The prevailing party in Gardner v. McCoy, Case No. C067564 (3d Dist. Nov. 13, 2012) (unpublished) was bummed when the lower court did not award him the costs of an appraisal under a lease clause saying that the successful party would recover his “costs and expenses.” That ruling by the trial judge was affirmed on appeal because prevailing party improperly sought recovery through a costs memorandum, rather than putting on proof of expenses at the trial stage--showing the difference between what must be done when potentially seeking contractually allowable costs of a broader nature than routine costs, especially depending on the venue in which you are litigating. (See Arntz Contracting Co. v. St. Paul Fire & Marine Ins. Co., 47 Cal.App.4th 464, 492 (1996) [must be plead and proven as damages].)
BLOG UNDERVIEW--This issue is far from settled. Our local Santa Ana court has ruled that these type of costs can be sought and recovered through a costs memorandum, not following the logic that they have to be pled and proven as damages. (Thrifty Payless, Inc. v. Mariners Mile Gateway, LLC, 185 Cal.App.4th 1050 (2010).) However, to add further fuel to the fire in this area, see our February 1, 2012 post on the Harbison-Mahony-Higgins Builder unpublished decision that suggests Thrifty Payless may not have been correctly decided.
I’m thinking it over. . .
Comments