File A Separate Appeal From A Post-Judgment Order Awarding Attorney's Fees

Attorneys frequently do not file a separate notice of appeal to challenge a trial court’s post-judgment award of attorney’s fees and costs because they assume one notice of appeal from the judgment is sufficient. Filing a single notice of appeal is risky business because California Courts of Appeal disagree whether two separate notices of appeal are required.

In Grant v. List & Lathrop (1992) 2 Cal.App.4th 993, the trial court entered judgment and awarded fees and costs but left the amount blank. The trial court later entered a separate post-judgment order (separately appealable), determining the amount of fees and costs. Appellants did not file an appeal from the post-judgment order. The Grant Court held that a separate notice of appeal was not required because the judgment expressly awarded fees and costs. Therefore, a notice of appeal from the judgment was sufficient notice that appellants were seeking review of the fee award, as well as the judgment.

However, the Court in Silver v. Pacific American Fish Co., Inc. (2010) 190 Cal.App.4th 688 held that a separate notice of appeal was required. Like Grant, the judgment provided for recovery of fees and costs but left a blank space for the amount. In post-judgment proceedings, the trial court determined both the entitlement and amount of fees and entered a separately appealable order. No appeal was filed from the order. The Silver Court held that the judgment was insufficient to include the post-judgment order, and thus it did not have jurisdiction to review it without a separate notice of appeal.

Bottom line: Failure to file a separate, timely notice of appeal from a post-judgment order awarding fees and costs may result in the Court of Appeal finding that it lacks jurisdiction to review the order.

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