$22,230 Fee Award Went POOF!
In Vestar/Kimco Tustin, L.P. V. Sesar, Case No. G048831 (4th Dist., Div. 3 May 30, 2014) (unpublished), the lower court sustained a demurrer to a breach of lease action and overruled a demurrer to a breach of guaranty cause of action, with plaintiff filing a voluntary dismissal of its complaint on the date of trial and the lower court then vacating the dismissal so plaintiff could appeal the demurrer ruling. The lower court then awarded the defense $22,230 in attorney’s fees under Civil Code section 1717 based on lease/guaranty fees clauses.
This one was overturned on appeal.
First, however, the appellate court had to address the timeliness of the fee order appeal. The defense argued that plaintiff’s appeal was untimely because it was more than 180 days from the voluntary dismissal. However, there was a wrinkle here: the lower court vacated the plaintiff’s dismissal of the lease cause of action prior to the expiration of the time to appeal from the earlier dismissal. Because no appeal lies from a vacated “judgment” (the earlier dismissal), the appeal was timely from the order vacating the dismissal.
Once this occurred, the fee award had to be reversed because the lower court erroneously sustained the demurrer. This meant that the defense could not be the prevailing party under section 1717, leading to a reversal of the fee award.
Justice Moore authored this 3-0 unpublished decision.