Filed 6/17/26 Huard v. Eldridge CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
ANDREW LOGAN HUARD, 2d Civ. No. B343022
(Cons. with B345090)
Plaintiff and Respondent, (Super. Ct. No. 56-2017-
00495454-CU-OR-VTA)
v. (Ventura County)
ALAN RICHARD ELDRIDGE,
Defendant and Appellant.
Appellant Alan Richard Eldridge appeals two post-
judgment orders relating to his right to costs and attorney fees
after protracted litigation with respondent Andrew Logan Huard.
We affirm the order denying costs and attorney fees authorized
by contract (Code Civ. Proc.,1 §§ 1032, 1033.5). We find the trial
court lacked jurisdiction to modify a prior order from which
appeals were pending. Lastly, we agree the trial court overlooked
Eldridge’s motion for costs of proof against Huard under section
2033.420 and will remand with directions to decide it.
1 Further undesignated statutory references are to the
Code of Civil Procedure.
FACTUAL AND PROCEDURAL BACKGROUND
Huard’s Complaint Against Eldridge
Eldridge and Huard were friends. They bought a house in
Santa Paula in 2011 as joint tenants. Eldridge agreed to provide
the down payment and closing costs; Huard agreed to pay the
mortgage and taxes. They signed a written agreement giving
Huard a five-year option to purchase Eldridge’s interest in the
house (the agreement). They agreed to sell the property and split
the proceeds if Huard did not exercise the option. The agreement
contained an attorney’s fees provision stating, “In the event that
disputes arise between the Parties resulting in Civil Litigation
the prevailing party is entitled to court costs and or attorney
fees.” Huard used the house as his residence.
The parties’ friendship became strained in 2013. The two
began arguing about whether Huard would receive credit for his
mortgage payments if they sold the house. Huard grew
concerned about what he felt were increasingly frequent visits,
phone calls, and emails from Eldridge. On some occasions he
found Eldridge inside the garage or in the backyard. Huard
petitioned for a civil restraining order. The trial court issued a
two-year restraining order in 2016 requiring Eldridge to keep 100
yards from Huard.2 Huard moved to Santa Barbara County and
they eventually sold the house.
Huard filed this action in 2017. His complaint included
causes of action for intentional and negligent infliction of
emotional distress, invasion of privacy, breach of the covenant of
quiet enjoyment, and stalking. Huard alleged the restraining
order had not stopped Eldridge from continuing to harass and
2 Huard v. Eldridge (Super. Ct. Ventura County, 2016, No.
56-2016-00479595-CU-HR-VTA).
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intimidate him. He sought general damages of $1 million and
treble damages for trespass under Civil Code section 3346.
Bifurcated Trial and Judgment
The court bifurcated trial. It decided Huard’s emotional
distress claims in the first phase, concluding he “failed to produce
any evidence that Eldridge acted in an extreme and outrageous
manner.” The court entered judgment on the first phase in April
of 2022.
The case was reassigned to a different judge for the second
trial phase. The court found Eldridge’s joint tenancy did not give
him “an absolute or unfettered right to enter the premises
whenever he wished” but concluded two of his incursions were
“technical trespasses.” It awarded Huard nominal damages of
$2,500 but found in Eldridge’s favor on the remaining claims.
The court identified Huard as the prevailing party and awarded
him “his statutory costs of suit.”
Huard filed a memorandum of costs totaling $56,583. The
court granted Eldridge’s motion to tax costs. It noted Huard was
the prevailing party “in spite of the nominal damages which were
awarded to him at trial.” It nevertheless struck all but about
$9,000 sought by Huard.
The court entered judgment disposing of all Huard’s causes
of action on May 20, 2024. The judgment stated Huard was the
prevailing party “[f]or the purposes of costs only” but did not
specify the amount of costs. Neither party appealed.
Both Parties File Post-Judgment Motions for Costs and Fees
This appeal concerns three motions filed by the parties
after the court entered judgment. Eldridge filed two of them.
