Equitable Considerations Do Not Override “Matter Of Right” CCP § 1032(b) Mandate.
In Cheung v. Cheung-Wick, Case No. B254254 (2d Dist., Div. 6 July 28, 2015) (unpublished), brother-in-law did prevail on a cross-complaint in a probate dispute after the trial judge decided the other side did not carry their burden of proof as cross-complainants. However, the trial judge denied costs of suit to brother-in-law.
Well, as we all know, this is why appellate courts exist. The 2/6 DCA reversed on this issue after finding that the opponents’ equitable considerations did not mandate denying brother-in-law “as a matter of right” costs under CCP § 1032(b), given that he did prevail. Reversed and remanded on the costs issue, to award costs to brother-in-law.