field award, the trial court can always amend the judgment to add the fees and costs with the trial court's can never do is if there's an appeal of the merits and an appeal of the fees and costs at that point, the trial court can't be messing around by amending or interlinear ating old judgments

Tim Kowal  5:10 
right now the court can, you know, right in the number if the original judgment had said that the prevailing party is entitled to fees and costs of blank, then the clerk can enter Lynnie eight, the the number there, but in this other case, that will link in the show notes. There was a finding of prevailing party that was changed, and that was amended in the judgment. And that was a big nono. Yeah, for sure. 100%. Okay, so now we know when to appeal from the award of fees or costs. Now, the next question is, are the costs and fees award automatically stayed on appeal? And the short answer to that sometimes deceptive answer is yes. Awards solely for fees or costs are automatically stayed on appeal without the need to post a bond

Jeff Lewis  5:54 
routine costs not involving an anti slap motion.

Tim Kowal  5:57
Okay, put a bookmark on that, Jeff, we're gonna get that reprise our argument on that in a moment. But you have you want to also talk about just do a quick city bus tour on stage and bonds of the money judgment.

Jeff Lewis  6:10
First question client asked me or should ask me or trial lawyer asked me or should ask me is can this be executed on pending appeal in terms of either the costs or the damages and costs. Normally, our state fees normally are stayed in a non slap context as to the damages. It's not state that the plaintiff can execute pending appeal. And so the things that I go over with clients are one don't forget about the discretionary requests for a stay the trial court, sometimes trial judges feel strongly their decisions are right, and sometimes they're like now on the fence go up to the Court of Appeal, and they might be receptive to a motion for discretionary stay of execution pending appeal

Tim Kowal  6:49 
that discretionary stay. Are you referring to CCP 918 That provides that that temporary discretionary stay

Jeff Lewis  6:57
correct for a limited duration of time? And then for a longer term? Are we supposed to bond? And the question is how much that has to get posted? And what's it going to cost the client? And in terms of how much she usually one and a half times the amount of the judgment? That's the bond amount? And how much does that bond? Usually client? What depends on the client, you know, I've represented fortune 200 companies on appeal where the bond amount is very small, but very, in terms of the premium the cost to issue that bond, because the bond company surely thinks is a very small risk. On the other hand, Tim, if you need to post a bond, you might be more of a risk than a fortune 200 company that might be a higher premium. That's my experience. But generally, what's your experience?

Tim Kowal  7:35 
My experience, I typically use CSBA, the court surety bond agency and they're usually across the board, their premium rate is 1% per year 1% of the face amount of the bond with the first year's premium being payable upfront.

Jeff Lewis  7:50
I'm really is that regardless of the financial viability of the appellant just straight up 1%.

Tim Kowal  7:55 

That seems to be flat. I haven't seen any deviation in my experience. All right. And then

Jeff Lewis  7:59 

yeah, you pointed out in our show notes that you always have to have a conversation with the client or trial counsel that yeah, you could state this judgment, but it'll be earning 10%, pending to three years of the appeal of what the client wants to write a bigger check at the end of the process,

Tim Kowal  8:13 
always important to remind the client of that early and often because sometimes they will lose sight of that, and months and months go by, and then they're reminded that Oh, my God, I've got you know, this is a seven figure judgment that we're appealing. Suddenly he's got six figures and interest it's already accrued after the first year of the appellate process.

Jeff Lewis  8:31 
And then finally, you know, we've covered this on earlier episodes of our podcast, there is a process to either personally pledge or have others guarantee offer personal guarantees in lieu of a formal bond from a surety rarely used, but we've come across it one or two times in our in our joint cases, right?

Tim Kowal  8:47 

The discussion is too interesting not to bring it up. But I have not ever found any takers yet. That is, if you're ever interested in the concept of a personal surety contact Jeff for me about that we happy to talk about All right, so we've started this conversation about bonds and stays of enforcement of judgment, Jeff by talking about judgments purely for fees or costs. And then we talked about judgments for money judgments, and how to get stays of those. But what if there is an outstanding money judgment? And then there's also fees and costs added to it is the cost award automatically stayed pending the appeal? How do we think about that problem, Jeff?