First, he moved for $382,994 under the agreement’s attorney’s
fees and costs provision. He characterized the case as arising
from the agreement because it concerned their dispute over the
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net proceeds of the home sale. Eldridge argued Civil Code section
1717 entitled him to fees because the court found in his favor on
five of six causes of action, then awarded only nominal damages
to Huard for two “technical trespasses”—essentially pennies on
the seven-figure damages figures sought at trial. Second,
Eldridge moved for $371,547 as costs of proof under section
2033.420 because Huard denied many requests for admission
relating to his unsuccessful causes of action.3 Huard filed the
third motion at issue here—a cross-motion for costs of proof
under section 2033.420 seeking $48,433.20.
The court heard all three motions in October of 2024. No
record exists of the oral proceedings except a minute order
stating the parties submitted the matter to the court after
argument. The court denied Eldridge’s motion for contractual
fees and costs in a minute order dated November 5, 2024
(November 5 ruling). It rejected his argument that he was the
prevailing party because Huard only received nominal damages.
“Eldridge does not qualify as the prevailing party,” the court
reasoned, citing section 1032, subdivision (a)(4). “He did not
obtain a monetary recovery, and he was not a defendant in whose
favor a dismissal was granted. The case was not one where
neither plaintiff nor defendant obtained any relief. As such, he
does not qualify as a litigant who is entitled to recover his
attorneys fees as either a prevailing party, or under the language
of the attorneys fees clause in his contract with Huard.”
The court found Eldridge was nevertheless entitled to costs,
albeit under a statute not invoked in his moving papers—section
1033. It wrote, “after listening to the testimony and evidence,
3 When a party denies requests for admissions, the adverse
party may seek costs under section 2033.420 for successfully
proving the issues that should have been admitted.
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[the court] can and does determine that this case should have
been filed as a limited jurisdiction case. Under CCP Section
1033, Eldridge is entitled to his statutory costs of suit, as well as
discovery sanctions he was previously awarded in the amount of
$42,950.00.” The court ordered Eldridge to file a cost bill
“incorporating statutory costs and discovery sanctions within
twenty (20) days . . . .” It did not explain if Eldridge’s costs would
be offset by or reconciled with those awarded to Huard in its May
order. The November 5 ruling concluded with a short passage
denying Huard’s motion for costs of proof under section 2033.420.
The order did not discuss Eldridge’s motion for costs of proof.
The register of actions shows Eldridge filed a memorandum
of costs seeking $92,946.87 on November 21. The record does not
contain the memorandum itself. Neither the record nor register
reflect that Huard moved to tax these costs.
The Court Files Two Minute Orders Attempting
to Clarify the November 5 Ruling
The court filed a sua sponte minute order on December 18
amending the November 5 ruling. It stated: “The Motion for
Costs pursuant to CCP section 2033.420 from Eldridge is denied.”
(Italics added.) The order noted no appearances by the parties.
Eldridge’s counsel appeared ex parte on the morning of
December 20 to clarify the December 18 order. A different
judge—the third—heard the matter. The court stated the
original judge was “running out his time on vacation until his
official retirement date . . . .” Eldridge’s counsel stated the
December 18 minute order appeared to again deny Huard’s costs
of proof motion but still did not decide Eldridge’s motion. The
court responded, “I know from talking to [the prior judge] about
this that his intent was to deny the remaining motion that wasn’t
addressed in his original ruling which was the motion by
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Eldridge for CCP 2033.420 cost-of-proof sanctions.” The court
agreed to amend the order to clarify who filed the motion being
denied. That afternoon it filed an amended minute order again
overlooking Eldridge’s motion, stating only: “The Motion by . . .
Huard for Costs pursuant to CCP section 2033.420 from . . .
Eldridge in the amount of $48,433.20 is denied.”
Both Parties Appeal
Eldridge did not seek further clarification from the court.
He appealed the November 5 and December 20 rulings on
December 23, 2024. Huard appealed the November 5 ruling and
both judgments on January 2, 2025.
The Court Strikes the November 5 Ruling’s Section 1033
Costs Award to Eldridge
After appealing, Eldridge submitted a proposed amended
judgment that reflected the November 5 award of section 1033
costs and discovery sanctions. The parties appeared before a
different judge—the fourth—on January 21, 2025 to discuss
Huard’s objections to the proposed amended judgment. The court
requested briefing about the prior judge’s rulings and the court’s
authority to revisit the award of section 1033 costs to Eldridge.
