Lower Court Erred In Not Granting Routine Costs Under Mandatory Prevailing Party Costs Provisions; But, On Remand, It Needed To Determine If Plaintiff Prevailed Under The Discretionary Prevailing Party Costs Provision.
Our title and subtitle above capture what happened in Fillerup v. Franchise Tax Board, Case No. C099158 (3d Dist. Dec. 11, 2024) (unpublished), but we provide a little more flavor. However, here are the general rules for recovering routine costs: (1) there are certain mandatory categories for cost recovery, including parties who get a net monetary recovery and a defendant in whose favor a dismissal was entered; and (2) other categories, including a party obtaining non-monetary relief outside of the mandatory situations, can be awarded costs in the discretion of the lower court.
Fillerup involved a situation where a plaintiff taxpayer sued the FTB claiming that the Board misapplied an estimated tax payment; and, after much wrangling and with the litigation pending, the Board ultimately gave taxpayer the relief he wanted. Taxpayer then dismissed his lawsuit without prejudice based on getting what he desired. Taxpayer moved for $565 in routine costs, with the FTB winning a motion to strike plaintiff’s costs memo. (We leave it to readers to determine if this amount was worth contesting.). Plaintiff appealed the lower court’s denial of costs based on plaintiff not winning in mandatory prevailing party cost categories.
The Third District reversed. The lower court erred in failing to determine if plaintiff fell within the discretionary prevailing party costs category because he obtained the non-monetary relief he wanted as far as reallocation of his tax payments. The matter was remanded so the lower court could determine if discretionary costs were appropriate.