Rossa Decision Found to Provide Dispositive Analytical Template.
Here is an interesting unpublished decision dealing with whether a successful appellant is entitled to recover the costs of borrowing money to make an undertaking deposit with the trial court as security during the appeal. The appellate court answered “no.”
In Andreini & Co. v. MacCorkle Ins. Service, Inc., Case No. A133473 (1st Dist., Div. 2 Sept. 9, 2013) (unpublished), a successful appellant obtained a subsequent lower court order allowing it to recoup $221,324.52 as costs on appeal, representing the amount of money spent in borrowing over $2 million which was deposited with the trial court clerk as an appellate undertaking. (A little bit, or about $6,500, was for costs of appeal unrelated to the deposit borrowing amount.) Respondents appealed and won.
The appellate court determined that the reasoning in Rossa v. D.L. Falk Constr., Inc., 53 Cal.4th 387, 399 (2012) provided the dispositive analytical template to resolve the issue. Although determining that the costs of borrowed funds to secure a letter of credit backing an appeals bond was not a recoverable costs of appeal in Rossa, the First District found that Rossa also covered the costs of borrowing money to make a trial court deposit as an undertaking.
However, in October 2012 in response to some inviting language by the state supreme court in Rossa, the Judicial Council amended CRC 8.278(d)(1)(F) to overrule Rossa and also provide that borrowed funds on appellate deposits were recoverable costs on appeal. So, the issue became whether this CRC was retroactive to this case. Because CRC retroactivity rules are the same as for statutes, the Court of Appeal determined the amendment was not retroactive. Appellant’s costs would have zoomed from $6,553.12 to $221,324.52, an increase of liability too significant to be deemed other than a different liability which is different than a non-retroactive clarification of existing law.
The end result is that appellant’s costs on appeal were modified from $2221,324.52 to $6,553.12 based on the appellate court’s modification on appeal.
BLOB OBSERVATION–The appellate court made reference to Banquo’s ghost. Know what this refers to? It comes from Shakespeare’s Macbeth, referring to Macbeth’s former friend, who he murdered. The friend’s ghost then comes back to haunt Macbeth. There you go!
"Macbeth seeing the ghost of Banquo" by Théodore Chassériau.