Judge: Layne H. Melzer, Case: 2015-00826601, Date: 2023-05-25 Tentative Ruling
Defendants Martin D. Fern & Linda Taylor-Fern
1. Motion to Strike or Tax Costs
Plaintiff David T. & Linda Chamberlain
2. Motion to Strike or Tax Costs
Cross-Complainants Martin Fern and Linda Taylor-Fern, individually and as trustees of the Taylor-Fern Family Trust, and First Realm, LLC’s motion to strike costs filed by Cross-Defendants David and Linda Chamberlain is GRANTED.
Plaintiffs David and Linda Chamberlain’s motion to strike costs filed by Defendants Martin Fern and Linda Taylor-Fern, individually and as trustees of the Taylor-Fern Family Trust, and First Realm, LLC is GRANTED.
“As used in [Code of Civil Procedure section 1032], unless the context clearly requires otherwise: (1) ‘Complaint’ includes a cross-complaint (2) ‘Defendant’ includes a cross-defendant, a person against whom a complaint is filed, or a party who files an answer in intervention. (3) ‘Plaintiff’ includes a cross-complainant or a party who files a complaint in intervention. (4) ‘Prevailing party’ includes the party with a net monetary recovery, a defendant in whose favor a dismissal is entered, a defendant where neither plaintiff nor defendant obtains any relief, and a defendant as against those plaintiffs who do not recover any relief against that defendant. If any party recovers other than monetary relief and in situations other than as specified, the ‘prevailing party’ shall be as determined by the court, and under those circumstances, the court, in its discretion, may allow costs or not and, if allowed, may apportion costs between the parties on the same or adverse sides pursuant to rules adopted under Section 1034.” (Code Civ. Proc., § 1032, subd. (a).)
The Ferns argue that they, not the Chamberlains, are the prevailing parties under the statutory definition “where neither plaintiff nor defendant obtain[ed] any relief.” The Chamberlains argue they are the prevailing parties because the Ferns voluntarily dismissed their cross-complaint, first by dismissing two causes of action on December 19, 2019 and again by dismissing the remaining causes of action on December 23, 2022. They further contend that if the parties do not fall within the statutory definition of “prevailing party,” the court can determine who the prevailing party is and should find that the Chamberlains are because the Ferns failed to timely file their memorandum of costs and therefore, the Chamberlains are the only party with a “net monetary recovery.”
Under section 1032, subdivision (a)(4), a prevailing party includes "a defendant where neither plaintiff nor defendant obtains any relief," and "relief" in this sense “has been defined generally as ‘[d]eliverance from oppression, wrong, or injustice.... [I]t is used as a general designation of the assistance, redress, or benefit which a complainant seeks at the hands of a court.... [In addition to “monetary relief” noted in section 1032, the term includes, among other remedies,] specific performance, injunction, or the reformation or rescission of a contract. [Citations.]” (Childers v. Edwards (1996) 48 Cal.App.4th 1544, 1549.)
The Ferns rely on cases which found “‘[a] defendant who defeats the plaintiff's claim on a complaint, but who recovers nothing on his [or her] cross-complaint against the plaintiff, is nevertheless a prevailing party entitled to costs.’ [Citations.]” (Zintel Holdings, LLC v. McLean (2012) 209 Cal.App.4th 431, 438; see also McLarand, Vasquez & Partners, Inc. v. Downey Savings & Loan Assn. (1991) 231 Cal.App.3d 1450, 1454.) However, those cases involved determinations on the merits and not dismissals. The Ferns did not cite any authority to show that they fall within the definition of prevailing parties as “defendants where neither plaintiff nor defendant obtains any relief” in a situation where both the complaint and cross-complaint were dismissed on each side.
The Chamberlains’ argument that they are the prevailing party because the Ferns voluntarily dismissed their cross-complaint ignores the fact that the Chamberlains’ complaint was dismissed by the court. The Chamberlains’ secondary argument that they should be the prevailing party because the Ferns failed to timely file their memorandum of costs is unsupported by authority and puts the “cart before the horse”.
“In cases where both parties achieved a status that Code of Civil Procedure section 1032 defines as a prevailing party, the action “falls into the ‘situation other than as specified’ category, calling for an exercise of the trial court's discretion.” [Citation.]” (Wohlgemuth v. Caterpillar Inc. (2012) 207 Cal.App.4th 1252, 1264.) In exercising that discretion, the court compares “the relief sought with that obtained, along with the parties’ litigation objectives as disclosed by their pleadings, briefs, and other such sources.” (On-Line Power, Inc. v. Mazur (2007) 149 Cal.App.4th 1079, 1087.)
Here, the Ferns clearly fall within section 1032, subdivision (a)(4)’s definition of a prevailing party as “defendant(s) in whose favor a dismissal is entered.” Likewise, the Chamberlains clearly fall within the same definition, as “costs are available as a matter of right to a cross-defendant in whose favor a dismissal is entered.” (Great Western Bank v. Converse Consultants, Inc. (1997) 58 Cal.App.4th 609, 612; see also City of Long Beach v. Stevedoring Services of America (2007) 157 Cal.App.4th 672, 680.) As such, this situation falls into one other than specified by section 1032 and permits the court “to allow costs, or not.”
“For cost awards under Code of Civil Procedure section 1032, subdivision (a)(4), there is a single prevailing party. [Citation.]” (Sharif v. Mehusa, Inc. (2015) 241 Cal.App.4th 185, 194.) Because the Chamberlains and the Ferns are essentially one party versus another, they cannot both be prevailing parties for cost purposes.
The court exercises its discretion and finds there was no prevailing party and neither side is entitled to costs. Neither party obtained any relief, nor did either party achieve any of their litigation objectives. The Chamberlains’ complaint was dismissed and they elected to dismiss their appeal. After the appeal was dismissed, the Ferns could have pursued their cross-complaint but they chose to dismiss it. There is no indication that the Ferns obtained any consideration from the Chamberlains in exchange for their voluntary dismissal. Accordingly, both motions to strike are GRANTED.
Clerk to give notice of ruling.