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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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, 

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 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 
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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.)

 

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Subsequent statutory references are to the Code of Civil Procedure unless 

otherwise noted.
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Corby maintains that this appeal is “unnecessary and unwarranted” because Allen 

“is dispositive of the issue.” Corby bases its argument on a statement in Allen that it 

quotes out of context. Its reliance on that statement is misplaced.

In Allen, the court observed that “[a]n appellate court has 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 but 

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, we 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.
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___________________________

Mihara, J.

WE CONCUR:

_____________________________

Premo, Acting P. J.

_____________________________

Elia, J.