Fourth District, Division One Cannot Reconcile Award, But Gives Respondents A Choice For Outright Affirmance With No Remand Proceedings.
Once in a while, you see a case where appellate jurists display some uncanny savvy in resolving an appeal. In the next case, the appellate panel had difficulty reconciling a costs award based on other parts of the trial court’s determination. However, it had no trouble ascertaining the undisputed part of the costs award. So, in the end, the Court of Appeal gave respondents an interesting choice: return the costs determination for consideration on remand or consent to a reduction to the level of the costs award disputed by no one. Given that the amount in controversy is only $21,082.67, we blogs think the latter alternative was fashioned to give respondents something to think about, long and hard, before deciding to litigate anymore.
This case model of an appellate “election of remedies” arose in a costs award context, because the trial court did award some routine costs but denied attorneys’ fees of more than $300,000 to parties who believed they prevailed (but did not for fee entitlement purposes). The fee denial determination was not appealed. Because the “prevailing party” standard for an award of routine costs is different than the analysis for a fee award, the trial court eventually awarded $32,527.82 in costs to respondents, with appellants challenging the costs award on appeal.
In Express Companies, Inc. v. Taylor, Case No. D052083 (4th Dist., Div. 1 Sept. 3, 2008) (unpublished), Justice McDonald—writing for a 3-0 panel of the Fourth District, Division One—determined that the trial court’s award was riddled with “irreconcilable inconsistency among the rulings contained in the minute order.” No one disputed that $11,209.08 in routine costs were fully justified. However, the biggest problem was that the lower court had stricken most of the $21,082.67 material discrepancy (given that a few other items beyond this were correctly denied) because they improperly sought recovery of legal research costs, trial exhibit costs, and trial costs. Yet, later, the trial court then allowed recovery of the $21,082.67 as “travel costs” even though none of the prevailing parties’ submissions came close to substantiating this amount.
The appellate panel noted that most of the “travel costs”—mainly local mileage charges incurred for local travel by attorneys—were not recoverable because they were outside the scope of Code of Civil Procedure section 1033.5(a)(13), the catchall costs provision. (See Ladas v. California State Auto Assn., 19 Cal.App.4th 761, 775-776 (1993). (Justice McDonald did observe that the lower court had correctly struck legal research costs, “trial exhibits” costs, and amorphous “trial costs” pursuant to Ladas.) This meant there was no legal basis upon which to hinge the award of “travel costs.”
However, because one of the travel costs item involved travel to a deposition in Idaho (potentially recoverable under Code of Civil Procedure section 1033.5(a)(3)), the appellate panel fashioned an election for respondents: either seek some substantiated “travel costs” on remand or simply accept a reduction to the undisputed $11,209.08 portion of the costs award within 30 days from the date of the appellate remittitur. Given that the Court of Appeal also directed that each side should bear its own costs on appeal, a fairly direct message was sent to respondents to think seriously about electing to accept the second option. This unpublished opinion exhibits creative appellate decision making with an eye towards resolving the remaining dispute between the litigants.