United Services Automobile Ass'n v. Dalrymple

Opinion

WIENER, Acting P. J.

—Plaintiff United Services Automobile Association (USAA) brought this declaratory relief action against defendant Ann Dalrymple to resolve a coverage dispute concerning Dalrymple’s renter’s insurance policy. Dalrymple cross-complained alleging that USAA’s denial of coverage was in bad faith. Significantly, the cross-complaint was severed and the declaratory relief action proceeded to trial.

At the close of USAA’s case, Dalrymple successfully moved for nonsuit pursuant to Code of Civil Procedure section 631.8. USAA requested a statement of decision which the court directed Dalrymple to prepare. Instead, Dalrymple submitted a document entitled “Order for Judgment” which specified the court’s findings. This order recited that Dalrymple was entitled to attorney’s fees under the authority of

Brandt

v.

Superior Court

(1985) 37 Cal.3d 813 [210 Cal.Rptr. 211, 693 P.2d 796]. USAA refused to approve the order as to form but the record does not reveal the basis for its objection. In any event, the court signed the order on June 8, 1990, and five days later signed a conforming judgment incorporating Dalrymple’s entitlement to attorney’s fees.

[185]

Discussion

USAA’s argument in this court does not challenge the trial court’s conclusion on the issue of coverage under Dalrymple’s renter’s policy. The appeal is limited solely to the question of whether the court was authorized to award attorney’s fees to Dalrymple as part of the declaratory relief action.

I

Before addressing the substance of this contention, Dalrymple raises two preliminary procedural questions we must consider. Both arguments are based on the assumption that USAA should have known the “Order for Judgment” prepared by Dalrymple was in fact a proposed statement of decision.

Dalrymple first asserts that in filing a notice of appeal from “the judgment entered on or about June 8, 1990,” USAA has attempted to appeal from a nonappealable order. In support of this argument she cites authority for the proposition that a “memorandum decision” or oral “order for judgment” is not appealable if it merely indicates the judge’s opinion on how judgment should be rendered. (See 9 Witkin, Cal. Procedure (3d ed. 1985) Appeal, § 90, p. 111.) It is, however, academic whether the court’s order here fits this profile because the court followed the June 8 order almost immediately with a formal judgment. The notice of appeal from a judgment entered “on