However, Dismissal Did Trigger Routine Costs Recovery To Be Considered On Remand.
In Buck v. Brooks, Case No. A142929 (1st Dist., Div. 3 Dec. 5, 2016) (unpublished), plaintiff limited partner sued to obtain more accountability from defendant general partner as far as the running of a limited partnership owning a San Leandro shopping center. Post-lawsuit, plaintiff did obtain some of her litigation objectives by having defendant restore profit distributions, deposit partnership funds into interest-bearing accounts, and allow her inspection of partnership documents, even though demurrers were being filed by general partner along the way. Plaintiff limited partner eventually voluntarily dismissed her action without prejudice, prompting defendant to file a costs memorandum and attorney’s fees motion.
The lower court granted plaintiff’s motion to tax costs and denied the defense fee motion, with defendant appealing both determinations.
“Split verdict” on appeal, but more on plaintiff’s side.
The fee motion was correctly denied based on Santisas [a case on our “Leading Cases” list]. Even though the limited partnership fees clause was broad, it did not define “prevailing party” such that general principles applied. Beyond that, the record showed that plaintiff did obtain several of her litigation objectives, justifying the lower court to conclude the action was not meritless and that she gained enough to prevent defendant from being the “prevailing party.”
However, a different matter was presented as far as the routine costs denial. Defendant was a prevailing party, for costs, based on plaintiff’s dismissal so as to result in a remand. But the appellate court did observe that the partnership document photocopy expense needed to be looked at anew to make sure it was necessary and convenient for the litigation in the “re-do” examination.