California Court of Appeals, Fourth District, Third Division
Appeal from an order of the Superior Court of Orange County No. 30-2009-00317686, Sheila Fell, Judge.
Rundle Law Corporation and Peter K. Rundle for Defendant and Appellant.
Law Offices of Timothy D. McGonigle and Timothy D. McGonigle for Plaintiff and Respondent.
Korusfood.com, formerly known as Felix and Sons, Inc. (Korusfood), appeals from an order granting the motion of Apex LLC (Apex) for attorney fees incurred in a prior appeal. In that appeal, Apex LLC v. Sharing World, Inc. (2012) 206 Cal.App.4th 999, 1024 1025 (Apex I), we reversed a judgment in favor of defendants Sharing World, Inc., doing business as Felix & Sons, Inc., and Korusfood and remanded for further proceedings. We also reversed an order granting a motion for attorney fees that was brought by all defendants, including Korusfood. (Id. at p. 1024.) Costs were awarded to Apex. (Id. at p. 1025.)
After remand to the trial court, Apex brought a motion to recover its attorney fees incurred in Apex I. The trial court granted the motion and awarded attorney fees against both Sharing World, Inc., and Korusfood.
Korusfood argues the trial court erred because Korusfood was not a party to the credit applications that included the attorney fees provision on which the award of attorney fees was based. Apex has brought a motion to dismiss the appeal on the ground the order granting its motion for attorney fees is not directly appealable.
We conclude (1) the order granting Apex’s motion for attorney fees is directly appealable under the collateral order doctrine and (2) the trial court did not err by awarding attorney fees against Korusfood because substantial evidence supported a finding that Korusfood stepped into the shoes of Sharing World, Inc., and Felix and Sons, Inc., the parties to the credit applications. We therefore deny the motion to dismiss the appeal and affirm.
Apex sued “Sharing World, Inc., dba Felix and Sons, ” and “Felix & Sons, Inc., ” alleging they failed to accept and pay for 14, 625 tons of cottonseed which were to be delivered between October 2008 and August 2009. Apex’s verified first amended complaint asserted causes of action for breach of written contract, breach of oral contract, account stated, open book account, and breach of third party beneficiary contract. As damages, Apex sought the difference between the contract prices and the prices at which Apex resold the cottonseed in August 2009.
The verified first amended complaint was answered by “Sharing World, Inc., ... dba Felix and Sons, Inc., ” and “KorusFood.com, ... fka Felix and Sons, Inc.” The verified answer alleged: “Answering Defendants admit that KorusFood.com is a California corporation with its principal place of business in Irvine, California, and further admit that KorusFood.com was formerly known as Felix and Sons, Inc.”
Following a bench trial, the trial court found in favor of Sharing World, Inc., and Korusfood and against Apex. (Apex I, supra, 206 Cal.App.4th at pp. 1004, 1008.) After entry of judgment, Sharing World, Inc., and Korusfood brought a motion to recover attorney fees. The trial court granted the motion and found “defendants are entitled to fees as a matter of law.” The court awarded Sharing World, Inc., and Korusfood attorney fees in the amount of $107, 560. (Apex I, supra, at p. 1008.)
In Apex I, we reversed the judgment and the order granting attorney fees, and remanded. The disposition stated: “The judgment and the order granting attorney fees are reversed and the matter is remanded for a new trial and proceedings limited to these issues only: (1) whether Apex acted in a commercially reasonable manner and/or in compliance with NCPA [(National Cottonseed Products Association, Inc.)] Trading Rules when it washed the balance of each of the 12 cottonseed contracts; (2) the amount of damages, if any, suffered by Apex; and (3) posttrial ...