Jeff Lewis  9:24 
Well, this is your domain, that clueless case in terms of the impact of paying the money judgment, and leaving only the costs or attorney's fees as the unpaid portion. Um, there's some strategy involved here.

Tim Kowal  9:36 
Yeah, yeah, the strategy usually is if the client has not already found a way to bond and stay the underlying money portion of the judgment, then the added costs and fees become part of the principal amount for purposes of determining what the bond amount would be. But the strategy that you raise is, well, what if the underlying money judgment could be paid? What if it's a relatively small amount you got one of those inverted Awards where the underlying money The judgment is fairly small, but the costs and fees are very large. And you could think about simply paying the underlying judgment amount, and then you're left only with the award of costs and fees, which may be subject to the automatic rule of an automatic stay. Now, there's another possible wrinkle there and I have been confronted with this argument, Jeff, that okay, the underlying judgment amount is paid, leaving only the cost and fees amount, which would be subject to the automatic stay rule. But can you go forward and still appeal from the under underlying judgment? So you've paid the underlying judgment, but you still want to challenge it on appeal. And you also want to appeal of the costs and fees and enjoy the automatic stay rule of the costs and fees? Does that work out? Because I've been confronted with this argument that no, the you can only as long as the judgment is being appealed from the cost and fees become part of that judgment. So you would still have to bond it in the amount of 150% of admitted surety bond?

Jeff Lewis  10:53 
I think it's a solid argument. Candidly, I've never litigated the payment of judgment question. You know, one thing you always have to be aware of when you're talking about paying part or all of the judgment is the issue of waiver. If you simply write a check without duress without a debtors exam being noticed without wages being garnished, there are some arguments that maybe one or more issues on appeal might be waived. So you want to have a good record that you're paying under duress as opposed to conceding the liability pending appeal.

Tim Kowal  11:19 
Right. Yeah, that is an important concern about you know, not when you pay off that judgment amount, you want to make sure it doesn't lead to a waiver or forfeiture argument. All right. Here's another related question about the let's say that you have one of these inverted situations where you've got a relatively small judgment of you got a huge costs and fees award, and you really want to get that stayed and you'd like to enjoy the automatic stay role, but whether you can get it automatically state or maybe you're even willing to post a bond for it, if you feel that's necessary. What happens if the fee award is pretty defensible, you know that it's well, within the trial judge's discretion, you don't really have a good ground to attack it on appeal. You don't want to file a frivolous appeal, but there's but absent an appeal, there's no way to get a stay of enforcement. What do you do there, Jeff?

Jeff Lewis  12:01 
Yeah, that's a tough one, you might have to call your ethics hotline, because I'm always of the mind. You cannot appeal a fee award. If you don't have a good faith argument. For example, if you don't have a court reporters transcript, and you don't know what was said during that hearing, and there's not some clear legal heir simply filing an appeal to delay payment or otherwise, it's a problematic area.

Tim Kowal  12:22 
Here's one possible way out, Jeff, and this reminder to our listeners of the case that we talked about some episodes back, and we'll include a link to that the case offhand. But it was the case that pointed out that there is a problem with the Judicial Council memo of cost form. You remember that what that problem is, Jeff?

Jeff Lewis  12:39 
Yeah, yeah. It's that there's no signature line. And under penalty of perjury, there's just a council signature line without the statement that it's under penalty of perjury, and I think we it was raised in an unpublished decision that perhaps that's a problem.

Tim Kowal  12:52 

Yeah, it was actually a published decision. And the decision said, Well, it's close enough that that was the the majority of the panel but the there was a dissenting opinion that said, No, it's not good enough. The memo of cost is what makes the prevailing party's initial burden of proof to shift the burden over to the opposing party to produce evidence to show that the costs were not actually incurred or not available. And without that initial burden, having been shown the memo, of course has to fail on its face for lack of verification under penalty of perjury. So that is an issue that if you're the prevailing party, in your case, has made use of the judicial council form a memo of costs and sign that without some other declaration, under penalty of perjury, you may have a good ground to challenge that entire memo of costs as failing the rule that has to be verified under penalty of perjury.

