Sandyland Rd. Assn. v. Gichon

Filed 10/8/08 4975 Sandyland Rd. Assn. v. Gichon CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from an order of the Superior Court of Los Angeles County. Richard B. Wolfe, Judge. Affirmed.

Law Offices of David Drexler and David Drexler for Plaintiff and Appellant.

No appearance for Defendants and Respondents.

____________________

Appellant 4975 Sandyland Road Association, Inc. (the corporation), challenges a trial court order deeming respondents Eli and Karen Gichon (the Gichons) prevailing parties entitled to costs pursuant to Code of Civil Procedure section 1032, subdivision (a)(4).[1]

We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The corporation is a California corporation and the owner of a 36-unit apartment building located in Carpinteria, California. The Gichons are owners of one of the 35 shares in the corporation and lessees of one apartment located in the corporations apartment building.

A dispute arose between the parties, and on March 6, 2007, the Gichons filed a small claims court action against the corporation. In response, and pursuant to section 116.390, subdivision (a),[2]on April 19, 2007, the corporation filed a complaint in superior court against the Gichons.

Also on April 19, 2007, trial commenced on the Gichons small claims court complaint only. After taking the matter under submission, the trial court (Hon. Denise deBellefeuille) entered judgment in favor of the corporation.

Meanwhile, litigation proceeded on the corporations complaint in superior court. Specifically, in June 2007, the Gichons filed a motion to compel arbitration of the claims raised in that action. Over the corporations opposition, the trial court (Hon. Richard B. Wolfe) granted the Gichons motion and ordered the matter to arbitration.

On November 1, 2007, the corporation filed a voluntary request for dismissal of its superior court complaint without prejudice.

The Gichons then filed a memorandum of costs, seeking $1,800 in total costs.

On November 28, 2007, the corporation moved to tax costs, arguing that the Gichons were not prevailing parties. According to the corporation, it only dismissed its complaint after the trial court ordered the parties to arbitration. Because arbitration had not yet commenced, let alone been resolved, the Gichons request was premature and inappropriate.

After a hearing, the trial court denied the corporations motion to tax costs, finding the Gichons to be the prevailing parties pursuant to section 1032, subdivision (a)(4). The trial court determined that the Gichons were the prevailing parties by virtue of the corporations voluntary dismissal of its superior court complaint.

The corporations timely appeal ensued.

DISCUSSION

The corporation contends that the Gichons are not the prevailing parties as a matter of law. Where, as here, the determination of whether costs should be awarded is an issue of law on undisputed facts, we exercise de novo review. [Citation.] (City of Long Beach v. Stevedoring Services of America (2007) 157 Cal.App.4th 672, 678.) It raises several arguments, each of which we address in turn.

First, the corporation claims that the Gichons cannot be the prevailing parties because it prevailed on the Gichons small claims court complaint. According to the corporation, as a result, it is the prevailing party, regardless of what happens on its superior court complaint, which operates as a cross-complaint pursuant to section 116.390, subdivision (a).

We are not convinced. As a preliminary matter, we note that the corporation failed to raise this argument below. It is a general rule of appellate review that arguments waived at the trial level will not be considered on appeal. (CaliforniaState Auto. Assn. Inter-Ins. Bureau v. Antonelli (1979) 94 Cal.App.3d 113, 122.) A party on appeal cannot successfully complain because the trial court failed to do something which it was not asked to do. (In re Cheryl E. (1984) 161 Cal.App.3d 587, 603.) [I]t would be wholly inappropriate to reverse a superior courts judgment for error it did not commit and that was never called to its attention. (People v. Lilienthal (1978) 22 Cal.3d 891, 896.)

The corporations failure to raise this argument in the trial court precludes appellate review of this claim of error. Our analysis could stop here.

Regardless, the corporations argument fails on the merits. It is apparent that the parties and the trial courts treated the Gichons small claims court complaint and the corporations superior court complaint as different actions. After all, the corporation never asked that the Gichons small claims court complaint be transferred to the superior court where its complaint had been filed. ( 116.390, subd. (a).) Instead, the parties proceeded to trial on the Gichons complaint in small claims court. Then, following the completion of that trial, separate litigation commenced on the corporations superior court complaint, before a different judge in a different courtroom. Thus, as the prevailing party on the Gichons small claims complaint, the corporation should have sought costs in connection with that trial, before the judge who tried that case and who entered that judgment.

Second, the corporation contends that there is no prevailing party on its complaint because that dispute has not yet been arbitrated. The corporation is mistaken.

Section 1032, subdivision (b) provides: 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. A prevailing party includes a defendant or cross-defendant in whose favor a dismissal is entered. ( 1032, subd. (a)(4); see also Wakefield v. Bohlin (2006) 145 Cal.App.4th 963, 975976.) [T]he trial court has no discretion to deny prevailing party status to a litigant in whose favor a dismissal is entered. (Wakefield v. Bohlin, supra, at p. 975.)

Here, pursuant to the corporations request, a dismissal was entered in favor of the Gichons. As a result, the Gichons are the prevailing parties, and the trial court had no discretion to deny them prevailing party status.

Third, the corporation argues that its dismissal was necessitated and/or mandated by the trial courts order granting the Gichons motion to compel arbitration.

The corporation again is wrong. As the trial court pointed out to the corporation, a voluntary dismissal was not required. Rather, pursuant to section 1281.4, the corporation could have asked the trial court to stay the action pending arbitration. It did not do so. Instead, it elected to file a voluntary request for dismissal. The result of its dismissal is that the Gichons are the prevailing parties, and, as set forth above, the trial court lacked discretion to deny them that status.

Finally, the corporation asserts that the Gichons are not entitled to costs because the parties arbitration agreement does not provide for the prevailing party to recoup its costs. Aside from the fact that the parties agreement does provide for the prevailing party to recover all attorney fees and costs, the corporation relies upon inapposite authority. Regardless of the terms of the parties agreement, pursuant to the Code of Civil Procedure, a prevailing party is entitled to recover its costs. ( 1032, subd. (b).)

DISPOSITION

The order of the trial court is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

_____________________, J.

ASHMANN-GERST

We concur:

_____________________, P. J. _____________________, J.

BOREN DOI TODD

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[1] All further statutory references are to the Code of Civil Procedure unless otherwise indicated.

[2] Section 116.390, subdivision (a) provides, in relevant part: If a defendant has a claim against a plaintiff that exceeds the jurisdictional limits stated in Sections 116.220, 116.221, and 116.231, and the claim relates to the contract, transaction, matter, or event which is the subject of the plaintiffs claim, the defendant may commence an action against the plaintiff in a court of competent jurisdiction and request the small claims court to transfer the small claims action to that court.