Opinion
A150779
10-04-2018
ROBERTO DAVILA, Plaintiff and Respondent, v. JAMES DERBY ET AL., Defendants, Cross-complainants and Appellants. NAVAJO PIPELINE, INC., Cross-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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. HG13708711)
DeSilva Gates Construction, L.P. (DeSilva Gates) appeals from a post-judgment order awarding attorney fees to respondent Navajo Pipeline, Inc. (Navajo). We will reverse the order.
I. MEMORANDUM OPINION
The trial court's judgment in this case ordered, among other things, that DeSilva Gates take nothing on its cross-complaint against Navajo and that Navajo, as the prevailing party, recover its costs from DeSilva Gates in an amount to be determined. DeSilva Gates appealed from the judgment (appeal number A149631). In addition, Navajo obtained a post-judgment order awarding attorney fees in the amount of $203,606.40, as a form of costs to Navajo as the prevailing party on the cross-complaint. The post-judgment order is the subject of this appeal.
In May 2018, we issued our decision in appeal number A149631, reversing the judgment in its entirety. Our remittitur issued in August 2018.
On September 12, 2018, we issued an order in this case, setting forth the foregoing procedural history, noting our view that there appears to be no basis for the trial court's order since the judgment entitling Navajo to costs as a prevailing party was reversed, and expressing our intention to reverse the trial court's attorney fee award in a memorandum opinion. Our order further provided: "Within 10 calendar days from the date of this order, any party to this appeal may file and serve a letter brief of no more than two single-spaced pages, (1) addressing our intended reversal in this appeal and (2) stating whether the party maintains its request for oral argument. If a party does not timely file a letter brief, the court will assume that the party does not object to the proposed reversal and withdraws its request for oral argument."
Within the time allotted, we received a letter brief on behalf of DeSilva Gates (and James Derby) agreeing with our proposed reversal and withdrawing DeSilva Gates's request for oral argument unless Navajo requested oral argument. We did not receive a letter brief from Navajo and, pursuant to our order, conclude that Navajo does not object to the proposed reversal and withdraws its request for oral argument. There is, therefore, no pending request for oral argument in this matter or objection to entry of the reversal of the order on appeal.
II. DISPOSITION
The order is reversed.
/s/_________
NEEDHAM, J. We concur. /s/_________
SIMONS, ACTING P.J. /s/_________
BRUINIERS, J.