Jeff Lewis  13:38 
I rule that that argument is colorable. I think

Tim Kowal  13:42 

so if you've got a sitting Court of Appeal justice, who has written a dissenting opinion, a very lengthy does a deep dive into the statutory legislative history on what is required in a verification. So I think that's a defensible argument. I have to say that because I have adopted that argument in one of my appeals. Okay. Okay. So now, a few moments ago, Jeff, we put a bookmark on this question of whether all fees and costs are automatic subjected to the automatic stay of Enforcement Rule, and you made a reference that only non routine costs. What did you mean by that Jeff, only non routine costs are automatically stayed on appeal?

Jeff Lewis  14:20 
Well, first of all, you call it a question. It's more of an issue of settled law that the spirit and legislative intent of the anti slap statute means that feel words are words of fees and costs pursuant to link the defendant in an anti slap case, those types of awards are considered a non routine award of costs, and that plus the legislative intent behind the anti slap law has been construed by the courts. To me these fee awards are simply not stayed pending appeal or not automatically stayed

Tim Kowal  14:50 
well, and you have case law to support that. That's the Dowling versus Zimmerman case. You'll see that in all of Jeff's fee motions, but the legislature has abrogated this routine versus non routine distinction way back and it's amendment in 1993. And that amendment left all costs subject to the automatic stay rule except for the three categories of costs defined by statute, and those do not include anti slap fees. So Dalling, it seems, did not catch the drift of that amendment. But the quails versus parent court of appeal decision in from 2017 noticed that something was amiss and reasoned that quote, nearly all post judgment awards of costs in California courts should be subject to the automatic stay. So we did have you and I discussed this and Bandy this about back in episode 47. And I published article on this last year in the California litigation magazine, we'll include links to those in the show notes.

Jeff Lewis  15:43 
Tim, publishing that article in litigation magazine does not make your argument strong. But congratulations. So I had an interesting stump Tim question or some jump question about sometimes trial courts will award fees, not to the defendant in an anti slap case, not to the person who brought the anti slap sometimes a trial court will find that an anti slap motion is frivolous and award attorneys fees to the party, the plaintiff, usually who had to oppose an anti slap motion, and one of my arguments about why there's no stay of fee awards normally for when a defendant prevails and gives a case dismissed is there's a policy interest of making an anti slap defendant hole and getting him out of the case as quick as possible. When a plaintiff successfully with stance and anti slap motion, it gets fees because the motion was frivolous? I'm not sure those same policy interests are implicated. And I wonder what would happen if somebody tried to enforce those fees pending appeal, those fees would be considered stayed pending appeal. What do you think, Tim?

Tim Kowal  16:49 

Right. So you're talking about normally when we're dealing when you're dealing with anti slap fees, it's the prevailing defendant who's prevailed on the anti slap motion gets awarded his or her fees every now and then a defendant files a meritless anti slap motion and the plaintiff is entitled to fees if the court finds that the anti slap motion was brought not in good faith, and under my coils case, the answer would be easy that all fees, including slap fees are considered to be cost that are automatically stayed pending appeal. But then I suppose that it's possible that fees against the defendant in this situation, the defendant who's brought a bad faith slap motion, might that be considered a sanction? And if it's an award of sanctions or awards of sanctions, and this is a stump Jeff, question back to you, Jeff. Our award monetary sanctions awards automatically stayed on appeal, are they considered attorneys fees? Or are they? Are they more like money judgments?

Jeff Lewis  17:44 

Well, let me say on the first question, your instinct is right, there have been a number of cases construing sanction awards to plaintiffs where the courts have analogize or relied on one 20.5 Or one 20.7, the sanction statutes or procedure on how to proceed with these V requests. And so it is not a stretch to think that a award to a plaintiff in an anti slap case for filing or having to oppose a frivolous slap motion, that that's really a sanction, not so much a an award of non routine costs within the meaning of dowelling.

Tim Kowal  18:17 
Yeah, that's a space to watch, because I have not seen those issues taken up. So there's an arguable question of whether those fees awarded to the successful plaintiff who successfully defends a bad faith slap motion and gets fees for it. Is that a sanction award? Or is it an attorney's fees award? And then even if it's a sanction award, I don't know the answer to whether sanctions award are automatically stayed on appeal.

