“Merits” Dismissals Are Not Only Dismissals Giving Rise To Costs.
In Hambrick v. Healthcare Partner Medical Group, Inc., Case No. B251643 (2d Dist., Div. 7 June 1, 2015) (unpublished), defendants prevailed based on a judicial abstention argument on a gnarly risk level regulatory issue for health providers in a class action case, obtaining a dismissal on technical judicial abstention grounds. Although only routine costs were involved, plaintiff appealed that and other issues.
All issues were affirmed on appeal. Plaintiff challenged that a technical dismissal based on abstention did not give rise to routine costs exposure, but the 2/7 DCA panel found that this restriction was not contained in Code of Civil Procedure section 1032. (Cf. Brown v. Desert Christian Center, 193 Cal.App.4th 733, 738, 741 (2011) [dismissal on basis of subject matter jurisdiction gave rise to routine costs].) The panel followed Brown and did not adhere to contrary Ninth Circuit authority (Elwood v. Drescher, 456 F.3d 943, 948 (9th Cir. 2006) [Younger abstention dismissal did not allow prevailing parties fees under 42 U.S.C. § 1988]) because Elwood involved a different federal statute and was a federal case not binding on the state court.