Opinion
Page 562a
160 Cal.App.4th 562a __ Cal.Rptr.3d__ NORTHWEST ENERGETIC SERVICES, LLC, Plaintiff and Respondent, v. CALIFORNIA FRANCHISE TAX BOARD, Defendant and Appellant. A114805, A115841, A115950 California Court of Appeal, First District, Fifth Division March 3, 2008San Francisco County Super. Ct. No. CGC-05-437721
THE COURT.It is ordered that the opinion filed herein on January 31, 2008 (159 Cal.App.4th 841; ___Cal.Rtpr.3d ___), be modified as follows:
On page 40 [159 Cal.App.4th 880, advance report, 3d full par., line 26] of the opinion, the following is added to the end of the first paragraph, before footnote 22: "To the extent Northwest contends that an exceptional effort on the part of counsel resulted in an exceptional benefit (Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553, 582 [21 Cal.Rptr.3d 331, 101 P.3d 140]), the trial court did not adequately set forth any basis for such a conclusion. (See Thayer v. Wells Fargo Bank, supra, 92 Cal.App.4th at pp. 838-839.)"
On page 43 [159 Cal.App.4th 882, advance report, fn. 23] of the opinion, footnote 23 is deleted and replaced with the following footnote 23: "Northwest also requests an award of fees in this appeal. Northwest is entitled to attorney fees in appeal number Al 14805, in which it successfully defended the judgment on the merits. The trial court shall award such fees, in an amount in its discretion, upon remand. Northwest is not entitled to attorney fees in appeal numbers Al 15841 and Al 15950, in light of our reversal of the attorney fees order."
On page 43 [159 Cal.App.4th 883, advance report, 1st full par., line 4], the Disposition is modified by deleting the sentence, "Each party shall bear its own costs on appeal." and replaced with the sentences "Respondent shall recover its costs and attorney fees on appeal in appeal number Al 14805. Appellant shall recover its costs on appeal in appeal numbers Al 15841 and A115950."
This modification effects a change in the judgment.