Opinion
H043934
07-17-2018
MONTEREY COASTKEEPER, Plaintiff and Respondent, v. MONTEREY COUNTY WATER RESOURCES AGENCY, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Monterey County Super. Ct. No. M108858)
I. INTRODUCTION
Plaintiff Monterey Coastkeeper filed a petition for writ of mandate against defendant Monterey County Water Resources Agency (MCWRA) in the trial court. After a bench trial, a judgment was entered against MCWRA, and it appealed. While the appeal was pending, the trial court awarded attorney's fees and costs against MCWRA, resulting in the instant appeal. Thereafter, in an opinion regarding the first appeal, we reversed the judgment. (Monterey Coastkeeper v. Monterey County Water Resources Agency (2017) 18 Cal.App.5th 1, 21 (Monterey Coastkeeper).) As we will explain, reversal of the judgment renders MCWRA's appeal from the fees and costs order moot. Accordingly, we will dismiss the appeal.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. First Appeal Regarding the Judgment
Monterey Coastkeeper filed a petition for writ of mandate against MCWRA alleging five causes of action. (Monterey Coastkeeper, supra, 18 Cal.App.5th at pp. 8-9.) After a bench trial, the court granted the petition as to one cause of action and denied the petition as to another cause of action. (Id. at p. 11.) The remaining three causes of action were abandoned by Monterey Coastkeeper. (Ibid.) A peremptory writ of mandate and a judgment were entered in 2015.
MCWRA appealed from the judgment, and Monterey Coastkeeper filed a cross-appeal. (Monterey Coastkeeper, supra, 18 Cal.App.5th at p. 7.) In December 2017, we reversed the judgment and directed the trial court to enter a judgment denying Monterey Coastkeeper's petition for writ of mandate. (Id. at p. 21.)
B. Second Appeal Regarding the Award of Attorney's Fees and Costs
In the meantime, prior to this court reversing the judgment, the trial court granted a motion by Monterey Coastkeeper for attorney's fees under Code of Civil Procedure section 1021.5 and costs. In the April 15, 2016 order, the trial court awarded $350,000 in attorney's fees and $9,800.25 in costs to Monterey Coastkeeper. This appeal by MCWRA followed.
III. DISCUSSION
MCWRA contends that the trial court's order awarding attorney's fees and costs to Monterey Coastkeeper must be vacated. MCWRA observes that this court reversed the judgment and directed the trial court to enter a judgment denying Monterey Coastkeeper's petition for writ of mandate. Because Monterey Coastkeeper did not prevail on any of its claims, MCWRA contends that there is no basis for an award of fees and costs.
In support of its contentions on appeal, MCWRA has requested that we take judicial notice of our opinion in the prior appeal and certain documents reflecting the California Supreme Court's denial of a petition for review by Monterey Coastkeeper. Our opinion from the prior appeal was published. We find it unnecessary to take judicial notice of it, and we are aware of its subsequent history in the California Supreme Court. We therefore deny MCWRA's request for judicial notice.
In response, Monterey Coastkeeper acknowledges that this court's reversal of the judgment means that the fees and costs order cannot stand. Monterey Coastkeeper contends, however, that this court's reversal of the judgment " 'automatically' " vacated the trial court's award of fees and costs, and that this appeal is therefore moot.
In reply, MCWRA contends that the appeal is not moot because the trial court's fees and costs order is still enforceable.
The trial court in this case awarded costs to Monterey Coastkeeper and relied on Code of Civil Procedure section 1021.5 in awarding attorney's fees. Generally, a prevailing party in an action may recover costs. (Code Civ. Proc., § 1032, subd. (b).) Allowable costs include attorney's fees when authorized by statute. (Id., § 1033.5, subd. (a)(10)(B).) Thus, "[t]he costs to which a prevailing party are entitled include attorney's fees authorized by statute. [Citation.]" (Merced County Taxpayers' Assn. v. Cardella (1990) 218 Cal.App.3d 396, 402.)
Code of Civil Procedure section 1021.5 provides in pertinent part: "Upon motion, a court may award attorneys' fees to a successful party against one or more opposing parties in any action which has resulted in the enforcement of an important right affecting the public interest if: (a) a significant benefit, whether pecuniary or nonpecuniary, has been conferred on the general public or a large class of persons, (b) the necessity and financial burden of private enforcement, or of enforcement by one public entity against another public entity, are such as to make the award appropriate, and (c) such fees should not in the interest of justice be paid out of the recovery, if any." --------
"The reversal of [a] judgment sets the case completely at large except as restricted by the opinion of the appellate court [citations]." (Monson v. Fischer (1933) 219 Cal. 290, 291.) Thus, when a judgment is reversed on appeal, the issue of trial costs is "set at large." (Purdy v. Johnson (1929) 100 Cal.App. 416, 420 (Purdy).) An award of costs is considered "incident to the judgment," and a "reversal of the judgment operates to vacate the award. [Citation.]" (Evans v. Southern Pacific Transportation Co. (1989) 213 Cal.App.3d 1378, 1388 (Evans); see Purdy, supra, at pp. 420-421; Center for Biological Diversity v. County of San Bernardino (2010) 188 Cal.App.4th 603, 613, fn. 4 (Center for Biological Diversity) ["reversal of the judgment on the merits extinguishes the order on fees" even in the absence of an appeal from the order on fees].)
In the parties' prior appeal, this court reversed the judgment and directed the trial court to enter a judgment denying Monterey Coastkeeper's petition for writ of mandate. (Monterey Coastkeeper, supra, 18 Cal.App.5th at p. 21.) "Because we reverse[d] the judgment, [Monterey Coastkeeper] is no longer the prevailing party in this action and is therefore not entitled to recover any of its costs," including attorney's fees as costs. (City of Lodi v. Randtron (2004) 118 Cal.App.4th 337, 362.)
The reversal of the judgment operated to vacate the award of costs, including attorney's fees as costs. (Evans, supra, 213 Cal.App.3d at p. 1388; Purdy, supra, 100 Cal.App. at pp. 420-421; Center for Biological Diversity, supra, 188 Cal.App.4th at p. 613, fn. 4; see Code Civ. Proc., §§ 1032, subd. (b), 1033.5, subd. (a)(10)(B).) "Accordingly, [MCWRA's current] appeal from the order [granting fees and costs] is moot and the appeal therefrom must be dismissed." (Evans, supra, at p. 1388; accord, Pico Citizens Bank v. Tafco, Inc. (1958) 165 Cal.App.2d 739, 749 [appeal from order regarding costs dismissed as moot because underlying judgment was reversed].)
IV. DISPOSITION
The appeal is dismissed. The parties shall bear their own costs on appeal.
/s/_________
BAMATTRE-MANOUKIAN, J. WE CONCUR: /s/_________
ELIA, ACTING P.J. /s/_________
MIHARA, J.