Guevara v. Brand

California Court of Appeal Aug 10, 1992 No. H009011Published

Before: Capaccioli

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Holding. A prevailing party in a judicial arbitration is entitled to recover costs as a matter of right under applicable statutes and rules, even if the arbitrator's award did not explicitly mention or include costs.

Issues

Whether a prevailing party may recover costs in superior court if the arbitrator failed to include them in the arbitration award.
Whether a memorandum of costs may be filed after the entry of judgment on a judicial arbitration award.

Disposition. Affirmed

Quotations verified verbatim against the opinion

“An arbitration award has the same force and effect as a judgment in a civil action or proceeding, and is subject to all provisions of law relating to a civil judgment.”

“Accordingly, under both rule 1615(a) and section 1032, subdivision (b), plaintiff is entitled as the prevailing party to recover his costs as a matter of right.”

“In such circumstances, it is entirely appropriate to file a memorandum of costs pursuant to rule 870 even though the judgment has failed to include them in the award.”

Opinion

CAPACCIOLI, Acting P. J.

This is an appeal from an order denying a motion to strike a memorandum of costs, which was filed after entry of judgment on a judicial arbitration award. Warren Brand, defendant in the underlying action, contends that if costs of arbitration are not awarded by the arbitrator, they are not thereafter recoverable in superior court. We disagree and affirm the order.

Background

In December 1989 plaintiff filed a complaint alleging personal injuries arising from a motor vehicle accident. The case was referred to judicial

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arbitration pursuant to California Rules of Court, rule 1600 et seq.

The arbitrator found defendant responsible for the accident and awarded plaintiff $39,870.81 for medical expenses, lost wages, and pain and suffering. There was no mention of costs in the award.

On July 8, 1991, shortly after judgment was entered in the matter, plaintiff’s attorney filed a memorandum of costs requesting $635.54. Defendant moved to strike the entire memorandum and asked for sanctions pursuant to Code of Civil Procedure section 128.5.

According to defendant, the arbitrator was presumed to have included costs in the award, and adding costs to the judgment where they have not been awarded would allow plaintiff to “double dip.” The trial court, however, found that defendant’s argument was without factual foundation and ruled that as the prevailing party, plaintiff was entitled to costs as a matter of law. This appeal followed.

Discussion

On appeal, defendant renews the argument that “[w]hen no award of costs is made by the arbitrator, none should be inferred by the Court nor [szc] added to the award as a judgment. . . .” No authority is cited for this proposition, however; instead, defendant relies on “common sense” and the asserted injustice of allowing costs after the losing party has relied on the finality and completeness of the award and permitted it to become a final judgment pursuant to section 1141.20 and California Rules of Court, rule 1615(c).

Guevara v. Brand

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