After receiving the parties’ briefs, the court ruled by minute order
on February 5. It struck the award of costs to Eldridge. It
declined to sign the amended proposed judgment.
Huard Abandons His Appeal; Eldridge Appeals the
Order Striking Section 1033 Costs
Huard abandoned his cross-appeal of the November 5
ruling on February 22, 2025. Eldridge filed a second notice of
appeal from the February 5 ruling striking section 1033 costs.
We consolidated his appeals for argument and decision.
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DISCUSSION
Motion for Fees and Costs Authorized by Contract
While the trial court awarded Eldridge costs under section
1033, it denied his request to include contractual attorney fees as
a component of these costs because he was not a prevailing party
under section 1032. “Generally, a trial court’s determination that
a litigant is a prevailing party, along with its award of fees and
costs, is reviewed for abuse of discretion. [Citations.] However,
the issue here involves the interpretation of a statute, a question
of law that we review de novo.” (Goodman v. Lozano (2010) 47
Cal.4th 1327, 1332.) Doing so, we affirm the denial.
As a threshold matter, the trial court resolved this issue
several months before it filed the November 5 ruling. The March
1, 2024 statement of decision identified Huard as the prevailing
party following trial and stated he was “entitled to his statutory
costs of suit.” Huard recovered about $9,000 in costs after the
trial court granted Eldridge’s motion to tax. The May 20
judgment reiterated Huard was the prevailing party.4 Neither
party appealed. The November 5 ruling only restates the court’s
prior ruling on this issue. That determination is final. (See
Malatka v. Helm (2010) 188 Cal.App.4th 1074, 1082 [“an
appellate court will not review earlier appealable rulings”].) We
would affirm anyway.
4 The May 20, 2024 judgment states Huard was the
prevailing party “for the purposes of costs only.” This qualifying
language was not contained in the trial court’s statement of
decision. Whether it limits the scope of the court’s prevailing
party determination does not matter because Eldridge moved for
contractual attorney fees as costs under section 1033.5,
subdivision (a)(1).
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“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.” (§ 1032, subd. (b).) Attorney fees are
recoverable as costs when authorized by contract, statute, or law.
(§ 1033.5, subd. (a)(10).) A “‘[p]revailing party’ includes the party
with a net monetary recovery, a defendant in whose favor a
dismissal is entered, a defendant where neither plaintiff nor
defendant obtains any relief, and a defendant as against those
plaintiffs who do not recover any relief against that defendant. If
any party recovers other than monetary relief and in situations
other than as specified, the ‘prevailing party’ shall be as
determined by the court, and under those circumstances, the
court, in its discretion, may allow costs or not and, if allowed,
may apportion costs between the parties on the same or adverse
sides pursuant to rules adopted under Section 1034.” (§ 1032,
subd. (a)(4), italics added.)
Eldridge interprets the phrase “and in situations other
than as specified” as including the situation here—where a
plaintiff recovers nominal damages but the defendant prevails on
the lion’s share of the claims against them. The problem with
Eldridge’s argument is that Huard’s situation is specified. He
obtained a net monetary recovery of $2,500 against Eldridge.
Though meager compared to his prayer, the award places Huard
squarely within one of subdivision (a)(4)’s four categories. The
statute vests the court with flexibility to deny or apportion costs
differently when a disposition does not fit within these four. We
question why the lawmakers who enacted section 1033.5 would
create the categories if they did not intend to limit the court’s
discretion. Their goal was to consolidate and streamline the
state’s procedures for recovering costs. (See Goodman v. Lozano
(2010) 47 Cal.4th 1327, 1335, quoting Sen. Rules Com., Off. of
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Sen. Floor Analyses, Rep. on Sen. Bill No. 654 (1985-1986 Reg.
Sess.) as amended July 8, 1986, p. 3 (Report on Senate Bill No.
654) [“The purpose of the 1986 legislation, which was sponsored
by the California Judges Association (CJA), was to streamline the
rules and procedures on the award of litigation costs, which were
deemed ‘hard to find and hard to follow.’”].)
Motion for Costs of Proof Under Section 2033.420
Eldridge contends the trial court erred when it failed to
decide his motion for costs of proof under section 2033.420 in its
November 5, December 18 and December 20 rulings. Here we
agree.