Jeff Lewis  18:39 
My gut tells me it is not automatically stayed because the statutes and cases talking about the automatic stay referred to attorneys fees and costs, sanctions are more sometimes the trial courts impose sanctions amounts that have nothing to do with attorneys fees and costs. And so my gut tells me those are not automatically state but I will say this anecdotally, in my experience, when a notice of appeal is filed properly from a sanctions order in the proper form by the proper party, in anecdotally, Trial Courts will often stay enforcement pending resolution of the appeal. Although remember,

Tim Kowal  19:10 

under CCP 918, the trial courts discretion to stay enforcement is limited to only up to 10 days after the notice of appeal could have been filed. So it's a relatively short stay. It's not going to last you the duration of the appeal.

Jeff Lewis  19:25 

I'm going to tell you this, I can't remember ever handling an appeal of a sanctions award like this where the trial court did not say either it's part of the sanctions award or in a subsequent minute order. Yeah, well, it's a state pending appeal. But that's just my anecdotal experience.

Tim Kowal  19:39 
Yeah. Interesting. I wonder if there's a different way you have to structure the court would have to structure the sanctions award to make it not payable for a certain amount of time. Or you could say I guess the court could say it's not payable until after an appeal.

Jeff Lewis  19:51
Well, and then I suppose the other side could try the prevailing party could try to enforce and then go up to the Court of Appeal on supersedeas or other grounds to try to get it stayed.

Tim Kowal  19:59 
Yeah. Yeah, that's true. Okay, well, let's jump to our next topic, Jeff. So now we're gonna fast forward, let's say, because we've we've covered when you have to peel from the costs, the costs or fees award, and we've covered how to get them stayed pending the appeal. So now let's fast forward and say you've reversed the underlying judgment. So great news. But what happens to your appeal of the fees? Do you still have to go and litigate the fee award, Jeff, or Yeah, or is it automatically reverse? Because the premise for the fee and cost award was the judgment that the judgments gone away, then the fee and cost award has to go away to?

Jeff Lewis  20:31 
Yeah, like magic disappears? Yeah, yeah, it

Tim Kowal  20:34 
was covered in the Dr. Louisville case that we talked about last year. This was mid Wilshire property versus Dr. Louisville. And it was really interesting what happened here, because the appellants had reversed the judgment, the briefing had not even begun on the fee appeal of almost half a million dollars. So the parties were able to get together. And they jointly stipulated to request summary reversal of the fee Award and the court went along with it. So that may be a strategy because once you're up on appeal with the fee award, the trial court obviously can't vacate it, because the trial court has no jurisdiction over the fee award when it's up in the Court of Appeal. And I think the appellant was a little bit too weak in the knees to dismiss the VA appeal, because I don't know the the upshot of that does that wind up leaving it affirmed on the merits?

Jeff Lewis  21:20 

Right. Yeah, that's great. I've never litigated that. It's a great question.

Tim Kowal  21:24 
So I think you would need the Court of Appeals intervention. So if you think about it before you get to that point, and you are you're briefing, oral arguing the underlying judgment, and you know, you've still got a fee appeal kicking around there, you might remind the Court of Appeal that hey, by the way, if you do decide to reverse, you might just go ahead and dispose of the fee appeal as well, summarily, because it automatically goes away, because the premise for it has will will disappear when the judgments vacated.

Jeff Lewis  21:51 
Yeah, yeah. And here's ethics corner laundry for you, Tim, a new segment on the show called ethics corner. Suppose you have an issue where there's either contingency case where Tim, you've received a big fee award, let's say on a slab or other contingency matter, and the fees, the client never paid any fees. So the fees go in your pocket, and then the other side appeals, and there's a risk that the case might be reversed, and that the client would have to disgorge those fees to the other side. And the client at that point in time wouldn't have those fees in his pocket, they'd be in your pocket. Tim, I wonder when you've taken a feel Ward on a contingency case, the fees are in your pocket, and there's some sort of risk disgorgement and maybe payment of interest upon that discouragement. If there are duties of disclosure and conflict waiver at the outset of the appeal where you tell the client if there's an appeal, here's what's going to happen to the money in Tim's pocket.

Tim Kowal  22:42 
Oh, yeah, I think that's a great quandary. I would I think that's all the more reason not to take a penny until that judgment is final, final final. If there's still an appeal pending and it's that award, any monies collected or enforced on that money judgment are subject to discouragement. If the judgment is reversed on appeal. Well, don't take

Jeff Lewis  23:00 
a penny unless you have a contract. You've died at dotted the I's cross the T's independent counsel, yada yada in terms of the client understands exactly who's going to do what if there's a reversal?

