Opinion
D051263
6-24-2008
PATRICIA ALKIRE, Plaintiff and Appellant, v. DONALD A. VAUGHN et al., Defendants and Respondents.
Not to be Published
A fundamental precept of appellate process is the principle that a litigant may not accept the benefits of a judgment or order and nonetheless attack the judgment or order on appeal. This principle does not apply when there is no real dispute the litigant was entitled to the benefits the litigant accepted.
Here, appellant and respondent vigorously contested the amount of attorney fees to which appellant is entitled in the trial court. Appellant has now appealed from the trial courts award of attorney fees on the grounds the award is inadequate. However, the record shows that following entry of the trial courts award, appellant accepted payment of the attorney fees awarded by the trial court. Under these circumstances, where there was a bona fide dispute about the appellants right to the fees awarded by the trial court, appellant waived her right to appeal when she accepted payment of those fees.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff and appellant Patricia Alkire worked as a legal secretary for defendants and respondents Donald A. Vaughn, Kathryn Vaughn and their law firm Vaughn & Vaughn for several months in 2005. While working for the Vaughns, Alkire was treated as an independent contractor. In February 2006, after Alkire had stopped working for the Vaughns, she filed a wage claim against them. She demanded overtime pay and payment for missed mealtimes and breaks.
Between February 2006 and June 2006 the parties attempted without success to settle Alkires claims. In June 2006 the Vaughns offered to pay Alkire a total of $32,500 on her wage claim. On June 23, 2006, Alkire filed a complaint against the Vaughns. In December 2006 the parties agreed the Vaughns would pay Alkire $20,000 in settlement of her wage claims and that for purposes of determining Alkires right to attorney fees Alkire was the prevailing party. Alkire then filed a motion for attorney fees under Labor Code sections 218.5, 226, subdivision (e), and 1194, subdivision (a). Alkire asked the court to award her a total of $234,000 in fees and costs. The Vaughns opposed Alkires motion. The Vaughns argued Alkires attorneys had not acted reasonably in prosecuting the case and pointed out that they had offered Alkire more in the way of a wage settlement before she filed her complaint than the amount she eventually agreed to accept. In their opposition memorandum, the Vaughns argued: "[G]iven the facts demonstrating unbridled overreaching, an award of zero fees and costs is more in accord with the overriding public policy against countenancing the filing or prosecution of unnecessary claims."
The trial court awarded Alkire a total of $26,580 in attorney fees and $1,285.57 in costs. At the hearing on Alkires motion, the trial court stated it awarded compensation only for fees incurred through the end of June 2006. On June 18, 2007, the Vaughns paid Alkire the $27,865 required by the trial courts order and she accepted the payment without reservation. On July 12, 2007, Alkire filed a notice of appeal from the trial courts order awarding her attorney fees.
As we indicated at the outset, the Vaughns filed a motion to dismiss the appeal on the grounds that Alkire lost her right to appeal when she accepted the benefits of the trial courts order.
DISCUSSION
The principles which govern the Vaughns motion to dismiss were set forth in Lee v. Brown (1976) 18 Cal.3d 110, 114-115. "First, as a general proposition, one who accepts the benefits of a judgment cannot thereafter attack the judgment by appeal. In Estate of Shaver (1900) 131 Cal. 219, we expressed the rule as follows: `The right to accept the fruits of a judgment, and the right of appeal therefrom are not concurrent. On the contrary, they are totally inconsistent. An election to take one of these courses is, therefore, a renunciation of the other. (Id. at p. 221, citation omitted.) In the words of Turner [v. Markham (1907) 152 Cal. 246], acceptance by the appellant of the benefits of a judgment constitutes an `. . . affirmance of the validity of the judgment against him. (Turner, supra, at p. 247.) This general rule has been applied in a number of contexts. (See, e.g., Schubert v. Reich (1950) 36 Cal.2d 298 [appellant accepted money pursuant to an order of the court that had explicitly conditioned the granting of plaintiffs motion for a new trial on the payment to defendant of that money, which order appellant then attempted to challenge]; Giometti v. Etienne (1936) 5 Cal.2d 411 [appellants paid the balance due on a contract of purchase, received a conveyance of property, encumbered that property, and filed a satisfaction of judgment]; Wilson v. Wilson (1958) 159 Cal.App.2d 330 [appellant accepted the benefits of a divorce decree and then sought to appeal the portion of the decree imposing obligations upon him]; see also 6 Witkin, Cal. Procedure, supra, Appeal, §§ 136-137, pp. 4131-4133.)
