First District, Division Four Eliminates This Item From Lower Court Costs Award.
In Belen v. Taylor, Case No. A118433 (1st Dist., Div. 4 Aug. 25, 2008) (unpublished), defendant Taylor suffered a default judgment under trespass/encroachment theories by which he was ordered to remove a fence/garage, ordered to award damages to plaintiff, and was ordered to pay $2,239.50 in costs as the losing party for his adversary’s preparation of a property survey before plaintiff filed her trespass action. A permanent injunction was prayed for under plaintiff’s complaint. On appeal, the surveyor’s costs were eliminated as a cost item awardable to plaintiff.
The First District, Division Four determined that the trial court had no discretion to award costs “not expressly allowable” under Code of Civil Procedure sections 1033(a)-(b). The key distinction is that no discretion exists to award fees prohibited under these same costs provisions. (See Science Applications International Corp. v. Superior Court, 39 Cal.App.4th 1095, 1103 (1995).) The appellate panel decided that the surveyor expense either was an investigative cost (prohibited under section 1033.5(b)(2)) or an expert witness expense not ordered by the court (prohibited under section 1033.5(b)(1)). Thus, it was not recoverable.
BLOG OBSERVATION—We can make the argument that this unpublished decision is in conflict with Roberts v. Ross, an unpublished decision from the Fourth District, Division One reaching a contrary result. (See the discussion of Roberts v. Ross in our June 27, 2008 post.) Roberts found that a plat map expense was necessary for the conduct of the litigation under section 1033.5(c)(4) and not expressly prohibited, especially since a map was necessary where injunctive relief was requested in an encroachment action. Because permanent injunctive relief was requested in Belen, one can argue that the Roberts’ rationale is divergent. That is the great thing about American jurisprudence; time will only tell who is correct in future published decisions.