Tim Kowal  23:10 
True? Yeah, that's a great puzzle to work through. Yeah, I would probably keep it in my client trust account. Yeah, I think there was another chapter of The Doctor Leavell saga where something similar happened, there was a substantial amount collected during the appeal, and then it was reversed, judgment was reversed. And then there was a restitution award under Code of Civil Procedure 918, which as you would interest, as you pointed out with interest. Yeah, it's just like a regular judgment. Just go in the other direction.

Jeff Lewis  23:36 
Yeah. Wow. Well, reversal fortune.

Tim Kowal  23:39 
All right. Well, I thought that we end this discussion about fees and costs award with a brief discussion about enforcement of fees. So this is separate from appellate fees. If you have lost your appeal, and the respondent had aggressively enforced the judgment, consider paying the entire judgment amount, plus interest fees and costs immediately and in cash, because here's where this can come up, Jeff, so you've taken this judgment up on appeal, and this time you've lost okay, it was not successful. But in the meantime, the other side has been just going gangbusters trying to enforce that judgment. So you know, they're going to be filing a motion for to recover their enforcement fees as soon as remitted or issue as soon as they get back to the trial court. Do they have to wait until remittitur issues for that? Jeff? I don't know that they do is enforcement collateral proceeding? Oh,

Jeff Lewis  24:26 

no. Right. Just enforcement? No,

Tim Kowal  24:28 
they don't have to. Yeah, but they might as a practical matter, wait until they get back and then they'll file their motion for appellate fees at the same time, and they'll file their motion for enforcement fees. So if you know that, okay, a big fat motion for enforcement fees is coming down the pike and I know I've lost on my appeal, go ahead and just pay off the entire judgment amount against you. You're gonna have to do it anyway. And if you pay it before, if you beat him to the court, if you pay it off before they filed their motion for enforcement fees, it cuts off the right to enforcement fees and the case on point is Supreme Court case can conservatorship of McQueen from 2014, the plaintiff, there prevailed in a suit for financial elder abuse, which was affirmed on appeal. But while the appeal is pending, the plaintiff incurred an enormous amount of fees to enforce the judgment, including filing a whole separate action for fraudulent transfer just 10 days before the plaintiff moved for some $300,000. In enforcement fees, the defendant went ahead and paid the entire underlying judgment amount, including all post judgment interest,

Jeff Lewis  25:27 
but what's the story with it having to be in cash? Can you be presented or tendered with just an ordinary vanilla check or a certified cashier's check?

Tim Kowal  25:35
No, it has to be in cash because I forget what the statutory mechanism is there, but it has to be satisfied in full and satisfaction is not deemed to have occurred until the check clears basically, so the the judgment creditor has to have deposited it, it has to clear a wire transfer seems like it might be the equivalent of cash, but I don't know that. But the MacQueen court specifically lays out here that that it would have to be a cash payment if you wanted to enforce this statutory rule.

Jeff Lewis  26:02 
So if a savvy creditor got a check, and then realize what the other side was doing, could the savvy lawyer creditors layer sit on that check file a motion for additional enforcement costs? And then while that motion is pending, then cash the check or wait till the hearing is held on the motion? And then cash the check?

Tim Kowal  26:19 

Yes, yes, you could sit on the check. I don't know how long you could sit on the check and refuse to acknowledge satisfaction of judgment before you could get into trouble. That seems like an ethical problem to just refuse for an unreasonable amount of time to acknowledge satisfaction. But here was the kind of the money quote from the Supreme Court. On this point. The court says conceivably, a judgment debtor could satisfy the judgment by tendering cash for the full outstanding amount with interest before the creditor has sought his or her enforcement costs and fees, though this is likely to be rarity for sizable judgments. If the creditor has reason to believe that cash may be imminently tendered to pay the judgment prudence counsels filing a motion or memorandum for costs and fees accumulated to that point. If the judgment is not then satisfied, any costs or fees accruing later may be sought in a supplemental motion or memorandum. In any event, the possibility that some widely judgment debtor make a cash payment timed to foreclose, a final motion for costs and fees does not provide this court authorization to ignore the explicit unambiguous language of section 680 5.080 under the enforcement of judgments law and substitute a quote unquote reasonable time rule of our own invention and quote, so the court says we're driven by statute here, the motion for enforcement fees has to be filed before the judgment is satisfied. And if it satisfied, then sorry, you may have justly accrued, in this case, $300,000 or more in enforcement fees, but they all go away. If you don't file that motion before the Judgment satisfied, but to satisfy it, it has to be cold, hard cash.

