Filed 2/18/20 1041 20th Street, LLC v. Santa Monica Rent Control CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

1041 20TH STREET, LLC,

Plaintiff and Appellant,

v.

SANTA MONICA RENT CONTROL BOARD,

Defendant and Appellant.

B295812

(Los Angeles County

Super. Ct. No. SS028966)

APPEALS from a postjudgment order of the Superior Court of Los Angeles County, Lawrence H. Cho, Judge. Dismissed in part, reversed in part.

No appearance by Plaintiff and Appellant.

Santa Monica Rent Control Board and J. Stephen Lewis; Best Best & Krieger, John C. Cotti and Gregg W. Kettles for Defendant and Appellant.

Plaintiff 1041 20th Street, LLC (20th Street Owner) and defendant the Santa Monica Rent Control Board (Board) each appeal from an order granting plaintiff’s motion for attorney fees in part. 20th Street Owner had prevailed before the trial court on its petition for a writ of administrative mandate, as discussed in 1041 20th Street, LLC v. Santa Monica Rent Control Bd. (2019) 38 Cal.App.5th 27 (1041 20th Street).

20th Street Owner subsequently filed a motion for attorney fees pursuant to Government Code section 800 and Code of Civil Procedure section 1021.5. The trial court denied the motion with respect to Code of Civil Procedure section 1021.5, finding “[20th Street Owner’s] victory did not confer a significant benefit on a substantial number of persons . . . .” The court granted the motion with respect to Government Code section 800, finding the Board’s “decision to renege on its permanent removal of the property” was capricious. The court awarded 20th street Owner attorney fees in the amount of $7,500. Both parties appealed the court’s award of fees. While this appeal was pending, we published our opinion in 1041 20th Street, supra, 38 Cal.App.5th 27, which reversed the judgment granting 20th Street Owner’s writ petition. (Id. at p. 46.)

20th Street Owner failed to timely file its opening brief. On November 22, 2019, plaintiff was notified pursuant to rule 8.220(a) of the California Rules of Court that its appeal would be dismissed if plaintiff failed to file a brief within 15 days. Plaintiff did not file a brief. Accordingly, its appeal is dismissed.

As to the Board’s appeal, we will reverse the order awarding attorney fees. Government Code section 800, subdivision (a) allows the award of attorney fees to a prevailing party. Pursuant to our opinion in 1041 20th Street, supra, 38 Cal.App.5th 27, plaintiff is no longer a prevailing party in the underlying action. (Id. at p. 46.) Thus, plaintiff is not entitled to attorney fees pursuant to Government Code section 800.

DISPOSITION

Plaintiff’s appeal is dismissed. The postjudgment order granting in part the motion for attorney fees is reversed. The Board is entitled to recover its costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KIM, J.

We concur:

BAKER, Acting P. J.

MOOR, J.