Colavincenzo v. Aloha Pool & Spa CA6

Filed 11/24/14 Colavincenzo v. Aloha Pool & Spa CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

NORMAN J. COLAVINCENZO, H039953 (Monterey County Plaintiff and Appellant, Super. Ct. No. M83809)

v.

ALOHA POOL & SPA et al.,

Defendants and Respondents.

Plaintiff Norman J. Colavincenzo, as Trustee of the Pescadero Point Revocable Directional Title Holding Trust, appeals from the trial court’s orders denying in part his motions to tax costs claimed by defendants Aloha Pool & Spa (Aloha) and Corby Gould Pools, Inc. (Corby). Colavincenzo contends that if his related appeal from the trial court’s orders granting defendants’ motions to dismiss for failure to bring the case to trial within five years results in reversal of those orders, the orders awarding costs must also be reversed. We agree with this contention and reverse the costs orders.

I. Background In 2007, Colavincenzo sued defendants and others for defects in the construction of a pool and spa in Pebble Beach. In 2012, the defendants who had not settled moved to dismiss the case for failure to bring it to trial within five years. The trial court granted

Aloha’s and Corby’s motions and entered orders dismissing the complaint against them with prejudice. Colavincenzo appealed from the trial court’s orders. (Colavincenzo v. Corby Gould Pools, et al. (H039430).) In May 2013, the trial court entered orders awarding $30,870.34 in costs to Aloha and $14,829 in costs to Corby. Colavincenzo filed a separate appeal from the costs orders.

II. Discussion Colavincenzo contends that if we reverse the trial court’s orders dismissing defendants from the underlying action, the orders awarding them costs must also be reversed. We agree. “Except as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.” (Code Civ. Proc., § 1032, subd. (b).)1 “ ‘Prevailing party’ includes . . . a defendant in whose favor dismissal is entered . . . .” (§ 1032, subd. (a)(4).) Here, where dismissals were entered in defendants’ favor, defendants were “prevailing part[ies]” entitled as a matter of right to recover their costs. (§ 1032, subd. (b).) We have now reversed the orders dismissing Aloha and Corby from the case. (Colavincenzo v. Corby Gould Pools, et al. (H039430).) “ ‘An order awarding costs falls with a reversal of the judgment on which it is based.’ [Citations.] ‘[T]he successful party is never required to pay the costs incurred by the unsuccessful party.’ [Citation.] ‘After reversal of a judgment “the matter of trial costs [is] set at large.” ’ [Citation.]” (Allen v. Smith (2002) 94 Cal.App.4th 1270, 1284 (Allen).) It follows that the costs orders must also be reversed. (Ibid.)