“Unity of Interest” Doctrine Gives Discretion To Lower Courts in Awarding Costs.
In Toland v. Arredondo, Case Nos. F058619/F059182 (5th Dist. Mar. 1, 2011) (unpublished), one plaintiff was awarded $114,590 and another was awarded $12,585 by a jury against a corporate defendant, although an individual defendant (unified in interest with the corporate defendant) was let out through a directed verdict. The lower court then awarded these two plaintiffs expert witness fees after corporate defenant rejected their CCP § 998 offers. The lower court also denied the corporate defendant’s costs requests.
Both results were affirmed on appeal.
Wakefield v. Bohlin, 145 Cal.App.4th 963, 983-985 (2006), disapproved on another ground in Goodman v. Lozano, 47 Cal.4th 1327, 1338 (2010), was the reason that the lower court correctly denying costs to corporate defendant. That case established the “unity of interest” doctrine allowing the trial court discretion under CCP § 1032(a)(4) to deny costs to a winning defendant when that defendant was unified in interest with a defendant suffering an adverse jury verdict. The court has discretion to determine that the corporate defendant was not a prevailing party under (a)(4), something properly done in this case.
With respect to the expert witness fee awards to the two plaintiffs, nothing demonstrated that their 998 offers were in bad faith. The plaintiff winning $114,590 made a 998 offer for $29,000, and the other plaintiff made a 998 offer with a similar disparity between her offer and jury verdict. Nothing showed the offers were merely tactical or sent so as to “ring up” expert fees. (Jones v. Dumrichob, 63 Cal.App.4th 1258, 1263 (1998).)
Wrong Zip Code, In Tandem With Proof Of Non-Receipt Of Costs Memorandum, Required Reversal Of Adverse Costs Award.
The next one counsels to make sure that you put the right zip code on mail service proofs; otherwise, you just might get a reversal of a favorable costs ruling.
Rawlings v. Cliff’s River Marina, Case No. C060708 (3d Dist. Mar. 1, 2011) (unpublished) involved a situation where the lower court awarded $4,359.69 in costs to a prevailing cross-complainant. Losing cross-defendant had claimed that he had never received the costs memorandum, adducing proof of an incorrect zip code to loser’s then-attorney’s address and attorney’s declaration that she never got the costs memorandum. The lower court denied a CCP § 473 motion to vacate.
The appellate court reversed the costs award on due process grounds. Notice of hearing sent to the correct post office box, but with the wrong zip code does not constitute legally sufficient notice. (Moghaddam v. Bone, 142 Cal.App.4th 283, 288-289 (2006).) Loser was prejudiced by the lack of notice, because he failed to challenge the costs bill. The matter was remanded so loser could challenge the costs memorandum.
Check those proofs of service carefully–a wrong zip code could “cost” you and you could end up with "zip" (sorry for the puns).