Opinion
H046008
12-09-2020
CILKER APARTMENTS, LCC, Plaintiff, Cross-complainant and Respondent, v. MADERA FRAMING, INC., Defendant, Cross-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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. 113CV258281)
In 2004, Madera Framing, Inc. (Madera Framing), Cilker Apartments, LLC (Cilker Apartments), and other companies that were involved in a construction project signed a settlement agreement to resolve a civil lawsuit filed by Madera Framing. Subsequently, in 2013, plaintiff Cilker Apartments filed the instant construction defect lawsuit against defendant Madera Framing and others regarding the same construction project. Another defendant in the second lawsuit, Western National Construction, filed a cross-complaint against Madera Framing. Madera Framing obtained summary judgment on the complaint and cross-complaint on the ground that the construction defect claims fell within the release of claims in the earlier 2004 settlement agreement. This court determined that the trial court properly granted summary judgment in Madera Framing's favor because the release of claims in the 2004 settlement agreement barred the claims in the complaint and cross-complaint. (Cilker Apartments, LLC v. Madera Framing, Inc. (Nov. 19, 2019, H043824) [nonpub. opn.], pp. 16, 29 (Cilker Apartments).)
We take judicial notice of this court's opinion in the earlier appeal. --------
Relevant to the pending appeal, after prevailing on summary judgment in the construction defect lawsuit, Madera Framing sought $544,018.50 in attorney's fees and $71,800.64 in costs, based on a fees and costs provision in the parties' construction subcontract. The trial court denied the request on the ground that the earlier 2004 settlement agreement barred the claim for fees and costs. In the pending appeal, Madera Framing contends that the trial court erred, and that it is entitled to attorney's fees and costs as the prevailing party under Civil Code section 1717 and Code of Civil Procedure section 1032.
The pending appeal by Madera Framing was filed on June 20, 2018. Recently, on December 4, 2020—long after the filing of the appellate record, and after (1) completion of all briefing, (2) this court having expended significant time and resources on the case (see Fox Searchlight Pictures, Inc. v. Paladino (2001) 89 Cal.App.4th 294, 300, fn. 4), and (3) the scheduling of oral argument on December 10, 2020— Madera Framing and Cilker Apartments notified this court that the parties had reached an agreement to settle the case. Thereafter, on December 8, 2020, Madera Framing filed a request for dismissal of the appeal, which Cilker Apartments also signed. Determining the request to be in the best interests of the parties and in the interests of justice, we exercise our discretion to grant the parties' request to dismiss. (See Cal. Rules of Court, rule 8.244(c)(2).)
DISPOSITION
The appeal filed by Madera Framing is dismissed. The remittitur shall issue forthwith.
/s/_________
BAMATTRE-MANOUKIAN, J. WE CONCUR: /s/_________
GREENWOOD, P.J. /s/_________
DANNER, J.