Routine Costs: “Lack Of Unity Of Interest” With Co-Defendants Meant That Prevailing Defendant Gained An Award Of Routine Costs

Second District, Division 4 Affirms Costs Award in Favor of Prevailing Party.

     In Marina Glencoe, L.P. v. Neue Sentimental Film A.G., Case No. B203163 (2d Dist., Div. 4 Dec. 2, 2009) (unpublished), prevailing party defendant in a dismissed contractual breach action obtained a routine costs award of $14,697.58, which was appealed by the losing plaintiff, to no avail on appeal.

     Plaintiff’s main challenge was that defendant’s ownership of the co-defendants created a “unity of interest” that granted the trial court discretion to award and allocate costs, a discretion that it failed to exercise.

     Academically, the argument was correct. The trial court does have discretion to award or deny costs to a prevailing defendant where that defendant presented a unified defense with nonprevailing co-defendants. (Wakefield v. Bohlin, 145 Cal.App.4^th 963, 985 n. 6 (2006), disagreement recognized in Guerrero v. Rodan Termite Control, Inc., 163 Cal.App.4^th 1435, 1442-1445 (2008); Textron Financial Corp. v. National Union Fire Ins. Co., 118 Cal.App.4^th 1061, 1075 (2004); Slavin v. Fink, 25 Cal.App.4^th 722, 726 (1994).) However, the factual application was flawed—prevailing defendant and co-defendants filed separate answers and were represented by separate counsel, such that they did not have a “unity of interest.” This meant that prevailing defendant was properly awarded routine costs below.