Zeppenfeld v. Reilley CA1/4 ( 2014 )

Filed 6/30/14 Zeppenfeld v. Reilley CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
DON ZEPPENFELD et al.,
Plaintiffs and Respondents,
A138668
v.
MARTIN REILLEY, (Sonoma County
Super. Ct. No. SCV 226091)
Defendant and Appellant.
Martin Reilley purports to appeal from a “final judgment after remand” entered on
March 19, 2013, though the appeal seeks to review an order denying attorney fees entered
more than a year earlier on February 6, 2012. Don and Kathy Zeppenfeld (respondents)
have moved for sanctions and attorney fees, contending that the appeal is frivolous. We
dismiss the appeal and remand the matter to the trial court for a determination of the
amount of attorney fees to be awarded on appeal.
I. PROCEDURAL BACKGROUND
We have previously set forth the underlying facts in this action in Zeppenfeld v.
Reilley (Dec. 21, 2007, A110461 [nonpub. opn.]. In summary, we affirmed the jury
verdict in favor of respondents on their fraud cause of action against Reilley which arose
in connection with the construction of a new home in Santa Rosa. In addition, we
reversed the trial court’s order granting Reilley’s motion for summary adjudication of
respondents’ causes of action for breach of contract and breach of express warranty,
concluding that there were triable issues of fact on whether the contract between the
parties encompassed an agreement to repair leaks on the property, whether repairs were
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warranted and whether the warranties were disclaimed by the contract. We therefore
remanded the matter for further proceedings.
This court issued the remittitur in the action on April 25, 2008. Respondents
proceeded to make attempts to execute on the judgment. They abandoned their
contractual causes of action.
On August 1, 2008, the trial court notified the parties that all trial exhibits would
be destroyed pursuant to Code of Civil Procedure section 1952 unless either party
requested preservation of the exhibits or made arrangements to withdraw them. Counsel
for respondents assumed that the court would thereafter close its file.
Instead, on May 12, 2011, Reilley moved for mandatory dismissal of the action
pursuant to Code of Civil Procedure section 583.320, subdivision (a)(3), for failure to
bring the matter to trial within three years of the filing of the remittitur. Respondents
opposed the motion and filed a request for voluntary dismissal with prejudice of the
contract and warranty causes of action. On July 14, 2011, the trial court granted Reilley’s
motion, and ordered the breach of contract and breach of express warranty causes of
action dismissed with prejudice pursuant to section 583.320, subdivision (a)(3).
On September 15, 2011, Reilly moved for attorney fees contending that he was
entitled to an award of attorney fees because he was successful in the defense of the
contract causes of action in respondents’ complaint. The trial court denied the motion. It
found that it was bound by Judge Champlin’s August 16, 2005 ruling that respondents
were the prevailing party under a broad contractual clause for attorney fees. 1 The court
noted that “Judge Champlin impliedly found the work on the various causes of action to
be too intertwined for segregation.” On February 10, 2012, the court entered notice of
entry of the order denying Reilley’s motion for attorney fees.
On March 19, 2013, the court, upon Reilley’s request, entered a “Final Judgment
After Remand” setting forth the judgment, attorney fees, and costs order entered in favor
of respondents in 2005, the 2011 order dismissing the contract causes of action that were
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The trial court awarded respondents their attorney fees through May 19, 2005, in
the amount of $519,063.78.
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the subject of Reilleys’ mandatory dismissal motion, and the 2012 order denying his
motion for attorney fees. Reilley filed a notice of appeal on May 10, 2013.
II. DISCUSSION
Respondents contend that the appeal must be dismissed because it is untimely.
We agree.
An order denying an award of attorney fees is appealable as an order entered after
judgment under Code of Civil Procedure section 904.1, subdivision (a)(2). (Lakin v.
Watkins Associated Industries (1993) 6 Cal. 4th 644, 654–655; Whiteside v. Tenet
Healthcare Corp. (2002) 101 Cal. App. 4th 693, 706.) The order denying Reilley attorney
fees here contemplated no further action, and disposed of all of the issues between the
parties. (See Laraway v. Pasadena Unified School Dist. (2002) 98 Cal. App. 4th 579, 582
(Laraway).) The subsequent March 13 judgment, entered over a year later, summarized
the proceedings in the case, reiterated the judgment entered in favor of respondents on
August 16, 2005, and noted the 2011 dismissal of respondents’ breach of contract and
express warranty causes of action and the denial of Reilley’s motion for attorney fees in
2012. The 2011 dismissal constituted a judgment under section 581d. The subsequent
March 2013 judgment added nothing to the judgment and orders already entered in the
case. “Once a final, appealable order or judgment has been entered, the time to appeal
begins to run. The Rules of Court do not provide, once a judgment or appealable order
has been entered, that the time to appeal can be restarted or extended by the filing of a
subsequent judgment or appealable order making the same decision.” (Id. at p. 583.)
Here, the trial court entered the order denying Reilley’s motion for attorney fees
on February 6, 2012. Respondents served notice of entry of the order denying Reilley’s
motion for an award of attorney fees on February 10, 2012. Reilley was therefore
required to serve the notice of appeal within 60 days of the notice of entry of the order.
(Cal. Rules of Court, Rule 8.104(a)(1)(B).)
“Compliance with the time for filing a notice of appeal is mandatory and
jurisdictional. [Citation.] If a notice of appeal is not timely, the appellate court must
dismiss the appeal.” (Laraway, supra, 98 Cal.App.4th at p. 582.) Because Reilley failed
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to timely appeal the court’s order denying his motion for attorney fees within 60 days
after the February 10, 2012 notice of entry of the order, his appeal, filed on May 10,
2013, was untimely and must be dismissed.
Respondents move for sanctions and request attorney fees contending that
Reilley’s appeal is frivolous and “obvious litigation gamesmanship.” We agree that the
appeal is frivolous; it has no arguable merit and appears to have been brought for an
improper motive. We need not decide, however, whether sanctions are appropriate.
Respondents are entitled to fees as the prevailing parties pursuant to the contract
provision in the real estate purchase contract between the parties. (Amtower v. Photon
Dynamics, Inc. (2008) 158 Cal. App. 4th 1582, 1610 [where party is entitled by contract to
recover fees as the prevailing party, right includes fees incurred on appeal].) While we
have the power to decide the amount of fees to be awarded on appeal, the better practice
is to remand the matter to the trial court to determine the appropriate amount of fees.
(Ibid.)
III. DISPOSITION
The appeal is dismissed. Respondents are to recover their costs and attorney fees
on appeal. The matter is remanded to the trial court for a determination of the amount of
attorney fees to be awarded on appeal.
_________________________
Rivera, J.
We concur:
_________________________
Reardon, Acting P.J.
_________________________
Humes, J.
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