Striking Of Entire Costs Memo Reversed; However, Appellate Court Intimated That Not All Of The Claimed Costs May Be Reasonable In Nature.
California’s routine costs statutes are an interesting lot; they are in some instances mandatory and then discretionary power is vested in lower courts even if mandatory provisions do not kick in. This next case, even on appeal, illustrates these principles well—with the appellate court indicating a compass for further proceedings on remand.
Pritchett v. Ford Motor Co., Case No. F069860 (5th Dist. Feb. 24, 2016) (unpublished) is a situation where a plaintiff sued various defendants (including Ford Motor), and the primary defendant filed a cross-complaint against others (including cross-defendant Ford). Plaintiff settled with two of the defendants (but not Ford), and Ford obtained a directed verdict against primary defendant’s cross-complaint when that defendant did not appear at trial and Ford later defensed plaintiff’s claims. Cross-defendant Ford moved for recovery of routine costs against primary defendant who failed to appear at the trial on its cross-complaint. The trial judge struck Ford’s costs memorandum, awarding nothing.
The Fifth District reversed and remanded, determining the undisputed facts and construction of routine costs statutes presented de novo review issues on appeal.
The main problem for primary defendant/cross-complainant was that Ford obtained a dismissal when cross-complainant failed to appear at trial—analogous to routine costs awarded for dismissals based on mootness; put another away, a “dismissal is a dismissal” in most situations under Code of Civil Procedure section 1032’s routine costs mandate. (City of Long Beach v. Stevedoring Services of America, 157 Cal.App.4th 672, 679-680 (2007).)
Primary defendant/cross-complainant argued that a good faith settlement determination in its settlement with plaintiff barred the costs recovery. The appellate court rejected this notion based on the fact that good faith settlements only eliminate exposure against a settling joint tortfeasor; if a joint tortfeasor goes on to pursue a cross-claim against a nonsettling defendant, that joint tortfeasor can be liable for costs relating to subsequent activities against the nonsettling defendant/cross-defendant.
However, here is the rub in this case, and it is an interesting civility/professionalism observation of import. Citing some ethic guidelines, the appellate court believed Ford’s counsel should have called primary defendant/cross-complainant to see if it was seriously going to pursue the cross-claim after settling out with everyone else. If this had been done, Ford might have known that defendant/cross-complainant was not going to appear for trial and avoided a lot of the claimed costs. So, this one was remanded for a “re-do” on costs, but with a lot of guidance on how discretion might be exercised in the next proceeding.