White and Yellow Cab v. Orange Cty. Bd. of Supervisors CA4/3

Filed 10/9/13 White and Yellow Cab v. Orange Cty. Bd. of Supervisors CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

A WHITE AND YELLOW CAB, INC.,

Plaintiff and Appellant, G047250

v. (Super. Ct. No. 30-2008-00116818)

ORANGE COUNTY BOARD OF OPINION SUPERVISORS,

Defendant and Respondent.

Appeal from a judgment of the Superior Court of Orange County, Derek W. Hunt, Judge. Reversed. Cazzell & Associates and Maryann Cazzell for Plaintiff and Appellant. Michaelis, Montanari & Johnson and Wesley S. Wenig for Defendant and Respondent.

* * *

A White and Yellow Cab, Inc. (AWYC), appeals an award of $18,000 in attorney fees to the Orange County Board of Supervisors (Board). The fee award arose out of attorney fees incurred by the Board during a prior appeal. (See A White & Yellow Cab, Inc. v. Orange County Board of Supervisors (July 27, 2011, G043209) [nonpub. opn.] (AWYC I).) Because the Board “did not ‘prevail’ on appeal” in AWYC I, we reverse. (Maughan v. Google Technology, Inc. (2006) 143 Cal.App.4th 1242, 1254 (Maughan).)

FACTS

In AWYC I, AWYC appealed the court’s grant of the Board’s motion under Code of Civil Procedure section 415.16 — the anti-SLAPP (strategic lawsuit against 1 public participation) statute. The Board cross-appealed the amount of costs and attorney fees awarded by the court pursuant to section 425.16, subdivision (c)(1). We affirmed, holding that (1) the court rightly granted the anti-SLAPP motion and (2) the court did not abuse its discretion by refusing to award the Board all of its requested fees and costs. Our disposition of the appeal stated, “In the interests of justice, the parties shall bear their own costs on appeal.” The remittitur issued on September 27, 2011, and it likewise indicated, “Each party to bear own costs.” On March 8, 2012, the Board moved for relief under section 473, subdivision (b), noting counsel failed to file a timely motion for attorney fees incurred on appeal (i.e., within 40 days of notice of issuance of the remittitur pursuant to Cal. Rules of Court, rules 3.1702(c)(1) and 8.278(c)(1)). The basis for the motion was counsel’s allegedly mistaken initial reading and understanding of AWYC I. Counsel stated in his