Republic Western Ins. Co. v. Maharaj

Filed 3/6/06 Republic Western Ins. Co. v. Maharaj CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

Republic Western Insurance Company (plaintiff) filed suit against Ajesh Maharaj (individually and doing business as Rose Liquor, Food & Gas), Yatish Maharaj and Sierra Liquors, Inc. (Sierra) (collectively, defendants) on theories of alter ego liability and successor liability to recover attorney fees and costs awarded against Sierra in a prior proceeding. Following an arbitration decision in favor of defendants and a voluntary dismissal of the action by plaintiff, defendants filed a motion in the trial court for attorney fees and costs. The trial court denied defendants' request for attorney fees, and defendants appeal. We shall affirm.

FACTUAL AND PROCEDURAL BACKGROUND

According to assertions contained in the complaint filed by plaintiff in this matter, Frederick Usher sued Sierra in a prior proceeding (case No. 98AS05711‑‑the prior proceeding) to eject Sierra from commercial property based on a provision in a written lease, which also included an attorney fees clause. Sierra filed a cross-complaint against Usher for breach of contract. According to plaintiff's complaint, Usher was insured by plaintiff, and Sierra's cross-complaint triggered plaintiff's duty to defend Usher. Usher prevailed in the prior proceeding and was awarded attorney fees and costs.

In the present matter, plaintiff sued defendants on theories of alter ego liability and successor liability, seeking recovery of the attorney fees and costs awarded in the prior proceeding. The complaint also sought costs incurred in the present matter, â€