The Addition of Fees and Costs to a Judgment Does Not Restart The Clock on Time to Appeal from the Judgment

Torres v. City of San Diego, case no. D049111 (4th Dist. July 25, 2007, ordered published August 17, 2007), presents some curiously unique facts.  The City of San Diego approved a resolution for the indemnification of pension board members against amounts incurred by them in actions relating to their scope of performance as board members.  The board members later found themselves in need of indemnification — because of two lawsuits brought against them by the City!  When their demand for indemnification under the resolution and under Government Code section 995 was refused, the members sued the city.  The members prevailed on summary judgment, and the judgment entered on the motion contained blanks for the fees and costs to be awarded in the indemnification action.  The City filed an untimely appeal from the judgment, which was dismissed.

The members filed a motion for attorneys fees under Government Code section 800 and Code of Civil Procedure section 128.5.  On reply, they also argued they were entitled to fees under the resolution.  After giving the City an opportunity to file additional briefing on the issue, the court granted the motion, finding that the resolution entitled the board members to fees in the indemnification action.

The City appealed from the order awarding attorney fees.  The board members moved to dismiss the appeal insofar as it purported to challenge the underlying judgment.

The Court of Appeal grants the motion to dismiss, and its opinion invokes a rule it would be good to remember: an amendment to a judgment does not “restart the clock” on the time to appeal from it unless the amendment amounts to a “substantial modification” of the judgment.  It is well-settled that the insertion of the amount of fees and costs into an existing judgment does not constitute the requisite substantial modification.

The City tried to get around this general rule in three ways.  First, it contended that the blanks were left for fees and costs in the two underlying actions for which indemnification was sought and that the insertion of fees and costs from the present action therefore constituted a substantial change.  The language of the judgment itself contradicted this argument.  Second, it argued that because fees were sought under the City resolution rather than under an unambiguous statute or contract provision or the code sections raised in the prayer of the complaint (Government Code section 800 and Code of Civil Procedure 128.5), that the motion raised “new legal issues” and thus the award of fees and costs was a substantial modification of the judgment.  This argument is also easily rebuffed:

The legal basis for a fee award, however, is reviewed in the appeal from the order awarding fees; it does not resurrect a stale appeal of the judgment.  The legal basis for the award has nothing to do with the propriety of the underlying summary judgment.

Finally, the court also easily disposes of the City’s due process argument, which the City based on the fact that the board members only raised the resolution as a basis for the fee award in their reply memorandum.  Since the trial court afforded the city an opportunity for supplemental briefing, there was no due process violation in awarding fees on a basis raised for the first time on reply.

UPDATE (8/21/07): The Opening Brief blogs the case with an eye on the irony of the decision on the merits.