Filed 11/24/14 Colavincenzo v. Aloha Pool & Spa CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

NORMAN J. COLAVINCENZO,

Plaintiff and Appellant,

v.

ALOHA POOL & SPA et al.,

Defendants and Respondents. H039953 (Monterey County Super. Ct. No. M83809)

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 d efendants 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

. T he trial court granted2

Aloha’s and C orby’s motions and entered orders dismissing the complaint against them
with prejudice. Colavincenzo appeal ed from the trial court’s orders. ( Colavincenzo v.
Corby Gould Pools, et al. (H039430).)

In May 201 3 , the trial court entered orders award ing $30,870.34 in costs to Aloha

and $14,829 in costs to Corby

. Colavincenzo filed a separate appeal from the cost s

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 recov er 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.4t h 1270, 1284 ( Allen ) .) It follows that the costs orders must

also be reversed. ( Ibid .)

1 Subsequent statutory references are to the Code of Civil Procedure unless otherwise noted.3

Corby maintains that this appeal is “unnecessary and unwarranted” because Allen
“is dispositive of the issue.” Corby base s its argument on a statement in Allen that it
quotes out of context. Its reliance on th at statement is misplaced.

In Allen , the court observed that “[a]n appellate court ha s no jurisdiction to review
an award of attorney fees made after entry of judgment, unless the order is separately
appealed.” (

Allen

, supra , 94 Cal.App.4th at p. 1284.) The plaintiff in Allen did not
separately appeal the order awarding the defendant his attorney’s fees and costs . ( Ibid. )

Because the Allen court lacked jurisdiction to review the order, it did not reverse it b ut
instead directed the trial court to do so on remand. ( Ibid. ) The situation here is different.
Colavincenzo separately appealed from the trial court’s orders awarding costs to Aloha
and Corby

. Thus, w e have jurisdiction to review and to reverse them. We reject Corby’s

contention that we should dismiss this appeal.
We likewise reject Corby’s contention that we should issue an order to show cause
why sanctions should not be awarded for the filing of a “ frivolous ” appeal. We see no

basis for an award of sanctions. “ ‘ When a party wishes to challenge both a final
judgment and a postjudgment costs /attorney fee order, the normal procedure is to file two

separate appeals : one from the final judgment, and a second from the postjudgment

order. ’ [Citation .]” ( Torres v. City of San Diego (2007) 154 Cal.App.4th 214, 222

. )
Colavincenzo properly did so here . ( E.g., Merced County Taxpayers Assn. v. Cardella
(1990) 218 Cal.App.3d 396, 401

- 402.)

III. Disposition
The trial court’s May 3, 2012 orders awarding costs to Aloha and Corby are

reversed

.4 ___________________________ Mihara, J.

WE CONCUR:

_____________________________ Premo , Acting P. J.

_____________________________ Elia , J.