Filed 12/7/05

CERTIFIED FOR PUBLICATION

 

 

 

 

 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

 

SECOND APPELLATE DISTRICT

 

DIVISION SEVEN

 

 

DAN J. AGNEW,   Plaintiff and Appellant,   v.   STATE BOARD OF EQUALIZATION,   Defendant and Respondent.

B177558   (Los Angeles County Super. Ct. No. BC153854)

 

APPEAL from a judgment and orders of Superior Court of Los Angeles County. Judith C. Chirlin, Judge. Affirmed in part; reversed in part and remanded with directions.

Mandel & Norwood, S. Jerome Mandel and Lilly Lewis, for Plaintiff and Appellant.

Bill Lockyer, Attorney General, W. Dean Freeman, Lead Deputy Attorney General, Raymond B. Jue and Felix E. Leatherwood, Deputy Attorneys General, for Defendant and Respondent.

 

 

______________________________

 

In this sales tax refund case a taxpayer who prevailed in litigation against the State Board of Equalization appeals from the court's denials of his requests for costs and attorney fees. We conclude the taxpayer is entitled to his costs as the prevailing party under Code of Civil Procedure section 1032, subdivision (b). Accordingly, we reverse the portion of the judgment which denies him an award of costs under Code of Civil Procedure section 1032, subdivision (b), as possibly augmented by Code of Civil Procedure section 998, and remand for further proceedings. We affirm the judgment and post judgment orders in all other respects.

 

FACTS AND PROCEEDINGS BELOW

 

Appellant Dan J. Agnew is a resident of Washington State. In 1981 Agnew bought a thoroughbred yearling in Kentucky he named Desert Wine. Before Desert Wine had ever raced, Agnew sold a one-half interest in the horse to Fred Sahadi. They agreed Agnew would manage Desert Wine's racing career and, if Desert Wine was successful enough to have stallion prospects, Sahadi would then manage the horse's breeding career at his Cardiff Stud Farm in California.

Desert Wine's racing career was very successful. Given the horse's success and future prospects, Agnew and Sahadi decided to syndicate Desert Wine, combining elements of both racing and breeding syndications.

After syndication, ownership of Desert Wine was represented by 40 â€