The October 30, 2024 minute order reflects the court took
three motions under submission: (1) Eldridge’s motion for fees
and costs authorized by contract; (2) Eldridge’s motion for costs of
proof; and (3) Huard’s motion for costs of proof. The court
dedicates the bulk of its November 5 ruling to discussing (and
denying) the first motion. It disposes of the third motion in a
brief coda but mentions nothing about the second motion. The
use of the preposition “from” in the December 18 amended ruling,
i.e., “[t]he Motion for Costs pursuant to CCP section 2033.420
from Eldridge is denied . . .” brought Eldridge back to court on
December 20 seeking clarity.5 (Italics added.) The court stated it
had discussed the November 5 ruling with the prior judge (then
semi-retired) and knew he intended to also deny Eldridge’s costs
of proof motion. The court assured counsel it would amend the
ruling to reflect what that judge intended. The minute order
issued later that day merely restated what the November 5 order
5 Huard’s brief misquotes the December 18 amended ruling
as stating the motion for costs “by” Eldridge instead of “from”
Eldridge.
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made clear—that the court was denying Huard’s costs of proof
motion. It again made no mention of Eldridge’s motion.
Huard asks us to infer the trial court denied the motion.
We will not. The court’s colloquy with counsel about the prior
judge’s out of court statements was not a ruling. Regardless of
whether the court intended to deny the motion, the amended
rulings do not mention it. The court either ignored or forgot
Eldridge’s request for a ruling. Either way it failed to exercise its
discretion. (See Fadeeff v. State Farm General Ins. Co. (2020) 50
Cal.App.5th 94, 104 [“A trial court’s failure to exercise discretion
is itself an abuse of discretion”].) We will remand the case with
directions to decide the motion.
February 5, 2025 Order Striking Section 1033 Costs
Eldridge contends the trial court lacked jurisdiction to
strike the costs award under section 1033, subdivision (a) because
he had already appealed the November 5 ruling. We agree.
“[T]he perfecting of an appeal stays proceedings in the trial
court upon the judgment or order appealed from or upon the
matters embraced therein or affected thereby . . . , but the trial
court may proceed upon any other matter embraced in the action
and not affected by the judgment or order.” (§ 916, subd. (a).)
Section 916 divests the trial court “of subject matter jurisdiction
over any matter embraced in or affected by the appeal during the
pendency of that appeal. [Citation.] . . . Thus, ‘that court is
without power to proceed further as to any matter embraced
therein until the appeal is determined.’” (Varian Medical
Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 196-197.) “The
rule prevents the trial court from rendering an appeal futile by
altering the appealed judgment or order by conducting other
proceedings that may affect it. [Citation.]” (Betz v. Pankow
(1993) 16 Cal.App.4th 931, 938.) Indeed, when the court modified
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the November 5 ruling to vacate language awarding costs to
Eldridge, Huard dismissed his appeal.
The trial court retained jurisdiction to enter an order or
judgment conforming to the court’s pre-appeal minute orders.
(See § 635 [“In all cases where the decision of the court has been
entered in its minutes, and when the judge who heard or tried
the case is unavailable, the formal judgment or order conforming
to the minutes may be signed by the presiding judge of the court
or by a judge designated by the presiding judge.”].) But it lacked
jurisdiction to modify the November 5 ruling.
We will, therefore, vacate the trial court’s February 5, 2025,
ruling and remand for further proceedings. We express no
opinion about the court’s authority to modify the November 5,
2024 ruling on remand.
DISPOSITION
The trial court’s February 5, 2025 order striking the award
of costs to Eldridge under section 1033 is vacated. The matter is
remanded to the trial court to decide Eldridge’s motion for costs
of proof under section 2033.420 and for further proceedings. The
parties shall bear their own costs on appeal.
NOT TO BE PUBLISHED.
CODY, J.
We concur:
YEGAN, Acting P. J. BALTODANO, J.
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Henry J. Walsh, Judge
Ronda J. McKaig, Judge
Ben Coats, Judge
Superior Court County of Ventura
________________________________________
Ferguson Case Orr Paterson, Wendy C. Lascher, for
Defendant and Appellant.
Herrera Law Partners, Alejandro H. Herrera, for Plaintiff
and Respondent.
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