Dickens v. Lee

In Dickens v. Lee (1991) 230 Cal. App. 3d 985, a judicial arbitrator had awarded compensatory damages and attorney fees of $ 1000. "Neither side requested a trial de novo, and the superior court clerk entered judgment on the arbitrator's award. Dickens and Davis filed a costs memorandum seeking $ 10,000 in attorney fees and $ 351 in costs. The Lees moved to tax costs, and the court amended the judgment to award total attorney fees and costs of $ 1,000." ( Id. at p. 987) Particularly, plaintiff relies upon statements made in a footnote, that "the amended judgment substantially modified the initial judgment as to costs and thus superseded the initial judgment for purposes of appealability ( Neff v. Ernst (1957) 48 Cal.2d 628, 634,. . .), and the appeal from the amended judgment was timely." (Ibid, fn. 1.) The difficulty in relying upon this statement in Dickens is that the appeal was allowed only as to such costs. In fact, the Dickens court pointed out that an appeal of the compensatory damages and of the attorney fees award was impossible, because neither side had requested a trial de novo of the judicial arbitration award; the proper appeal for those elements of the arbitrator's award would only have been by trial de novo and a possible appeal of the subsequent trial. ( Dickens v. Lee, supra, 230 Cal. App. 3d at pp. 987-988.) "Consequently," the court held, "the portion of the appeal challenging the award of attorney fees must be dismissed." ( Id. at p. 988.) "The only exception is where the arbitrator's award does not specify the amount of recoverable costs. In such a case there can be no request for a trial de novo as to costs, since the court determines costs in the first instance, and thus the portion of the court's judgment awarding costs must be appealable, because otherwise there would be no opportunity for appellate review." ( Id. at p. 987.)