Apportionment May Be Required In Response to Motion to Tax Costs, But Trial Court Erred By Not Allowing Allocation After Raising Apportionment Objection Sua Sponte.
Justice Bedsworth, for a 3-0 panel, held in Morris v. Wilson, Case No. G047534 (4th Dist., Div. 3 June 20, 2013) (unpublished) that a defendant is not required to apportion costs in a costs memorandum, as the winner of a defense-served CCP § 998 offer, after the plaintiffs proceeded in lockstep on a single theory and were represented by the same attorney. (Cf. Acosta v. SI Corp., 129 Cal.App.4th 1370, 1376 (2005).) If apportionment is raised as an objection on a motion to tax costs, then the defense can choose to offer evidence of apportionment if it is deemed appropriate. But the cost-objecting parties must demonstrate what postoffer items were specific to each plaintiff in a timely filed motion to tax costs.
What happened in Morris was that the losing 998 plaintiffs proceeding under a single theory of recovery never filed a motion to tax costs. The lower court raised the issue for them in a tentative ruling on defendant’s motion to amend the judgment to award to him the difference between his postoffer costs and the amounts the jury awarded to plaintiffs (an offset request given that plaintiffs did not bear the 998 offer), but the trial judge refused to consider a defense proferred declaration apportioning costs between the two plaintiffs in the wake of the tentative. (Plaintiffs never opposed the defense motion for an offset.) The appellate court found that the declaration should have been considered, reversing the lower court’s sustaining of the tentative and failure to consider the apportionment proof by continuing the hearing. On remand, the lower court had to review the declaration and then rule on the costs memorandum/offset issue.