Consumers Holding Co. v. County of Los Angeles

[420]

THE COURT.

This was an action in eminent domain. The defendants to the action below were the owner and two lienors whose liens had attached to the property. After determining the full amount of damages to be awarded against plaintiff eondemner, the trial court apportioned the award among defendants pursuant to section 1246.1, Code of Civil Procedure, which authorizes a separate determination of the issues of total damages and apportionment of the award among several defendant claimants. The owner, finding the trial court’s apportionment unacceptable, appealed from that part of the judgment. Since plaintiff was disinterested in the apportionment only defendant lienors responded and plaintiff did not become a party to the appeal.

We affirmed the trial court’s judgment. In the decision we gave no direction as to costs on appeal and the clerk of this court, as is usual where the judgment is silent concerning costs, added a direction in the remittitur to award costs on appeal to the prevailing party, in this case defendant lienors. The dispute concerns who shall be required to pay the costs of the parties to the appeal including costs incurred by appellant.

Section 1246.1,

supra,

provides that the plaintiff eondemner shall bear costs of determining an apportionment of the award. Appellant construes “costs of determining the apportionment” to include costs of an unsuccessful appeal from a proper determination by the trial court. Since the provision for costs in the remittitur was construed below to preclude taxing costs of the appeal against plaintiff eondemner, appellant now brings a motion before this court to recall said remittitur and eliminate therefrom the words “respondent to recover costs of appeal.”

Appellant owner is entitled to recover his costs of determining the apportionment to the extent allowed by section 1246.1. This is consonant with the rule that a condemnee, entitled to be made whole, shall not bear any reasonable costs incident to the determination of his damages because the compensation for the property taken would not be just, as, required by article I, section 14, California Constitution, if it were reduced by those costs. But this constitutional mandate does not confer an unlimited right to costs where the determination of the award is reconsidered through post-trial motions and appeals. See