Vogt v. SX Ranch
Filed 4/5/07 Vogt v. SX Ranch CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT
(Modoc)
CHET VOGT et al., Plaintiffs and Appellants, v. SX RANCH, INC., Defendant and Respondent. | C053168 (Super. Ct. No. CU04054) |
This is an appeal by plaintiffs Chet Vogt et al. from a decision of the trial court awarding defendant SX Ranch, Inc., attorney fees as the prevailing party under Civil Code section 1717[1]following a decision of this court (Vogt v. Superior Court (Apr. 4, 2006, C050675) [nonpub. opn.]), that denied a petition seeking to overturn the granting by the trial court of a summary adjudication of plaintiffs cause of action for the specific performance of a contract by plaintiffs to purchase the SX Ranch on the ground they did not have the ability to purchase the property by the close of escrow and were not prevented from doing so by SX Ranch.
Plaintiffs voluntarily dismissed the contract causes for damages following the decision of this court and claim that as a consequence there was no prevailing party under the provisions of section 1717, subdivision (b)(2), which provides that where an action on a contract that provides for attorney fees to the prevailing party, has been voluntarily dismissed . . . there shall be no prevailing party . . . . In the alternative the plaintiffs claim the costs of charter airplane service from Napa to Modoc County should not have been awarded the prevailing party because it is not an allowable cost under the provisions of Code of Civil Procedure section 1033.5, subdivision (a)(3). In both cases we disagree.
The ground of resolution of our decision, that plaintiffs failed to deposit the down payment required to close escrow when time was of the essence, effectively disposed of the merits of all of plaintiffs contract claims, including the damage claims that were voluntarily dismissed following our decision. Specific performance and injunction are alternatives to the award of damages as means of enforcing contracts. (Rest.2d Contracts, 356, Topic 3, Introductory Note, p. 162.) Accordingly, there were no damage claims to be dismissed since, following our decision, there were no contractual rights to be enforced. If the plaintiffs had not dismissed the damage claims the trial court would have entered judgment for the defendants on all claims. For these reasons section 1717, subdivision (b)(2) has no application.
With respect to the costs of a chartered aircraft, Code of Civil Procedure section 1033.5, subdivision (a)(3), which specifies certain matters that are recoverable as costs, does not preclude the trial court from determining that the costs of the charter service were reasonably necessary to the conduct of the litigation given the remoteness of Alturas in Modoc County from St. Helena in Napa County because [i]tems not mentioned in [the] section . . . may be allowed or denied in the courts discretion. (Code of Civil Procedure 1033.5, subdivision (c)(2)&(4).)
The judgment is affirmed.
BLEASE , Acting P.J.
We concur:
DAVIS , J.
RAYE , J.
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[1] Unspecified section references are to the Civil Code.
