Opinion
A153056
07-26-2018
JUSTIN FONG, M.D., et al., Plaintiffs and Appellants, v. PHILIP SHERIDAN, Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Marin County Super. Ct. No. CIV 1003444) MEMORANDUM OPINION
We resolve this case by a memorandum opinion pursuant to California Standards of Judicial Administration, section 8.1(1), (3).
Judgment was entered against plaintiffs Justin Fong, M.D., and Suzanna Fong, from which they twice appealed. (Fong v. Sheridan (Apr. 21, 2016, A144286) [nonpub. opn.] (Fong I); Fong v. Sheridan (May 15, 2018, A152466) [nonpub. opn.] (Fong II).) While Fong II was pending, the trial court entered an amended and modified judgment awarding attorney fees and costs against the Fongs, which forms the basis of this current appeal. The Fongs argue, in part, reversal of the underlying judgment requires reversal of the award of fees and costs. We agree.
We take judicial notice of our prior decisions. (Evid. Code, § 452, subd. (d).) --------
In Fong II, supra, A152466, we reversed the judgment and vacated the prevailing party and attorney fee determinations. We concluded "the revised statement of decision does not explain ' "how or in what manner" ' the rejected damages were ' "unsupported by the evidence." ' [Citation.] And in this case, such a lack of evidentiary support could relate to issues of causation, failure of proof, or some other grounds." (Fong II, supra, A152466.) We vacated the damage award and remanded for the trial court to clarify its findings. We also vacated the trial court's prevailing party determination and the attorney fee and costs award.
To the extent the judgment in Fong II encompassed the attorney fees and costs award at issue in this appeal, our prior opinion expressly reversed that award. (Fong II, supra, A152466.) To the extent the trial court's postjudgment order awarded fees and costs beyond those enumerated in the judgment, such an award is merely incidental to the underlying judgment on which it is based. (Folsom v. Butte County Assn. of Governments (1982) 32 Cal.3d 668, 677; Engle v. Copenbarger & Copenbarger, LLP (2007) 157 Cal.App.4th 165, 169 [" 'Costs and attorneys' fees are authorized solely by statute, and are [an] incident of the judgment unless expressly part of the judgment.' "].) Accordingly, an order awarding attorney fees and costs "falls with a reversal of the judgment on which it is based." (Merced County Taxpayers' Assn. v. Cardella (1990) 218 Cal.App.3d 396, 402.)
Because the attorney fees and costs award has been reversed as the result of our prior opinion reversing the judgment, there is no longer any ruling for us to review. Accordingly, the Fongs' claims of errors regarding that ruling are moot. Courts have a duty to refrain from opining on moot questions. (Paul v. Milk Depots, Inc. (1964) 62 Cal.2d 129, 132.) Therefore, when an entire appeal has been rendered moot, an appellate court should generally dismiss the appeal rather than decide the issue on the merits. (Id. at pp. 132, 134.)
DISPOSITION
The appeal is dismissed. The parties shall bear their own costs on appeal. (Cal. Rules of Court, rule 8.278(a)(3).)
/s/_________
Margulies, J. We concur: /s/_________
Humes, P.J. /s/_________
Dondero, J.