First District, Division 3 Sustains $12,000 Costs Award Because Litigant Was Not Amicus Curiae.
For those of you briefing on behalf of amici curiae, do not despair. A recent unpublished decision, arising out of the same-sex couple 2008 decision, confirms that amici curiae cannot be exposed to routine cost awards should they lose their position before a court. After all, they are just “friends of the court” and have no direct stake in the matter. The problem in In re Marriage Cases, Case No. A123634 (1st Dist., Div. 3 Aug. 18, 2009) (unpublished) is that the party hit with costs was determined to be a true party, not just an amicus in status. The end result was that the party was liable for about $12,000 in costs as a losing litigant. Even though the litigant lost based on a lack of standing, routine costs are awardable against an unsuccessful litigant on this technical basis alone. (See, e.g., Larry Menke, Inc. v. DaimlerChrysler Motors Co., 171 Cal.App.4th 1088, 1095 (2009).)