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What Happens to a Fee Award After the Judgment Is Reversed? Try a Stipulated Reversal


Here is a common scenario, with a rather uncommon resolution. You have appealed a judgment, and you have separately appealed the attorney fee award. You reversed the judgment. After reporting the victory to the client, you suddenly remember: what about the fee award?

That is what happened in Mid-Wilshire Property, L.P. v. Dr. Leevil, LLC (D4d3 Juul. 20, 2022 no. G059899) 2022 WL 2824967 (nonpub. opn.). The appellants reversed the judgment, but briefing had not even begun in the separate appeal of the fee award of almost $500,000.

Here is what the parties did: They filed a joint stipulated request to summarily reverse the attorney fee award. And the appellate court granted it.

But the court made a few comments about the parties’ request.

The Procedure for a Stipulated Reversal:

First, the court noted that an appellate court has “inherent authority” to summarily reverse. (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2016) ¶ 5:82, p. 5-34.) This power may be exercised when the correct outcome of an appeal is clear, making further appellate proceedings a waste of time. (Melancon v. Walt Disney Productions (1954) 127 Cal.App.2d 213, 215 [motion granted because recent Supreme Court case on same issue compelled reversal].)

But the legislature has something to say about this procedure. Specifically, Code of Civil Procedure section 128(a)(8) imposes a presumption against stipulated reversals. Section 128(a) states:

“An appellate court shall not reverse or vacate a duly entered judgment upon an agreement or stipulation of the parties unless the court finds both of the following: [¶] (A) There is no reasonable possibility that the interests of nonparties or the public will be adversely affected by the reversal. [¶] (B) The reasons of the parties for requesting reversal outweigh the erosion of public trust that may result from the nullification of a judgment and the risk that the availability of stipulated reversal will reduce the incentive for pretrial settlement.”