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Scott Co. of California v. United States Fidelity & Guaranty Ins. Co.

Court of Appeals of California, Sixth District.
Nov 3, 2003
H023067 (Cal. Ct. App. Nov. 3, 2003)

Opinion

H023067.

11-3-2003

SCOTT CO. OF CALIFORNIA, Plaintiff and Appellant, v. UNITED STATES FIDELITY & GUARANTY INSURANCE COMPANY, et al., Defendants and Respondents.


In a prior appeal (H022467), plaintiff Scott Company (Scott) achieved partial success in its challenge of a summary judgment entered in favor of a contractors sureties. We reversed the judgment and remanded the case for trial or other disposition of Scotts 10th cause of action for a claim on a payment bond.

This appeal arises from the post-judgment order awarding costs and attorney fees to the sureties. Scott contends that the order is void because its motion to strike or tax costs was heard by a different judge than the one who ordered summary judgment, without notice or explanation of the substitution. Scott further asserts an undisclosed relationship between Judge Bryan, who heard the postjudgment matter, and a defendant in the original action involving Scott and the contractor.

On July 25, 2003, we issued an order to show cause why the present appeal is not moot, since the underlying judgment was reversed and our opinion in H022467 is now final. Scott responded by requesting that we vacate the costs order instead of dismissing the appeal. Scott is concerned that dismissal might "prompt improper mischief from the Sureties, which may claim that due to the `dismissal of an appeal of an order in their favor, that they are the prevailing parties— which clearly is erroneous in light of the reversal on the merits."

We decline to speculate about the litigation tactics— mischievous or otherwise— that the sureties might take in the future. We will instead presume that no responsible attorney would waste his or her clients resources by taking a "clearly . . . erroneous" approach on a matter such as this. We therefore agree with Scotts statement in its opening brief, in which it stated, "Obviously, if the Court agrees with Scotts appeal on the merits that the Sureties are not entitled to summary judgment, then this whole appeal is moot as `an order awarding costs falls with a reversal of that part of the judgment upon which it is based. (Purd[y] v. Johnson (1929) 100 Cal.App. 41[6], 420-421.)" (See Allen v. Smith (2002) 94 Cal.App.4th 1270, 1284 [costs award is set at large upon reversal of underlying judgment].) Reversal of the underlying judgment has already operated to vacate the award of costs. (Evans v. Southern Pacific Transportation Co. (1989) 213 Cal.App.3d 1378, 1388; cf. Pico Citizens Bank v. Tafco, Inc. (1959) 165 Cal.App.2d 739, 749 [appeal from order denying motion to tax costs dismissed as moot with reversal of underlying judgment].)

Disposition

The appeal is dismissed as moot. The parties shall bear their own appellate costs.

WE CONCUR Premo, Acting P. J. and Bamattre-Manoukian, J. --------------- Notes: The remittitur in H022467 was issued on July 22, 2003.


Summaries of

Scott Co. of California v. United States Fidelity & Guaranty Ins. Co.

Court of Appeals of California, Sixth District.
Nov 3, 2003
H023067 (Cal. Ct. App. Nov. 3, 2003)
Case details for

Scott Co. of California v. United States Fidelity & Guaranty Ins. Co.

Case Details

Full title:SCOTT CO. OF CALIFORNIA, Plaintiff and Appellant, v. UNITED STATES…

Court:Court of Appeals of California, Sixth District.

Date published: Nov 3, 2003

Citations

H023067 (Cal. Ct. App. Nov. 3, 2003)