McMillin Companies v. American Safety Indemnity CA4/1
- Proceeding
- appeal from an order
- Trial court
- Superior Court of San Diego County · No. 37-2009-00083837-CU-IC-CTL
- Trial judge
- Judith F. Hayes
- Outcome
- dismissed — Appeal dismissed.
- Area
- civil
- Panel
- Joan K. Irion (author), Gilbert Nares, Cynthia Aaron
Analysis
The trial court granted a motion to strike the defendant's memorandum of costs. The Court of Appeal dismissed the appeal as moot because the underlying judgment was reversed in a companion case decided the same day.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Order granting motion to strike memorandum of costs“An order denying costs 'falls with a reversal of the judgment on which it is based.'” | mixed | harmless error | agree with court The appellate court correctly identified that the appeal was moot because the underlying judgment was reversed in the companion case D063586. Since costs are incidental to the judgment, the reversal of the judgment rendered the specific order regarding the striking of costs moot, making dismissal the appropriate procedural outcome rather than a merits review. |
Authorities
- relied: Allen v. Smith (2002) 94 Cal.App.4th 1270 — An order denying costs falls with a reversal of the judgment on which it is based.
- relied: Purdy v. Johnson (1929) 100 Cal.App. 416 — Costs on appeal are merely incidental to the judgment appealed from.
- relied: Evans v. Southern Pacific Transportation Co. (1989) 213 Cal.App.3d 1378 — An appeal is moot and must be dismissed when the underlying judgment is reversed.
The appellate opinion: sound — The opinion is procedurally sound as it correctly applies the mootness doctrine to a post-judgment costs order following the reversal of the underlying judgment in a companion case. The reliance on established California authority regarding the incidental nature of costs supports the dismissal.
How this analysis was made · dispute it
unusual dispositionThe superior court granted McMillin's motion to strike ASIC's memorandum of costs after entering a judgment in McMillin's favor. On appeal, the Court of Appeal dismissed ASIC's appeal from the cost order as moot because it had reversed the underlying judgment the same day in companion appeal D063586.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Postjudgment order granting motion to strike ASIC's memorandum of costs“An order denying costs " 'falls with a reversal of the judgment on which it is based.' " (Allen v. Smith (2002) 94 Cal.App.4th 1270, 1284.)” | unclear | not reached | agree with court The court did not review the merits of the cost order; it held the appeal moot because reversal of the underlying judgment necessarily vacates the cost order that depends on it. This is a well-settled principle (costs are incidental to the judgment) and ASIC itself conceded the dependency, so dismissal as moot is the correct disposition. |
Authorities
- relied: Allen v. Smith (2002) 94 Cal.App.4th 1270 — An order denying or awarding costs falls with a reversal of the judgment on which it is based.
- relied: Purdy v. Johnson (1929) 100 Cal.App. 416 — Costs are merely incidental to the judgment appealed from.
- relied: Evans v. Southern Pacific Transportation Co. (1989) 213 Cal.App.3d 1378 — An appeal that has become moot should be dismissed.
The appellate opinion: sound — The opinion applies the settled rule that a cost order is incidental to and falls with the judgment, so reversal of the judgment in the companion appeal moots the appeal from the cost order. The reasoning is brief but complete for the question presented and is supported by the cited authorities and ASIC's own concession.
Opinion
Filed 1/22/15 McMillin Companies v. American Safety Indemnity CA4/1 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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
MCMILLIN COMPANIES, LLC, D065298
Plaintiffs and Respondents, v. (Super. Ct. No. 37-2009-00083837- CU-IC-CTL) AMERICAN SAFETY INDEMNITY COMPANY, Defendant and Respondent.
APPEAL from an order of the Superior Court of San Diego County, Judith F.
Hayes, Judge. Appeal dismissed.
Wilson, Elser, Moskowitz, Edelman & Dicker, Gregory D. Hagen and John R.
Clifford for Defendant and Appellant.
Law Offices of Greg J. Ryan, Greg J. Ryan and Debbie H. Kim for Plaintiffs and Respondents.
Defendant American Safety Indemnity Company (ASIC) appeals from a postjudgment order of the superior court granting a motion to strike ASIC's memorandum of costs ("Order"). The judgment that preceded ASIC's memorandum is the subject of another appeal in this court, decided this same date, McMillin Cos., LLC v. American Safety Indemnity Co., No. D063586 (D063586). In D063586, we reversed the judgment.
An order denying costs " 'falls with a reversal of the judgment on which it is based.' " (Allen v. Smith (2002) 94 Cal.App.4th 1270, 1284.) That is because costs on appeal "are merely incidental to the judgment appealed from." (Purdy v. Johnson (1929)
100 Cal.App. 416, 420-421.) Indeed, in its opening brief, ASIC acknowledges that its right to obtain costs may be impacted by the disposition of D063586.
Accordingly, ASIC's appeal from the Order is moot and must be dismissed.
(Evans v. Southern Pacific Transportation Co. (1989) 213 Cal.App.3d 1378, 1388.)
DISPOSITION
The appeal is dismissed. In the interests of justice, the parties will bear their respective costs on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)
IRION, J.
WE CONCUR:
NARES, Acting P. J.
AARON, J.
Cites, in this corpus
- Allen v. Smith D036608 · 2002-01-23
- Evans v. Southern Pacific Transportation Co. B033144 · 1989-09-15
- Purdy v. Johnson Docket No. 6542. · 1929-08-22