NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IRION, J.

Defendant American Safety Indemnity Company (ASIC) appeals from a postjudgment order of the superior court granting a motion to strike ASIC's memorandum of costs ("Order"). The judgment that preceded ASIC's memorandum is the subject of another appeal in this court, decided this same date, McMillin Cos., LLC v. American Safety Indemnity Co., No. D063586 (D063586). In D063586, we reversed the judgment.

An order denying costs "`falls with a reversal of the judgment on which it is based.'" (Allen v. Smith (2002) 94 Cal.App.4th 1270, 1284.) That is because costs on appeal "are merely incidental to the judgment appealed from." (Purdy v. Johnson (1929) 100 Cal.App. 416, 420-421.) Indeed, in its opening brief, ASIC acknowledges that its right to obtain costs may be impacted by the disposition of D063586.

Accordingly, ASIC's appeal from the Order is moot and must be dismissed. (Evans v. Southern Pacific Transportation Co. (1989) 213 Cal.App.3d 1378, 1388.)

DISPOSITION

The appeal is dismissed. In the interests of justice, the parties will bear their respective costs on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)

NARES, Acting P. J. and AARON, J., concurs.