Fennessy v. DeLeuw-Cather Corp.

California Court of Appeal Mar 19, 1990 No. A042804Published

Before: Kline

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Holding. A prevailing defendant who incurs costs jointly with other defendants who remain in the litigation may only recover costs actually incurred by or on their behalf, and the trial court must apportion such costs to avoid potential double recovery or unnecessary future litigation.

Issues

Whether a prevailing defendant is entitled to recover the full amount of costs incurred jointly with other defendants who remain in the litigation.
Whether the appellant sufficiently challenged the cost memorandum to require the trial court to determine if the costs were personally incurred by the prevailing defendant.

Disposition. reversed

Quotations verified verbatim against the opinion

“where a prevailing party incurs costs jointly with one or more parties who remain in the litigation, during the pendency of the litigation that party may recover only costs actually incurred by a party or in its behalf”

“the trial court erred in awarding Gerulat the total costs claimed without ascertaining whether he in fact incurred such costs.”

[1194]

Opinion

KLINE, P. J.

Appellant James L. Fennessy appeals from an award of costs to Edward Gerulat, the sole defendant out of six who was granted summary judgment in the trial court. Appellant contends the court erred in awarding Gerulat all costs requested when the majority of those costs were incurred on behalf of all defendants. Appellant also maintains that even if the award was proper, execution of the award should be stayed until the action has been resolved. We shall reverse.

Statement of the Case and Facts

On January 3, 1986, appellant filed a complaint alleging he had been wrongfully discharged from his employment as a safety engineer with Greeley & Hansen Company. The complaint named six defendants, three of whom comprised a joint venture that had contracted with the City and County of San Francisco to administer the construction of the San Francisco Clean Water Program. Appellant’s complaint alleged he was terminated in violation of Labor Code section 1102.5 in retaliation for his complaints to various official agencies regarding alleged fraud and corruption in the clean water program. All of the defendants were represented by the same law firm.

In February 1988 all defendants moved for an order of summary judgment, or summary adjudication. Summary judgment was granted as to defendant Gerulat and denied as to the other defendants. An order granting the summary judgment was filed on April 4, 1988.

On March 30, 1988, Gerulat filed a memorandum of costs. On April 7, 1988, appellant moved to strike Gerulat’s memorandum of costs or, alternatively, to tax costs. The motion was heard and denied on April 29. On May 27 appellant was ordered to pay Gerulat $4,378.53 in costs.

This timely appeal followed.

Discussion

Code of Civil Procedure section 1032, subdivision (b) provides that “a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.” According to the statute, a “defendant in whose favor a dismissal is entered” is a prevailing party for purposes of the statute. (Code Civ. Proc., § 1032, subd. (a)(4).) Appellant argued below and now argues on appeal that although Gerulat was a prevailing party, he was not entitled to the costs claimed because they had been incurred collectively by

Fennessy v. DeLeuw-Cather Corp.

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KLINE, P. J.

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