McMillin Companies v. American Safety Indemnity CA4/1 ( 2015 )

Filed 1/22/15 McMillin Companies v. American Safety Indemnity CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
MCMILLIN COMPANIES, LLC, D065298
Plaintiffs and Respondents,
v. (Super. Ct. No. 37-2009-00083837-
CU-IC-CTL)
AMERICAN SAFETY INDEMNITY
COMPANY,
Defendant and Respondent.
APPEAL from an order of the Superior Court of San Diego County, Judith F.
Hayes, Judge. Appeal dismissed.
Wilson, Elser, Moskowitz, Edelman & Dicker, Gregory D. Hagen and John R.
Clifford for Defendant and Appellant.
Law Offices of Greg J. Ryan, Greg J. Ryan and Debbie H. Kim for Plaintiffs and
Respondents.
Defendant American Safety Indemnity Company (ASIC) appeals from a
postjudgment order of the superior court granting a motion to strike ASIC's memorandum
of costs ("Order"). The judgment that preceded ASIC's memorandum is the subject of
another appeal in this court, decided this same date, McMillin Cos., LLC v. American
Safety Indemnity Co., No. D063586 (D063586). In D063586, we reversed the judgment.
An order denying costs " 'falls with a reversal of the judgment on which it is
based.' " (Allen v. Smith (2002) 94 Cal. App. 4th 1270, 1284.) That is because costs on
appeal "are merely incidental to the judgment appealed from." (Purdy v. Johnson (1929)
100 Cal. App. 416, 420-421.) Indeed, in its opening brief, ASIC acknowledges that its
right to obtain costs may be impacted by the disposition of D063586.
Accordingly, ASIC's appeal from the Order is moot and must be dismissed.
(Evans v. Southern Pacific Transportation Co. (1989) 213 Cal. App. 3d 1378, 1388.)
DISPOSITION
The appeal is dismissed. In the interests of justice, the parties will bear their
respective costs on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)
IRION, J.
WE CONCUR:
NARES, Acting P. J.
AARON, J.
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