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Rodriguez v. Honeywell International12/29/2003
. (1990) 218 Cal.App.3d 1192 (Fennessy) in the trial court, and continues to rely on it on appeal. In Fennessy, a plaintiff sued six defendants for wrongful discharge. (Id. at p. 1194.) One defendant prevailed through a motion for summary judgment. (Ibid.) He then filed a memorandum of costs. (Ibid.) The trial court awarded the defendant not only the costs he incurred, but also all costs that had been incurred by all defendants up to that point. (Ibid.) The plaintiff appealed and the appellate court reversed, ruling that "where a prevailing party incurs costs jointly with one or more parties who remain in the litigation, during the pendency of the litigation that party may recover only costs actually incurred by a party or in its behalf in prosecuting or defending the case." (Id. at p. 1196.)
Fennessy, supra, 218 Cal.App.3d 1192, is factually distinguishable because the claimed costs were actually incurred by the Rodriguezes and the Rays in their respective actions. This is not the situation of plaintiffs seeking costs that were jointly incurred with other non-prevailing plaintiffs. Rather, the trial court apportioned costs that were actually incurred by prevailing parties by dividing the claimed costs by the number of non-prevailing parties. Fennessy is not controlling.
Honeywell's reliance on Slavin v. Fink (1994) 25 Cal.App.4th 722 is similarly misplaced, in that it also involves the apportionment of costs between prevailing and non-prevailing coparties. In Slavin, a contractor sued a homeowner and her agent for recovery of construction costs. (Id. at p. 724.) The homeowner lost, but the agent prevailed. (Ibid.) The agent sought costs, which benefited the homeowner. (Ibid.) The trial court awarded the agent only a small percentage of the costs he sought. (Id. at pp. 724-725.) The apportionment was affirmed on appeal as a matter well within the trial court's discretion. (Id. at p. 726.) Here, there is no concern that the Rodriguezes and the Rays are claiming costs that were incurred by a non-prevailing coparty. Rather, the claimed costs were actually incurred against multiple non-prevailing opponents.
Honeywell failed to satisfy its burden of demonstrating that the claimed costs were unreasonable in amount and were unnecessarily incurred. The trial court abused its discretion in taxing the common costs based on the number of non-prevailing parties.
Notwithstanding our conclusion that the trial court erred in imposing an across-the-board reduction of the common costs, we find no error in the manner in which it taxed the service of process costs. The trial court treated these costs differently, taxing those costs, which were indisputably incurred in serving other defendants. The court relied on the cost memoranda, which showed that only $10 of the total service of process costs was incurred for serving Honeywell's predecessor-in-interest. The court's method of taxing costs in excess of this amount is not subject to our analysis of the proportional reduction imposed with respect to the common costs.
The orders taxing costs are reversed in part as follows: The proportional reduction of the filing and motion fees is reversed; the proportional reduction of the deposition fees is reversed. In all other respects, the orders taxing costs are affirmed. The trial court is directed to enter a new order in each case awarding plaintiffs their claimed costs for filing and motion fees and deposition fees and taxing the service of process costs that are in excess of those actually incurred in serving Honeywell or its predecessor-in-interest. Plaintiffs shall receive their costs on appeal.
We concur:
Kay, P.J.
Reardon, J.
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