Jeff Lewis  28:00 
All right. We were going to be talking about attorneys fees and costs. Today. There's a recent California Supreme Court case I wanted to chat about briefly, you just discussed a case where the courts stuck to the words of a statute, and so they were bound by those words. I'm going to talk about an instance where maybe the clear words in the statute were not considered or stuck to this is Travis V brand, a case from my neck of the woods arising from a political dispute. in Redondo Beach, there was a lawsuit brought under the public the Political Reform Act, and the issue that went up on appeal was issue almost $900,000 in attorneys fees and trial court awarded in favor of the defendant against the plaintiff. Now, the California Supreme Court overturned that fee award because the trial court didn't make a finding that lawsuit was frivolous, that had been prosecuted in bad faith or continued in bad faith. There are lots of public interest statutes that talk about asymmetrical V or standards where one side has a higher burden of proof than the other to get fee awards. I'm thinking about Public Records Act and the Brown Act, where if a member of the public sues the city of a public agency, if the plaintiff wins, they get their fees no matter what if the city wins, the public agency wins. They only get the awards if there's a finding of bad faith. Now,

Tim Kowal  29:16 

it turns out bad faith finding is not statutory. That was something that the Supreme Court imposed here.

Jeff Lewis  29:21 

So what I'm just saying is, yeah, it's that I just talked about Public Records Act and Brown Act. It is explicit in the statute. It is not explicit in the Political Reform Act. Nice. And so the trial court just said, well, defendant one, no finding a bad faith and order them nearly $900,000 in attorneys fees, the California Supreme Court reversed and remanded for determination, but not saying you can't get these just a determination by a lower court as to whether or not there was a frivolous lawsuit here before these could be awarded.

Tim Kowal  29:49 

Yeah, that's interesting. I I like where the court is going with that. It seems like that would that's something that that would appropriate, an appropriate asymmetrical amendment to the statute, but is that appropriate for the Supreme Court? board to be imposing that into this statute where the statute is silent on it.

Jeff Lewis  30:04 
I'm a big fan of public interest lawsuits like actions under the Public Political Reform Act, and you don't ever want anything that's going to chill plaintiffs from sure filing such suits, but it's an odd result. I'll tell you another oddity. I don't do a whole lot of California Supreme Court work. The California Supreme Court remanded this to the Court of Appeal to determine whether or not the lawsuit was filed frivolously rather than the trial court, or maybe the Court of Appeal in turn will punt to the trial court. But I'd be hard pressed to understand how the Court of Appeal could make findings unless they took evidence or something.

Tim Kowal  30:35 
Yeah, I wonder if that's the normal procedure. They just punted down. The next proximate level and Court of Appeal, like you said, may decide to just punt it back down on a remand finding. That might be a question. I'll have to ask David editor about that or Supreme Court. Right. That is that it's interesting. So that came up from the Court of Appeal. Did you happen to know whether the Court of Appeal and it come to a different result than the Supreme Court?

Jeff Lewis  30:58 
If I recall correctly, the Court of Appeal had determined had affirmed that the trial court acted well within its discretion and making its feel Award and the California Supreme Court said discretion is not enough. This is an asymmetrical situation, you need a higher finding bad faith or frivolousness. By the defendants here, or by the plaintiffs.

Tim Kowal  31:17 
Yeah. Oh, good. Good topical tidbit, Jeff, and you have a couple other tidbits you wanted to share today.

Jeff Lewis  31:23 
Yeah, two bits of news, one LA Superior Court. You know, we're always talking on the show about the lack of court reporters and the problems that it causes for appeals and the LA Superior Court just recently announced a new initiative, offering financial incentives to bind court reporters, and we'll put a link in our show notes to this announcement. But basically, the court is going to be offering increased money for court reporters, student loan forgiveness for court reporters, bonuses for court reporters have been around for a long time and finders fees for court employees who refer court reporters back to the court. So I thought that was interesting, but the press release has some really interesting language in it that about the impact of a lack of record and access to justice, that I think if any lawyer at the trial or appellate court is litigating an issue about the absence of a court reporter at an access to justice, it's great language and their insight.

