Opinion
B165055.
10-31-2003
RAFAEL CHODOS, Plaintiff and Respondent, v. HOWARD J. GORIN, Defendant and Appellant.
Howard J. Gorin, in pro. per., for Defendant and Appellant. Rafael Chodos, in pro. per., for Plaintiff and Respondent.
Defendant Howard Gorin, an attorney, prevailed in the trial court on his special motion to strike the malicious prosecution complaint of plaintiff Rafael Chodos, also an attorney. Gorin then filed a motion for attorneys fees and costs pursuant to Code of Civil Procedure section 425.16, subdivision (c) (section 425.16(c)). On December 17, 2002, the trial court awarded Gorin some of his costs but denied his request for attorneys fees on the ground that he incurred no such fees because he was representing himself in propria persona. Gorin appeals from that portion of the order denying his request for attorneys fees. We dismiss the appeal because our disposition in a companion appeal has rendered this one moot. (See Chodos v. Gorin (October 31, 2003, B163447) [nonpub. opn.].)
DISCUSSION
Chodos sued Gorin for malicious prosecution of an underlying action in which Gorin represented the plaintiff. The trial court granted Gorins special motion to strike the action for malicious prosecution and Chodos appealed. Pursuant to section 425.16(c), Gorin filed a motion for $32,460 in attorneys fees and $4,156 in costs. After Chodos filed opposition to the motion and after a hearing on the motion, the court awarded Gorin some of his costs but denied his request for attorneys fees on the ground that an attorney litigating in propria persona does not incur attorneys fees within the meaning of section 425.16(c). Gorin filed this appeal from the order denying his request for attorneys fees.
Although the appeal by Chodos was not consolidated with this appeal by Gorin, both appeals were heard together. In the concurrent appeal by Chodos, we reverse the order granting the special motion to strike and remand the matter with directions to the trial court to deny Gorins motion. (Chodos v. Gorin, supra, B163447 at p. 14.) Because the order granting the special motion to strike is being reversed, Gorin is no longer a prevailing party and he is not entitled to costs or attorneys fees. (See Giles v. Horn (2002) 100 Cal.App.4th 206, 241 [order awarding attorneys fees falls with a reversal of judgment on which it is based].) The December 17, 2002 order is set aside or vacated by operation of law. (Ibid.; see also GAB Business Services, Inc. v. Lindsey & Newsom Claim Services, Inc. (2000) 83 Cal.App.4th 409, 429.) As the December 17, 2002 order is being set aside, this appeal is moot and is subject to dismissal on that basis. (Ibid.)
DISPOSITION
The appeal is dismissed. The parties are to bear their own costs on appeal.
We concur: SPENCER, P. J. and ORTEGA, J.