Costs: Awarded Routine Costs Do Not Have To Be Apportioned Per Losing Defendant’s Fault

Beyond That, Losing Defendant Did Not Present Evidence or Argument on Which Particular Costs Should Be Stricken.

     In Smith v. Pneumo Abex LLC, Case No. B217063 (2d Dist., Div. 3 Sept. 17, 2010) (unpublished), plaintiffs obtained a sizable jury verdict for husband’s alleged exposure to asbestos for products manufactured by several defendants. Many of the defendants settled before trial, with three defendants proceeding to trial (but only defendant Abex apparently appealing the verdict). There were many post-verdict motions to determine how to apply the settlement credits. Plaintiffs were awarded $85,805.11 in costs, which was assessed against Abex. Both sides appealed the judgment, although Abex was the one complaining of the costs award.

     The Second District, Division 3 reversed the merits judgment with directions to enter a new specified judgment, but affirmed the costs award.

     Abex argued that it should only be liable for 5% of the costs, because it was only found 5% at fault. However, the appellate court observed that a similar argument was rejected in Nelson v. Anderson, 72 Cal.App.4^th 111, 122, 130 (1999).) An across-the-board reduction in that prior decision based on the numbers of plaintiffs, without regard to the reasons the costs were incurred, was found to constitute an abuse of discretion.

     However, there was also a proof problem with the defense’s objection to the costs award. Abex did not provide evidence to show that some of the requested costs related to non-Abex work or work that should be apportioned out. (Compare with situations where evidence did allow for apportionment of awardable and nonawardable costs—e.g., Vons Co., Inc. v. Lyle Parks Jr., Inc., 177 Cal.App.4^th 823, 828, 831-832 (2009); Bell v. Vista Unified School Dist., 82 Cal.App.4^th 672, 689 (2000).)