By: Eric Michael Papp, Esq.
You win! However, in a surprising move, the debtor pays the judgment, but also files a "Notice of Appeal" limited solely to "An order after judgment under Code of Civil Procedure section 904.1(a)(2)." (i.e. for the attorney’s fees and costs). Must the debtor file a bond to stay collection of the fees and costs pending the appeal?
According to Code of Civil Procedure section 916(a), "Except as provided in Section 917.1 to 917.9, inclusive, and in Section 116.810, the perfecting of an appeal stays proceedings in the trial court upon the judgment or order appealed from or upon the matters embraced therein or affected thereby, including enforcement of the judgment or order, but the trial court may proceed upon any other matter embraced in the action and not affected by the judgment or order." Essentially, as to matters affected by the appealed judgment or order, the trial court’s power to enforce the appealed judgment or order is suspended while the appeal is pending. (Varian Med. Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 189; Waremart Foods v. United Food & Comm’s Workers Union, Local 588 (2001) 87 Cal.App.4th 145, 154.)
Moreover, subdivision (d) of CCP § 917.1 provides in pertinent part, "...However, no undertaking shall be required pursuant to this section solely for costs awarded under Chapter 6 (commencing with Section 1021) of Title 14." Further clarifying this issue, the court in Ziello v. Super. Ct. (First Fed’l Bank of Calif.) (1999) 75 Cal.App.4th 651, 655, stated the following in footnote number 2: "Section 1021 is the first provision of chapter 6, "Of Costs," which in turn is part of title 14, "Miscellaneous Provision." Section 1033.5, also part of chapter 6, includes attorney’s fees authorized by a contract as an item of costs (subd. (a)(10)(A)). Civil Code section 1717, under which the attorney’s fee award in this case was made, provides for reciprocity in contract-authorized attorney’s fees: if the contract allows fees to one party if it prevails in an action arising from the contract, another party, adverse to the first, is entitled to fees if it prevails. (See Scott v. Blount, Inc. (1999) 20 Cal.4th 1103, 1108.)" (Ziello, 75 Cal.App.4th at 655, FN 2.)
As such, a judgment solely for costs of suit pursuant to Code of Civil Procedure section 1021, et seq. is automatically stayed by appeal. (CCP § 917.1(d); Vadas v. Sosnowski (1989) 210 Cal.App.3d 471, 475.) As indicated above, although section 917.1(d) does not expressly refer to attorney fees, when such fees are awarded pursuant to "contract, statute or law," the fee award is included within section 1021 as recoverable costs of suit. (CCP § 1033.5(a)(10)(A), (B), (C) & (c)(5); Dowling v. Zimmerman (2001) 85 Cal.App.4th 1400, 1430; Ziello v. Super. Ct. (First Fed’l Bank of Calif.) (1999) 75 Cal.App.4th 651, 655.)
In Ziello, a bank appealed only from the judgment that awarded attorneys fees and costs to the bank’s mortgagor as the "prevailing party." It should also be noted that such an award of attorney’s fees and costs is separately appealable. (Lakin v. Watkins Assoc. Ind., (1993) 6 Cal4th 644, 654.) The appeal at issue in our hypothetical discussion here is likewise only as to the award of attorneys fees and costs. In this regard, the Ziello Court held: "In this case we decide whether a judgment debtor, who pays and does not appeal the amount of the judgment for damages, but who does appeal from the trial court’s order after judgment assessing costs and attorney’s fees, is required to file an appeal bond to stay execution on the unpaid amounts. We conclude that an appeal bond is not required in this situation." (Ziello, 75 CalApp4th at 652.) This is directly on point. The Ziello Court went on to state, "Since the appeal is limited to the order awarding costs, including attorney’s fees, it is within the exclusion of the final provision of section 917.1, subdivision (d). As we have discussed, that provision eliminates the requirement of an undertaking when the appeal is solely from an award of costs." (Ziello, 75 CalApp4th at 655.)
As such, if the debtors have already paid the judgment and are appealing only the attorney's fee award, collection efforts on the attorney's fees are stayed automatically, pending the appeal, therefore any collection efforts might potentially be an abuse of process.
Eric Papp is a licensed attorney in both California and Nevada and a licensed Real Estate Broker. Mr. Papp is the principal of the Law Offices of Eric Michael Papp located at 495 East Rincon, Suite 125, Corona, CA 92879. www.ca-nvlaw.com Mr. Papp can be reached at (951) 279-6700
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