Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from an order of the Superior Court of Los Angeles County No. SC061518. Gerald Rosenberg, Judge.
Robert S. Gerstein for Defendants and Appellants.
Liner Yankelevitz Sunshine & Regenstreif and David M. Cohen for Plaintiffs and Respondents.
ZELON, J.
This case returns to this court after remand for the sole purpose of determining the amount of recoverable costs on appeal. Despite the limits on the remand, the parties placed before the trial court significant issues pertaining to attorney’s fees relating to the underlying litigation. Finding the award of costs within the discretion of the court on our remand, we affirm.
FACTUAL BACKGROUND
This case first came to this court on appeal from the entry of a default judgment in the trial court. Determining that the court below, having previously dismissed the case, was without power to enter that judgment, on March 22, 2006, this court reversed the judgment and ordered that appellants recover their costs on appeal. On remand, defendants and appellants Alp Aslan and Muzaffer Aslan sought attorney’s fees and costs for the entire litigation, asserting they were the prevailing parties. Plaintiffs and respondents Stephanie Davis and James Prince opposed the motion, asserting both that this court’s remand did not permit the award sought and that the merits of the matter did not support an award. On September 7, 2006, the trial court issued its tentative ruling in the matter, indicating it had the authority to consider the motion, and ordering further filings, to include briefing as to whether costs on appeal included attorney’s fees, and an itemization of the fees and costs incurred during the appeals process.
Asserting that they were the prevailing parties, and as such entitled to fees as well as costs, appellants resubmitted the entire claim for attorney’s fees submitted earlier, along with itemized costs on appeal; they did not provide the further itemization ordered by the court. Respondents opposed, asserting not only that there was no prevailing party, but also that the amount of fees and costs sought was beyond that permitted by applicable court rules. The trial court found no prevailing party, and awarded costs of $6,278, pursuant to the Rules of Court. Appellants filed this timely appeal.
The court appears to have found the fees information submitted on the initial motion insufficient as an itemization of fees on appeal.
DISCUSSION
Appellants urge this court to find, as a matter of law, that they were the prevailing parties below, and thus that the trial court erred in finding they were not. We decline to reach that issue, as even were this court to agree with their arguments, they failed to comply with the order of the trial court to itemize their fees for the appeal, instead continuing to seek attorney’s fees for the entirety of the litigation. That assertion was not only inconsistent with the order below, but also inconsistent with the direct mandate of this court that no further proceedings were to be taken in the underlying case, save only the determination of the amount of costs on appeal. As a result, we find no error in the award of costs on appeal alone, and no assertion of any error in the determination of the amount of costs awarded. Accordingly, we affirm.
We note that the parties now find themselves in the position in which they were before the litigation began, in which Davis and Prince could seek arbitration of the dispute between the parties. There has been no determination on the merits of the claims by the trial court or by this court.
DISPOSITION
The award of costs is affirmed. No further proceedings are to be taken in case SC061518. The parties are to bear their own costs on this appeal.
We concur: WOODS, Acting P.J., WILEY, J.
Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.