Law Offices of Daniel W. Smith and Daniel W. Smith for Plaintiff and Appellant. Jarvis, Fay, Doporto & Gibson and Rick W. Jarvis for Defendants and Appellants.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 680381)
APPEAL from a judgment of the Superior Court of Stanislaus County. Roger M. Beauchesne, Judge. Law Offices of Daniel W. Smith and Daniel W. Smith for Plaintiff and Appellant. Jarvis, Fay, Doporto & Gibson and Rick W. Jarvis for Defendants and Appellants.
The appeal and cross-appeal herein relate to attorneys' fees awarded pursuant to Code of Civil Procedure section 1021.5 in the litigation underlying an appeal we decided previously, North Modesto Groundwater Alliance v. City of Modesto (Jan. 13, 2017, F072165) [nonpub. opn.]. In that decision, we reversed a judgment on the merits in favor of plaintiff. The trial court had awarded attorneys' fees to plaintiff, but the issue of attorneys' fees was not included in the prior appeal. Instead, plaintiff filed the present appeal from the attorneys' fees order, arguing that a larger amount should have been awarded. Defendants then filed a cross-appeal, arguing that no attorneys' fees should have been awarded. The remittitur has now been issued in the prior appeal.
As explained in our order filed April 19, 2017, defendants filed a motion requesting that we (1) summarily decide their cross-appeal in their favor, reversing the fee award; and (2) dismiss plaintiff's appeal as moot. Plaintiff did not file any opposition. Observing that the predicate for the attorneys' fees award (i.e., the judgment for plaintiff on the merits) no longer existed, we invited plaintiff to submit a brief within 20 days showing why the requested relief should not be granted, in default of which we could issue an opinion granting it. The 20-day deadline has passed and plaintiff has filed no brief. Accordingly, we will grant the relief sought by defendants' motion.
The award of attorneys' fees ordered by the trial court is reversed. Plaintiff's appeal seeking a larger award is dismissed. Defendants are awarded costs on appeal.
SMITH, J. WE CONCUR: /s/_________
HILL, P.J. /s/_________