Fourth District, Division One Holds that Plat Map Expense Was Recoverable As a Routine Cost In Encroachment Action.
Although we normally deal with attorney’s fees, which are more akin to nonroutine costs (a distinction that will be explored in a future post on the issue of whether fee awards must be supported by an undertaking in order to stay collection), a recent unpublished case from the San Diego-based Court of Appeal agreed with their colleagues from the Second District in upholding a lower court’s discretion to award as routine costs the expenses of an item that were not expressly listed or not expressly prohibited in Code of Civil Procedure section 1033.5, the routine costs statute.
Roberts v. Ross, Case No. D050732 (4th Dist., Div. 1 June 25, 2008) (unpublished) was a fence encroachment action brought by a plaintiff who attached a plat map to his complaint, because California Rules of Court, rule 3.1151 requires a litigant to describe the encroached premises in an injunctive action through drawings, plot plans, photographs, or other appropriate means. Plaintiff obtained summary judgment against defendants, who were ordered to remove a fence to the extent it encroached on an easement and public right-of-way. The court also awarded plaintiff $1,585 in costs for preparation of the plat map. Defendants appealed the merits and costs award, losing both challenges in the reviewing court.
Presiding Justice McConnell, the writer for a 3-0 panel of the Fourth District, Division One, found the trial court did not abuse its discretion in awarding the plat map expenses as a routine cost in plaintiff’s favor.
Liminally, in dicta, the appellate court appeared to agree that the plat map fit the definition of “model” within the meaning of Code of Civil Procedure section 1033.5(a)(12). However, it upheld the costs award based on its agreement with the reasoning of the Second District, Division Seven in Seever v. Copley Pres, Inc., 141 Cal.App.4th 1550 (2006).
Seever held that a lower court has discretion, under section 1033.5(c)(4), to award a cost item—even if not identified in section 1033.5(a)[express cost “grant” items] or section 1033.5(b)[express cost “prohibited” items]—if the item was reasonably necessary to the conduct of the litigation. (141 Cal.App.4th at 1558-1559.) The Fourth District, Division One agreed completely with the reasoning in Seever, which is important because Seever parted company in part with more limiting language in Applegate v. St. Francis Lutheran Church, 23 Cal.App.4th 361, 363-364 (1994). Because the plat map is neither identified nor prohibited in sections 1033.5(a)-(b), it certainly was allowable as a routine cost because it depicted the encroached area and aided the trier of fact in the later summary judgment proceeding won by plaintiff. The cost award was affirmed.
(BLOG NOTE—Seever is must reading on the scope of the routine costs statute, plus is also important on the validity of 998 offers that allow the trial court discretion to award “costs and fees” as it later determines according to proof. On this last point, we will cover it separately in a post to come soon.)
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