Pacific Sunwear v. Olaes Enterprises
Filed 10/9/08 Pacific Sunwear v. Olaes Enterprises CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
PACIFIC SUNWEAR OF CALIFORNIA, INC., Plaintiff and Appellant, v. OLAES ENTERPRISES, INC., Defendant and Respondent. | D052226 (Super. Ct. No. GIN052848) |
APPEAL from a judgment of the Superior Court of San Diego County, Jacqueline M. Stern, Judge. Reversed.
Pacific Sunwear of California, Inc. (PacSun) appeals a trial court order granting attorney fees to Olaes Enterprises, Inc. (Olaes) in PacSun's lawsuit for breach of warranty. After granting Oleas's motion for summary judgment, the trial court awarded Olaes attorney fees and costs based on the parties' contractual agreement(s) that, under certain circumstances, "reasonable attorneys fees and costs shall be awarded to the party that successfully obtains or opposes . . . relief requested."
The trial court ruled that under Civil Code section 1717, the breach of warranty action was "on a contract," and that "pursuant to the ruling on [Olaes's] Motion for Summary Judgment and the judgment entered pursuant to that ruling, [Olaes] is the prevailing party on the contract(s), thus entitled to an award of reasonable attorney fees, costs and expenses."
We reverse. In reversing we do not reach the question decided by the trial court and argued by the parties on appeal whether PacSun's lawsuit is properly viewed as "on a contract" under Civil Code section 1717. Rather, we reverse solely on the narrow ground that regardless of whether or not the action was "on a contract," our reversal of the trial court's award of summary judgment in Pacific Sunwear of California, Inc. v. Olaes Enterprises, Inc., case No. D051391, dictates that Olaes is no longer a "prevailing party." (Civ. Code, 1717.) Therefore, Olaes is not entitled, at least at this point in the litigation, to attorney fees. (Butler-Rupp v. Lourdeaux (2007) 154 Cal.App.4th 918, 928 ["the identification of the party entitled to a fee award must be determined by the final result of the litigation"].) We express no opinion as to the merits of the various other arguments raised by PacSun in its challenge to the attorney fee award.[1]
DISPOSITION
Reversed.
IRION, J.
WE CONCUR:
BENKE, Acting P. J.
HUFFMAN, J.
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[1] During the pendency of this appeal, Olaes filed a motion to "strike or disregard" portions of PacSun's appendix and corresponding citation to those portions in its appellate brief because Olaes believes the portions of the appendix do not comply with the Rules of Court. Olaes's motion consists primarily of a laundry list of page references identifying the pages it seeks to strike from the appendix; Olaes fails to explain how striking those pages would influence the merits of the appeal. We deny the motion.
