Costs: Defendant Did Not Have To Apportion Costs Among Other Co-Defendants Where Costs Were Determined At Case’s Conclusion

Second District, Division 3 Distinguishes Other Costs Apportionment Decisions.

     In Fennessy v. DeLeuw-Cather Corp., 218 Cal.App.3d 1192 (1990), the appellate court held that when a prevailing party incurs costs jointly with other parties who remain in the litigation and seeks recovery of costs during the pendency of the litigation, that party may recover only costs actually incurred by it or on its behalf in prosecuting or defending the case. The rationale is that later successful parties should not have to sue the prior prevailing party to receive a division of costs that the earlier party had already pocketed. Another reason is that the party bearing the costs might ultimately pay the costs of an opponent who does not prevail at the end of the day. (See Jonkey v. Carignan Construction Co., 139 Cal.App.4^th 20, 26 (2006).)

     These rationales, as well as Fennessy and Jonkey, were raised by a plaintiff who was hit with costs awards by three defendants as a reason for reversal.

     Unfortunately, plaintiff did not have the right procedural context or facts.

     The Second District, Division 3, in Banafsheha v. Nassir, Case No. B212290 (2d Dist., Div. 3 Dec. 29, 2009) (unpublished), found that Fennessy did not apply. The reason is that, unlike that prior published decision, the three defendants claimed costs after the case had concluded against all defendants. This meant there was no danger that plaintiff could be asked to pay costs for which one of the defendants had already been paid. The costs awards were affirmed.