Morris v.
Filed 6/20/13 Morris v. Wilson CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE
DISTRICT
DIVISION THREE
TARON
EUGENE MORRIS et al.,
Plaintiffs and Respondents,
v.
JACOB DANIEL WILSON,
Defendant and
Appellant.
G047534
(Super. Ct.
No. 30-2010-00344370)
O P I N I O
N
Appeal from a judgment
of the Superior Court
of
County, Andrew P. Banks, Judge. Reversed and remanded with directions.
Law Offices of Tioni A.
Pham, Tioni A. Pham; and Grace Ogburn for Defendant and Appellant.
No appearance for
Plaintiffs and Respondents.
INTRODUCTION
only issue in this appeal is whether a defendant who may be entitled to costs
under Code of Civil Procedure section 998
because the plaintiffs did not accept his offers to compromise and did not do
better at trial – must apportion the costs between or among multiple
plaintiffs. The trial court denied the
motion of appellant Jacob Wilson to assess costs and enter judgment against
respondents Taron Morris and Janae Vannell because he filed a single memorandum
of costs, without indicating which costs applied to which plaintiff.
We reverse. We have found no authority for requiring a
defendant whose costs may exceed the plaintiffs’ jury verdict to apportion
costs when he files his memorandum of costs after the plaintiffs proceeded in
lockstep on a single theory and were represented by the same attorney. If the plaintiffs objected to the costs bill,
they were required to move to tax costs in the trial court. They made no such motion.
evaluate Wilson’s request for costs
and a judgment in his favor.
FACTS
Morris and Vannell sued Wilson
for negligence in connection with a car accident involving both of them. The same lawyer represented both plaintiffs,
and the single complaint stated causes of action on behalf of both plaintiffs
together. Wilson
made individual statutory offers to compromise to each plaintiff for $10,000 in
February 2011, offers that neither plaintiff accepted.
The case went to trial
in November 2011. The jury awarded
Morris $7,000 and Vannell $6,000 in total damages (including general damages).
Plaintiffs filed a
posttrial memorandum of costs seeking
over $9,000 in costs. Wilson
filed a motion to tax costs, which the court granted in its entirety, reducing
the plaintiffs’ total costs award to $485.
Wilson
then filed his own memorandum of costs,
along with a motion to amend the judgment to award to him the difference
between his postoffer costs and the amounts the jury awarded to
plaintiffs. He claimed over $16,000 in
costs, an amount that exceeded the jury awards to both plaintiffs by about
$2,000. Plaintiffs did not oppose this
motion.
The trial court issued a
tentative ruling denying the motion because Wilson
had not apportioned his costs. On the
day of the hearing, Wilson filed an
additional declaration breaking out the costs he was seeking for each
plaintiff. The court refused to consider
the declaration, because of the late filing, and the tentative ruling became
final.
DISCUSSION
We review an issue of
statutory or rule of court interpretation de novo. (Mercury
Interactive Corp. v. Klein (2007) 158 Cal.App.4th 60, 81.) Section 998 permits either a defendant or a
plaintiff to serve an offer to compromise not less than 10 days before trial
commences. If an offer is not accepted
before trial or within 30 days after it is made, it is deemed withdrawn. (§ 998, subd. (b).)
Section 998, subdivision
(c)(1), provides: “If an offer made by a
defendant is not accepted and the plaintiff fails to obtain a more favorable
judgment . . . the plaintiff shall not recover his or her postoffer costs and
shall pay the defendant’s costs from the time of the offer. In addition, . . . the court . . . , in its
discretion, may require the plaintiff to pay a reasonable sum to cover costs of
the services of expert witnesses, who are not regular employees of any party,
actually incurred and reasonably necessary in either, or both, preparation for
trial . . . , or during trial . . . , of the case by the defendant.†Section 998, subdivision (e), provides: “If an offer made by a defendant is not
accepted and the plaintiff fails to obtain a more favorable judgment . . . ,
the costs under this section, from the time of the offer, shall be deducted
from any damages awarded in favor of the plaintiff. If the costs awarded under this section
exceed the amount of the damages awarded to the plaintiff the net amount shall
be awarded to the defendant and judgment . . . shall be entered
accordingly.â€
Having allowed Wilson’s
offers to compromise to lapse and having obtained a less favorable judgment at
trial, Morris and Vannell cannot collect any postoffer costs.
postoffer costs and may be liable for expert witness fees, in which case
Wilson’s costs may exceed their jury awards.