Tim Kowal  32:13 
Yeah, well, that's interesting. We're really scrambling here to make up for this court reporter shortage. And it has been reported that this is not an issue of money. There's money in the budget for court reporters, but it's there's just a lack of supply of court reporters, not enough new people are entering the court reporter profession, and as the ones that are their age out or retire out. They're not being replaced. So it's interesting to see that the court here is acknowledging that by incentivizing student loan forgiveness so that court reporters can go to the court reporter schools and get the training. It's a very, very difficult, very taxing process to become a court reporter. I was not aware that the pass rate for the examination is very low, very low level, well below 50%. I can't remember the specific number off the top of my head, but there's just diminishing number of new entrants. So yeah, this is a interesting attempt to add a solution to the problem here. All right.

Jeff Lewis  33:07 

And then the other tidbit I need from Ben Schatz, wonderful blog via scan blog. If you're going to be having oral argument in the second district, downtown LA from April 10. To June 2, I plan on doing it remote, the courtroom is actually going to be closed. They're going to be doing some technical upgrade upgrades to the courtroom. So remote arguments from April 10 to June 2.

Tim Kowal  33:29 

Yeah, that's a pretty lengthy shutdown of the Ronald Reagan Building. So all right. All right. Well, I think that wraps us up, Jeff, we want to thank our sponsor one more time casetext for sponsoring the podcast each week, we include links to the cases we discuss using casetext and listeners of the podcast can find a 25% discount available to them if they sign up at casetext.com/calp. That's case text.com/C A L P.

Jeff Lewis  33:54 

And if you have suggestions for future episodes, or you want to email Tim about why he's wrong about slap fiords not being staid. Go ahead and email us at email us at info at Cal podcast.com. And in our upcoming episodes, look for tips on how to lay the groundwork for an appeal for when preparing for trial. Alright, see you next time.

Announcer  34:11 

You have just listened to the California appellate podcast, a discussion of timely trial tips and the latest cases a news coming from the California Court of Appeal and the California Supreme Court. For more information about the cases discussed in today's episode, our hosts and other episodes, visit the California appellate law podcast website at ca l podcast.com. That's c a l podcast.com. Thanks to Jonathan Cara for our intro music. Thank you for listening and please join us again.

Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at CALpodcast.com, and publishes summaries of cases and appellate tips for trial attorneys. Contact Tim at [email protected] or (949) 676-9989.
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Show neither partiality to the weak nor deference to the mighty, but judge your fellow men justly.

Leviticus

"Counsel on the firing line in an actual trial must be prepared for surprises, including requests for amendments of pleading. They cannot ask that a judgment afterwards obtained be set aside merely because their equilibrium was slightly disturbed by an unexpected motion."

Posz v. Burchell (1962) 209 Cal.App.2d 324, 334

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— Hon. Sir Owen Dixon, Chief Justice of Australia

“It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is today, can guess what it will be tomorrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?”

— James Madison, Federalist 62

"At common law, barratry was 'the offense of frequently exciting and stirring up suits and quarrels' (4 Blackstone, Commentaries 134) and was punished as a misdemeanor."

Rubin v. Green (1993) 4 Cal.4th 1187

"Upon putting laws into writing, they became even harder to change than before, and a hundred legal fictions rose to reconcile them with reality."

— Will Durant

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— Plato (427-347 B.C.)

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—T.H. White, The Once and Future King

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— H.L. Mencken

"God made the angels to show Him splendor, … Man He made to serve Him wittily, in the tangle of his mind."

— Sir Thomas More in Robert Bolt's A Man for All Seasons

"So far as the beginnings of law had theories, the first theory of liability was in terms of a duty to buy off the vengeance of him to whom an injury had been done whether by oneself or by something in one's power. The idea is put strikingly in the Anglo-Saxon legal proverb, 'Buy spear from side or bear it,' that is, buy off the feud or fight it out."

— Roscoe Pound, An Introduction to the Philosophy of Law

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