Slavin v. Fink

California Court of Appeal Jun 6, 1994 No. B065767Published

Before: Hastings

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Holding. The trial court did not abuse its discretion in apportioning and taxing costs where the prevailing defendant was united in interest with a non-prevailing defendant and failed to allocate costs specifically attributable to his own defense.

Issues

Whether the trial court abused its discretion in apportioning costs between a prevailing defendant and a non-prevailing defendant who were united in interest and represented by the same counsel.

Disposition. affirmed

Quotations verified verbatim against the opinion

“In those instances in which several defendants are united in interest and/or join in making the same defenses in the same answer, the allowance or disallowance of an award to prevailing defendants lies within the sound discretion of the court.”

“The trial court properly exercised its discretion to determine allocation between the parties. We will only overturn the determination of the trial court for an abuse of discretion.”

[724]

Opinion

HASTINGS, J.

This is a companion case to

Slavin

Borinstein, ante,

page 713 [30 Cal.Rptr.2d 745].

In this action Leon Slavin (respondent), a building contractor, sued Albert Fink (appellant), an agent of Joan Borinstein (Borinstein), for recovery of construction fees, costs and lost profits relating to a residence being constructed by respondent for Borinstein. In the companion action, respondent sued Borinstein for the same damages. Borinstein also sued respondent claiming construction defects. The actions were consolidated and tried at the same time. Allan A. Sigel (Sigel) of Sigel & Boothe represented Fink and Borinstein in all actions.

On November 22, 1991, a judgment was rendered in favor of respondent and against Borinstein awarding him sums for unpaid construction costs plus interest, unpaid contractor’s fees plus interest and loss of net profits plus interest for a total sum of $875,644.17. An offset was awarded in favor of Borinstein in the amount of $36,430.21, without interest. The trial court found that Fink was the disclosed agent for Borinstein relating to his negotiations with respondent on her behalf and awarded judgment in favor of Fink and against respondent.

Sigel, on behalf of Fink as the prevailing party, filed a memorandum of costs seeking $19,422.78 against respondent. Respondent filed a motion to strike the memorandum of costs or, in the alternative, to tax costs. Respondent argued, inter alia, that he was the prevailing party in the consolidated litigation and that the costs claimed by Sigel, on behalf of Fink, were really costs which benefitted Borinstein, the losing party.

After hearing on the motion, the trial court basically agreed with respondent and made the following findings: “2. The court finds that Fink has claimed the same costs as could have been claimed by Joan Nancy Borinstein (‘Borinstein’), had she been a prevailing party in the case. There has been no attempt by Fink to separate out the costs attributable to Fink, and it is crucial that such allocation be made. Borinstein was the ‘main’ defendant in the case. Fink acted as her disclosed agent. It was a mistake for Slavin to have sued Fink in an individual capacity, because no facts supported an award of damages against Albert Fink personally. However, that mistake by Slavin does not permit Borinstein or Fink to turn the lawsuit around so as to make it appear that Fink was a ‘main’ defendant. The record is clear that Fink became entitled to a judgment in his favor by the mere failure of Slavin

Slavin v. Fink

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HASTINGS, J.

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