Be Careful in Saying “Thank You.”
HPSC, Inc. v. Tiffany, Case No. D061142 (4th Dist., Div. 1 Aug. 19, 2013) (unpublished) is a situation where one defendant was dismissed upon an oral motion after a summary judgment argument, with the court expressly indicating the defendant was dismissed upon the condition that both sides absorb their own attorney’s fees and costs as to the dismissed defendant. In response, attorney for the dismissed party said “thank you” right after the court so announced.
On appeal, dismissed defendant argued she was the prevailing party for costs purposes under Code of Civil Procedure section 1032(a)(4), which does define a dimissed party as a prevailing one. However, a trial court is granted some discretion to determine the prevailing party, from a costs perspective, in situations not falling clearly within section 1032’s statutory categories. (Lincoln v. Schurgin, 39 Cal.App.4th 100, 105-106 (1995).) In this case, the appellate court interpreted dismissed defendant’s counsel’s “thank you” as an acquiescence to the judge’s ruling, enough to blunt a challenge to the cost objection issue on appeal. The reviewing court also thought the trial judge was trying to end further proceedings on a confusing record as to one defendant, so the ruling was no abuse of discretion.
BLOG OBSERVATION–So, the moral of this one may be this: be careful in your use of “thank you,” notwithstanding that litigators routinely do thank trial judges, whether winning or losing, as a matter of general courtesy in our law and motion experience.