Hoover Community Hotel Development Corp. v. Thomson

Opinion

ROTH, P. J.

In December of 1982, respondents Michael Thomson, S. Joseph Spence, Bruce Gelker and L. Wayne Gertmenian filed motions for summary judgment in the underlying action herein. Those motions were heard on February 3, 1983, and a final judgment granting the relief requested was made and entered on the following March 4. One week later, i.e., on March 11, 1983, appellant Hoover Community Hotel Development Corporation filed its notice of appeal from the judgment.

1

On March 25, 1983, respondents filed their memorandum of costs and disbursements, wherein, together with certain customary costs to the extent of some $810, they claimed the sum of $38,370 as attorney’s fees pursuant

[487]

to the terms of a contract involved in the suit. Appellant moved to strike the memorandum but, after hearing, that motion was denied and respondents were awarded their disbursements, as well as the attorney’s fees, which were recoverable as costs under Civil Code section 1717.

2

A further appeal (see fn. 1) was then taken from this determination. We affirm.

What is first maintained here is that the trial court, owing to the fact of the appeal from the summary judgment, was divested of jurisdiction so as to be without power to act upon the request for costs, pursuant to Code of Civil Procedure section 916 which specifies in pertinent part that:

“(a)

... the perfecting of an appeal stays proceedings in the trial court upon the judgment or order appealed from or upon the matters embraced therein or affected thereby, including enforcement of the judgment or order, but the trial court may proceed upon any other matter embraced in the action and not affected by the judgment or order.”

We are satisfied, however, that the matter of costs, though embraced in the action, was not affected by the summary judgment as contemplated by the statute, but was instead incidental to the merits of the cause being tested on the initial appeal, in such fashion as to allow the trial court to make its award as a permissible, if arguably premature, disposition of an ancillary issue. (See