An appeal from the judgment did not reach a later section 998 cost award, so the Court of Appeal could not review it
Appealing a postjudgment cost order takes its own notice of appeal. In Falbo v. Parisi, an unpublished decision, the First District, Division Two, affirmed a defense verdict in a wrongful death case and held it had no jurisdiction over a $118,533.67 cost award under Code of Civil Procedure section 998, because the plaintiffs never filed a notice of appeal from the order that made the award.
What happened
The plaintiffs sued the driver of a commercial dump truck who, while turning right at an intersection in Santa Rosa, struck and killed their 20-year-old daughter, who was on her bicycle, in the crosswalk. After a trial lasting almost four weeks, the jury found the driver was not negligent.
Before trial, the defendant had made a one million dollar offer to compromise under section 998. After the March 4, 2024 verdict, he filed a verified memorandum of costs on March 29, 2024 that included $163,533.67 in witness fees. The plaintiffs moved to tax costs on April 12, 2024. The court entered judgment on April 23, 2024. The judgment was silent on costs.
On June 25, 2024, the plaintiffs filed a notice of appeal from the judgment. The notice also said it was from “[a]ny subsequent orders or judgments that the Court may issue,” including any order on the memorandum of costs and the motion to tax. The court had not yet ruled on costs. It heard the motion on July 11, 2024, allowed supplemental briefing, held a second hearing on August 2, and on August 28, 2024 entered a written order upholding the section 998 offer and awarding $118,533.67, nearly 30 percent less than the defendant had sought. No notice of appeal was filed from that order.
Is a postjudgment cost order separately appealable?
Yes. The court explained that postjudgment orders are separately appealable under Code of Civil Procedure section 904.1, subdivision (a)(2). Quoting Pfeifer v. John Crane, Inc. (2013) 220 Cal.App.4th 1270, it wrote that “[W]hen a party intends to challenge the judgment and a postjudgment order related to costs, the normal procedure is to file separate appeals from the judgment and the postjudgment order” because the postjudgment order ordinarily is a final order on a matter collateral to the judgment. The plaintiffs filed only one notice of appeal, and it was filed before the cost order existed.
Why the Grant v. List & Lathrop exception did not apply
The plaintiffs relied on Grant v. List & Lathrop (1992) 2 Cal.App.4th 993, which holds that “when a judgment awards costs and fees to a prevailing party and provides for the later determination of the amounts, the notice of appeal subsumes any later order setting the amounts of the award.” The parties disputed whether Fish v. Guevara (1993) 12 Cal.App.4th 142 was right to decline to extend that exception to section 998 awards. The court found it unnecessary to decide. Even if Grant could apply to a section 998 award, it did not apply here, because this judgment neither awarded costs nor provided for a later determination of their amount:
“The judgment is silent on that issue, and the entire subject (both entitlement and amount) was determined later.”
Can a notice of appeal cover an order the court has not made yet?
Not on these facts. The plaintiffs did not argue that the forward-looking language in their notice was enough, but the court considered the point and agreed with the defendant that it did not confer jurisdiction. Citing Spears v. Spears (2023) 97 Cal.App.5th 1294 and rule 8.104(d) of the California Rules of Court, the court explained that a notice of appeal is invalid, and cannot be treated as a premature but timely appeal, if it is “filed before a trial court announces its intended decision.” This notice was filed before either hearing on costs, before the supplemental briefing, and at a time when the court had announced no decision on costs, “not even a tentative one.”
The rest of the appeal
On the merits, the court affirmed. Reviewing for abuse of discretion, it held the trial court properly admitted the defense accident reconstruction testimony and the computer animations illustrating it. It rejected the challenge to the sufficiency of the evidence as inadequately briefed and as failing the standard that applies when the party with the burden of proof lost at trial: whether the evidence compels a finding for the appellant as a matter of law. The disposition reads: “The judgment is affirmed. Respondent shall recover his costs.”
What it means in practice
A judgment and a later order on costs are usually two appealable rulings, and each one needs its own timely notice of appeal. The Grant exception is narrow, and whether it can even come into play depends on what the judgment itself says about costs. A sentence in a notice of appeal reaching for orders that have not yet been made did not stand in for a notice filed after the ruling. For more on which rulings are appealable and when, see our posts on appealable and writ-only orders and appeal deadlines.
Falbo v. Parisi is unpublished and cannot be cited or relied on in California courts (Cal. Rules of Court, rule 8.1115(a)).
Key takeaways
- The First District held it lacked jurisdiction over a postjudgment section 998 cost award because no notice of appeal was filed from that order.
- Postjudgment orders are separately appealable, and the normal procedure is to file separate appeals from the judgment and the postjudgment cost order.
- The Grant v. List & Lathrop exception did not apply because the judgment neither awarded costs nor provided for a later determination of their amount.
- A notice of appeal filed before the trial court announced any decision on costs did not confer jurisdiction over the later cost order.
- The court affirmed the defense verdict and left open whether Fish v. Guevara was correctly decided.
Why appeals like this one need an appellate lawyer
The plaintiffs came to the Court of Appeal with two arguments against a $118,533.67 cost award: that the section 998 offer was invalid, and that the amount was excessive. The court never reached either one. The trap was timing. The only notice of appeal was filed in June 2024, before the trial court ruled on costs. The cost order came on August 28, 2024, and no notice of appeal followed it. Language in the earlier notice reaching for future orders did not fill the gap.
An appellate lawyer treats every postjudgment ruling as a possible new appeal with its own clock. That means tracking motions on costs and fees that are still pending after judgment, calendaring the deadline from the order that actually decides them, and filing a separate notice once that order is entered. It also means reading the judgment itself to see whether it awards costs, since that decides whether any exception could apply.
If a judgment has been entered and costs or fees are still being decided, talk to an appellate lawyer early, before a deadline runs on an order you assumed was covered. Learn more about our appellate practice.
What this post is not. This post is attorney advertising and general information about a court decision. It is not legal advice, and reading it does not create an attorney-client relationship. Every case turns on its own facts and record, and appellate deadlines are short and often jurisdictional — talk to appellate counsel about your case promptly.
Facing a ruling you may need to appeal or challenge by writ? Yisrael Gelb · yisrael@gelblawapc.com · (323) 632-6864