"As is so often the case, however, application of the rule has generated a number of equitable exceptions. A waiver is not implied, for example, in those cases in which appellant is concededly entitled to the accepted benefits, and his right to them is unaffected by the outcome of the case on appeal. (Estate of Hubbell (1932) 216 Cal. 574, 577.) Stated another way, one may appeal from a portion of a severable and independent judgment while accepting the benefits of the unaffected remainder of the judgment. (Templeton Feed & Grain v. Ralston Purina Co. (1968) 69 Cal.2d 461, 468-469; Mathys v. Turner (1956) 46 Cal.2d 364, 365; Gudelj v. Gudelj (1953) 41 Cal.2d 202, 214-215; Estate of Hubbell, supra, 216 Cal. 574, 577; Preluzsky v. Pacific Co-operative C. Co. (1925) 195 Cal. 290, 293; see also 6 Witkin, Cal. Procedure, supra, Appeal, §§ 138-139, pp. 4134-4136.)." (Ibid.)
As the Vaughns point out, their decision to accept the trial courts determination of their liability for attorney fees did not amount to a concession that Alkire was entitled to the fees they paid. The court in Mathys v. Turner, supra, 46 Cal.2d at pages 365-366, confronted a very similar situation, where a trial court awarded only a fraction of attorney fees requested by a litigant, the litigant accepted that amount from his adversary, and the litigant argued his appeal only concerned whether he was entitled to a greater recovery. In rejecting this contention, the court stated: "`[I]f a party to a judgment accepts payment or satisfaction of a part thereof which is favorable to him, and that part is of such a character that the part adverse to him cannot be reversed without affecting the part which is in his favor and requiring the reversal of that part also, the party so accepting the fruits of a part of the judgment in his favor is estopped from prosecuting an appeal from those parts which are against him. " (Id. at p. 366.)
Here, the trial court issued an order awarding Alkire a single sum, and by way of her brief on the merits she asks that we reverse and remand that order. As in Mathys v. Turner, we cannot reverse the insufficient portion of the order without affecting the part which is favorable to her. Contrary to Alkires argument, this is not a situation similar to the one we confronted in Lovett v. Carrasco (1998) 63 Cal.App.4th 48, 52, where, in the trial court, the plaintiff granted a number of medical providers liens on a personal injury settlement, the trial court reduced the liens and the plaintiff paid the reduced liens. After accepting the reduced payments, the medical providers nonetheless argued the trial court acted unlawfully in reducing the amounts of the liens. We found no waiver of the right to appeal because the plaintiff had, both in the trial court and on appeal, conceded he owed the reduced amounts. In contrast here the Vaughns have consistently argued that in fact Alkire was not entitled to any fees because of the manner in which her counsel conducted the litigation. Nothing the Vaughns have done would prevent them from reasserting on any remand that Alkire was not entitled to an award of any fees.
This case is also distinguishable from the circumstances considered in In re Marriage of Fonstein (1976) 17 Cal.3d 738, 744-745, where a wife accepted in part the trial courts award of community property, including stock, but challenged the trial courts valuation of her former husbands law partnership. The court found no waiver because the award of the stock and other community property was clearly severable from the valuation of the law partnership and on appeal the courts disposition of the valuation issue would not require that it disturb that portion of the award made in the wifes favor. (Ibid.) Here, the attorney fee award is not severable, and on remand the trial court could determine that in fact Alkire was entitled to less than the initial award.
Because Alkire accepted the benefits of the trial courts award, and that award is not severable, she has no right to attack the award. Appeal dismissed. Respondents to recover their costs of appeal.
WE CONCUR:
McCONNELL, P. J.
HUFFMAN, J. --------------- Notes: The Vaughns had previously paid Alkire $20,000 in settlement of her wage claim.