Haire v. Stevenson

Opinion

BOREN, J.

—Appellants challenge the propriety of the trial court’s order granting costs to respondents. Appellants contend that the court lacked jurisdiction to award costs, including attorney’s fees (Civ. Code, § 1717, subd. (a)), to respondents because they were not “prevailing parties,” within the meaning of Code of Civil Procedure section 1032, and that respondents waived costs because they failed to file their memorandum of costs within the statutory time period. We find appellants’ contentions meritorious and, accordingly, reverse.

Appellants, tenants, sued respondents for breach of their leasehold obligations as landlords. Thereafter, respondents filed an unlawful detainer suit against appellants because of their failure to pay rent. Pursuant to stipulation, the two cases were consolidated. After a jury trial, a judgment was

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entered on June 26, 1986, which (1) awarded appellants $100,204 plus interest from the date of the verdict until paid “with costs and disbursements in the sum of $47,567.81,” and (2) awarded respondents $18,900. No appeal was taken from that judgment.

On July 22, 1986, respondents filed a memorandum of costs and disbursements seeking clerk’s and reporter’s fees and attorney’s fees “as per lease,” totalling $25,757.25.

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Appellants opposed the request with a motion to tax costs and expenses. At a hearing on August 22, 1986, Superior Court Judge Thomas Murphy ruled, “I’m denying the motion to tax costs,” and the minute order of that date reflected the denial of the motion and the award of costs. Nonetheless, the orders actually entered by the court provided, in pertinent part, that appellants’ “Motion to Tax Costs is Granted, and the Memorandum of Costs and Disbursements filed herein by [respondents] is stricken,” and that respondents’ motion is denied.

On March 12, 1987, respondents moved to correct a clerical error in the judgment and to amend the judgment nunc pro tunc. On March 27, 1987, the court granted the motion and indicated in its minute order that, “The Court finds that although the plaintiff(s) [appellants] herein prevailed on the complaint, the cross-complainants [respondents] prevailed on the cross-complaint, and therefore costs are recoverable, ffl] The order . . . signed and filed SEP 10, 1986, is vacated and set aside, as to the motion of plaintiff’s [sic] [appellants] to tax costs.” Appellants’ motion for reconsideration was denied on May 8, 1987.