Via Appia v. Marcus & Millichap Real Estate Investment etc. CA5 ( 2022 )

Filed 10/25/22 Via Appia v. Marcus & Millichap Real Estate Investment etc. CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
VIA APPIA, LLC,
F081598
Plaintiff and Appellant,
(Super. Ct. No. 10684)
v.
MARCUS & MILLICHAP REAL ESTATE OPINION
INVESTMENT SERVICES, INC. et al.,
Defendants and Respondents.
APPEAL from an order of the Superior Court of Mariposa County. F. Dana
Walton, Judge.
Newmeyer & Dillion, Alan H. Packer and Brandon A. Clouse; The Ware Practice
Group, Mindy L. Ware and James Ware for Plaintiff and Appellant.
Neumiller & Beardslee, Paul N. Balestracci and Ricardo Z. Aranda for Defendants
and Respondents.
-ooOoo-
MEMORANDUM OPINION1
Plaintiff Via Appia, LLC appeals from a postjudgment order awarding attorney
fees to defendants Marcus & Millichap Real Estate Investment Services, Inc., Ronald
1 This matter is proper for disposition by a memorandum opinion in accordance
with the California Standards of Judicial Administration, Standard 8.1. (See People v.
Garcia (2002) 97 Cal.App.4th 847, 850–855 [use of memorandum opinions]; Cal. Const.,
art. VI, § 14 [appellate decisions “shall be in writing with reasons stated”].
Swim and Earle Hyman (collectively, Brokers) after the superior court granted Brokers’
motion for summary judgment and entered judgment in their favor. The judgment was
entered in October 2019 and the order awarding attorney fees in the sum of $287,706.46
was filed in July 2020. The award was made pursuant to an attorney fees provision in the
exclusive representation agreement executed by Via Appia and Brokers.
In case No. F080496, we reversed the judgment, concluding there were triable
issues of material fact as to whether Brokers’ allegedly wrongful conduct was a
substantial factor in causing Via Appia to incur expenses it would not have otherwise
incurred. Based on the reversal of the judgment, it necessarily follows that Brokers have
lost their status as the prevailing party and, thus, are not presently entitled to any award of
attorney fees. (Shirvanyan v. Los Angeles Community College Dist. (2020) 59
Cal.App.5th 82, 107.) Accordingly, the trial court’s order awarding attorney fees to
Brokers also must be reversed. (Allen v. Smith (2002) 94 Cal.App.4th 1270, 1284 [award
of attorney fees to the party prevailing will not stand after reversal of the judgment];
Merced County Taxpayers’ Assn. v. Cardella (1990) 218 Cal.App.3d 396, 402, [an order
awarding attorney fees “falls with a reversal of the judgment on which it is based”].)
DISPOSITION
The order awarding attorney fees to Brokers is reversed. Via Appia, LLC shall
recover its costs on appeal.
FRANSON, J.
WE CONCUR
HILL, P. J.
LEVY, J.