Zeppenfeld v. Reilley CA1/4

Filed 6/30/14 Zeppenfeld v. Reilley CA1/4 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FOUR

DON ZEPPENFELD et al., Plaintiffs and Respondents, A138668 v. MARTIN REILLEY, (Sonoma County Super. Ct. No. SCV 226091) Defendant and Appellant.

Martin Reilley purports to appeal from a “final judgment after remand” entered on March 19, 2013, though the appeal seeks to review an order denying attorney fees entered more than a year earlier on February 6, 2012. Don and Kathy Zeppenfeld (respondents) have moved for sanctions and attorney fees, contending that the appeal is frivolous. We dismiss the appeal and remand the matter to the trial court for a determination of the amount of attorney fees to be awarded on appeal. I. PROCEDURAL BACKGROUND We have previously set forth the underlying facts in this action in Zeppenfeld v. Reilley (Dec. 21, 2007, A110461 [nonpub. opn.]. In summary, we affirmed the jury verdict in favor of respondents on their fraud cause of action against Reilley which arose in connection with the construction of a new home in Santa Rosa. In addition, we reversed the trial court’s order granting Reilley’s motion for summary adjudication of respondents’ causes of action for breach of contract and breach of express warranty, concluding that there were triable issues of fact on whether the contract between the parties encompassed an agreement to repair leaks on the property, whether repairs were

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warranted and whether the warranties were disclaimed by the contract. We therefore remanded the matter for further proceedings. This court issued the remittitur in the action on April 25, 2008. Respondents proceeded to make attempts to execute on the judgment. They abandoned their contractual causes of action. On August 1, 2008, the trial court notified the parties that all trial exhibits would be destroyed pursuant to Code of Civil Procedure section 1952 unless either party requested preservation of the exhibits or made arrangements to withdraw them. Counsel for respondents assumed that the court would thereafter close its file. Instead, on May 12, 2011, Reilley moved for mandatory dismissal of the action pursuant to Code of Civil Procedure section 583.320, subdivision (a)(3), for failure to bring the matter to trial within three years of the filing of the remittitur. Respondents opposed the motion and filed a request for voluntary dismissal with prejudice of the contract and warranty causes of action. On July 14, 2011, the trial court granted Reilley’s motion, and ordered the breach of contract and breach of express warranty causes of action dismissed with prejudice pursuant to section 583.320, subdivision (a)(3). On September 15, 2011, Reilly moved for attorney fees contending that he was entitled to an award of attorney fees because he was successful in the defense of the contract causes of action in respondents’ complaint. The trial court denied the motion. It found that it was bound by Judge Champlin’s August 16, 2005 ruling that respondents were the prevailing party under a broad contractual clause for attorney fees. 1 The court noted that “Judge Champlin impliedly found the work on the various causes of action to be too intertwined for segregation.” On February 10, 2012, the court entered notice of entry of the order denying Reilley’s motion for attorney fees. On March 19, 2013, the court, upon Reilley’s request, entered a “Final Judgment After Remand” setting forth the judgment, attorney fees, and costs order entered in favor of respondents in 2005, the 2011 order dismissing the contract causes of action that were