Filed 3/2/20 Fudge v. City of Laguna Beach 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

MARK FUDGE,

Plaintiff and Respondent,

v.

CITY OF LAGUNA BEACH et al.,

Defendants and Appellants;

LAGUNA BEACH GOLF AND

BUNGALOW VILLAGE, LLC,

Real Party in Interest and Appellant.

G056939

(Super. Ct. No. 30-2016-00884488)

O P I N I O N
Appeal from a postjudgment order of the Superior Court of Orange County, William D. Claster, Judge. Reversed.

Rutan & Tucker, and Philip D. Kohn for Appellants the City of Laguna Beach, the Laguna Beach City Council, the Laguna Beach Planning Commission and Sue Kempf.

Nossaman, Steven H. Kaufmann, and Jennifer L. Meeker for Appellant Laguna Beach Golf and Bungalow Village, LLC.

King & Spaulding, Peter Hsiao, and Matthew L. Hofer for Respondent Mark Fudge.

This appeal challenges an order awarding attorney fees to respondent pursuant to the private attorney general doctrine. (Code Civ. Proc., § 1021.5.) In Fudge v. City of Laguna Beach et al. (Nov. 15, 2019, G056403) [nonpub. opn.] (Fudge #1), we reversed the judgment on which the attorney fee award was based. Accordingly, we now reverse the order awarding attorney fees as well.

I.

FACTS AND PROCEDURE

The underlying facts are set forth in our opinion in Fudge #1, supra, G056403 and we need not repeat them here. Suffice to say that after the trial court entered judgment largely in respondent’s favor, it awarded respondent $126,850 in attorney fees pursuant to Code of Civil Procedure section 1021.5. We reversed the judgment in Fudge #1, supra, G056403. The Supreme Court denied review and our decision is now final.

II.

DISCUSSION

It is well settled that when an appellate court reverses an underlying judgment, an award of attorney fees under Code of Civil Procedure section 1021.5 premised on that judgment must also be reversed. (Klajic v. Castaic Lake Water Agency (2004) 121 Cal.App.4th 5, 16; National Parks & Conservation Assn. v. County of Riverside (2000) 81 Cal.App.4th 234, 238-239; City of Sacramento v. State Water Resources Control Bd. (1992) 2 Cal.App.4th 960, 978-979.) The attorney fee award falls along with the underlying judgment because the party that received the award is no longer a successful party for purposes of Code of Civil Procedure section 1021.5. (City of Sacramento v. State Water Resources Control Bd., supra, at p. 979.) Accordingly, the order awarding attorney fees to respondent under the private attorney general doctrine must be reversed and we need not address the parties’ contentions regarding the propriety of the award in the first place.

The current appeal became fully briefed and oral argument was requested before we issued our opinion in Fudge #1, supra, G056403. Appellants subsequently filed a motion for summary reversal of the attorney fees order in view of the reversal of the underlying judgment for respondent. Respondent agreed that in view of the finality of our opinion in Fudge #1, supra, G056403, the court could issue its decision in this appeal based upon the briefing and without oral argument. We deemed oral argument waived and submitted the matter for decision. Because that matter was already fully briefed and has been submitted for decision, the summary reversal procedure is unnecessary. (See Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2019) ¶ 5:82, p. 5-34 [inherent authority to grant summary reversal without briefing].)

III.

DISPOSITION

The order awarding attorney fees is reversed. Appellants are awarded their costs on appeal. Appellants’ separate joint motion for a summary reversal is denied as moot.

ARONSON, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

IKOLA, J.