Nominal Defendant Made a General Appearance, So Defendant Prevailed.
An in pro per plaintiff losing a suit against certain contractors and a “nominal defendant” (a development association set up to maintain roads throughout the private development) was obviously unhappy that a lower court awarded $1,121 in costs against him and in favor of the defendant association.
He appealed, but became no happier in Koresko v. Mountain Valley Assn., Case No. F064852 (5th Dist. Dec. 12, 2012) (unpublished).
His main argument was that association was only a “nominal defendant” such that the trial court lacked jurisdiction over it and could not award it costs. Wrong, said the appellate court, because association made a general appearance which did have the effect of having the association submit to the trial court’s jurisdiction. Plaintiff obtained no relief such that defendant was a prevailing party entitled to an award of costs. (Code Civ. Proc., §§ 1032(a)(4), (d).) Plaintiff could not contest the amount of costs because he failed to file a motion to tax costs (which had the effect of waiving such a challenge). (Santos v. Civil Service Bd., 193 Cal.App.3d 1442, 1447 (1987).) The appellate court also awarded costs on appeal to winning association.