Fear Not Law Articles: Wagner Construction v. Pacific Mechanical

Wagner Construction v. Pacific Mechanical

Filed 10/4/07 Wagner Construction v. Pacific Mechanical CA2/5

Opinion following remand by Supreme Court

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FIVE

WAGNER CONSTRUCTION COMPANY,

Plaintiff and Appellant,

PACIFIC MECHANICAL CORPORATION,

Defendant and Respondent.

B178996

(Los Angeles County

Super. Ct. No. SC081031)

APPEAL from an order of the Superior Court of Los Angeles County, Gerald Rosenberg, Judge. Reversed with directions.

Marks, Golia & Finch, LLP, and Jason R. Thornton, for Plaintiff and Appellant.

McInerney & Dillon, Timothy F. Winchester, William A. Barrett, and Alexander Bannon, for Defendant and Respondent.

This case is before us on a remand from the California Supreme Court. (Wagner Const. Co. v. Pacific Mechanical Corp. (2007) 41 Cal.4th 19, 32.) Pursuant to the mandate of the Supreme Court, the cause is remanded to the trial court to decide the issue of waiver. (Id. at p. 31.) In terms of costs on appeal, given the language in Freeman v. State Farm Mutual Automobile Ins. Co. (1975) 14 Cal.3d 473, 482-487 and Sawday v. Vista Irrigation Dist. (1966) 64 Cal.2d 833, 836-837, the position taken by defendant, as well as the trial court, was eminently reasonable. The interests of justice are best served by each side bearing its own costs on appeal.

The judgment is reversed with directions to the trial court to decide the issue of waiver. All parties are to bear their own costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

TURNER, P. J.

I concur:

ARMSTRONG, J.

MOSK, J. Concurring and Dissenting

I concur in the reversal but dissent insofar as the majority did not award costs on appeal to the party that prevailed.

MOSK, J.

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Description	This case is before us on a remand from the California Supreme Court. (Wagner Const. Co. v. Pacific Mechanical Corp. (2007) 41 Cal.4th 19, 32.) Pursuant to the mandate of the Supreme Court, the cause is remanded to the trial court to decide the issue of waiver. (Id. at p. 31.) In terms of costs on appeal, given the language in Freeman v. State Farm Mutual Automobile Ins. Co. (1975) 14 Cal.3d 473, 482 487 and Sawday v. Vista Irrigation Dist. (1966) 64 Cal.2d 833, 836 837, the position taken by defendant, as well as the trial court, was eminently reasonable. The interests of justice are best served by each side bearing its own costs on appeal.
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