If they do, Wilson would be entitled to a judgment in his favor. The question then becomes whether any statute
or rule required Wilson to apportion his costs between the two plaintiffs.
A verified memorandum of
costs is prima facie proof of their propriety, and it is the responsibility of
the party opposing the costs to point out errors. (Ray v.
Clark (1922) 57 Cal.App. 467, 468-469.)
“The ‘failure to file a motion to tax costs constitutes a waiver of the
right to object’†to a costs bill. (
287, 289-290.)
Acosta v. SI Corp. (2005) 129 Cal.App.4th 1370 (
similar to the facts in this case. In
Corporation on a single theory – liability for a defective product – and
lost. The company submitted a single
costs bill for all the plaintiffs, and the plaintiffs moved to tax costs on the
ground that the company had to apportion costs among all the plaintiffs. The appellate court held that section 1032
did not require a prevailing defendant to apportion costs among plaintiffs
“where the plaintiffs were represented by the same law firm and pursued a
single cause of action in a joint trial.â€
(Acosta, supra, 129 Cal.App.4th at p. 1376.)
The court further pointed out that the California Rules of Court
relating to the filing of costs bills speak of a “memorandum of costs†in the
singular, not separate ones for each nonprevailing party. (Ibid.;
see Cal. Rules of Court, rule 3.1700(a)(1).)
Finally, the court held that the nonprevailing plaintiffs were jointly
and severally liable for costs “because the plaintiffs joined together
(represented by a single attorney) in a single theory of liability against a
defendant who prevailed. It is up to the
plaintiffs in a motion to tax costs to point out that some costs are not related
to a joint theory of liability, but are specific to a particular plaintiff, and
it is therefore not fair to include these in a joint award.†(Acosta,
Although we have found
no published case addressing the issue in this case, we conclude a defendant whose
offer to compromise was larger than the plaintiff’s subsequent award is in much
the same position for cost-assessment purposes as the prevailing defendant in
Where, as here, a defendant was sued jointly by multiple plaintiffs on a
single theory of liability and represented by the same attorney, there is no
requirement to apportion the costs requested under section 998 between or among
plaintiffs. Plaintiffs who object must
file a motion to tax costs, pointing out the postoffer items that were specific
to each plaintiff.
In this case, Morris and
Vannell did not object to Wilson’s memorandum of costs. The trial court, however, did it for them, in
the tentative ruling. After reading it,
Wilson filed a declaration apportioning the costs between the two plaintiffs, a
declaration the trial court refused to consider because of its late filing.
have considered the declaration, continuing the hearing if necessary.
We return the matter to
the trial court for this purpose: to
consider the memorandum of costs and the declaration, to award those costs to
Wilson to which he is entitled, to exercise its discretion as to the expert
fees, and to enter judgment accordingly.
We note, however, that some of the costs on Wilson’s memorandum are
pre-offer costs, which he, as a losing defendant, may not recover.
v. California State Auto. Assn (1993) 19 Cal.App.4th 761, 774 [court has no
discretion to award costs not authorized by statute].)
DISPOSITION
The order denying
Wilson’s motion to augment the judgment is reversed and the matter is remanded
to the trial court with instructions to rule on Wilson’s memorandum of costs
and apportionment declaration under sections 998, 1032 and 1033.5 and to enter
judgment accordingly. Appellant is
entitled to his costs on appeal.
BEDSWORTH,
J.
WE CONCUR:
RYLAARSDAM,
ACTING P. J.
MOORE, J.
name="_ftn1" title=""> [1] All further statutory references
are to the Code of Civil Procedure.
name="_ftn2" title=""> [2] Respondents have also not filed a
brief in this court.
