Court of Appeal of California, First Appellate District, Division Three, December 11, 2020

The heirs of decedent Richard Booker filed suit, alleging that Booker developed fatal mesothelioma from his exposure to defendants asbestos-containing products. The plaintiffs settled with most of the defendants, and a trial was held against the two remaining defendants, Vanderbilt Minerals LLC and Imerys. The jury found the two defendants liable for increasing the decedents risk of mesothelioma and apportioned 60-percent fault to Vanderbilt and 40-percent fault to Imerys.

The plaintiffs filed a memorandum of costs in the amount of $314,549.54, and Imerys responded with a motion to tax. Imerys sought to reduce the filing fees so that Imerys was only responsible for a one-seventh pro-rata share, and to omit all filing and motion fees related to other defendants. Imerys also sought to tax costs for depositions of corporate representative defendants other than Imerys, for depositions of experts designated by defendants other than Imerys, for the deposition of the plaintiffs expert, and for service of process on the other defendants. Citing Heppler v. J.M. Peters Co., 73 Cal.App.4th 1265 (1999), Imerys argued that when a plaintiff incurs costs associated with its case against numerous defendants, costs may be apportioned amongst the defendants for whom they were incurred.

The trial court partially granted the motion in the amount of $44,948.58. However, regarding Imerys request to apportion costs between it and the other defendants, the court found that it lacked discretion to do so, holding that the Code of Civil Procedure, section 1032, subdivision (a)(4) limits discretionary apportionment of costs to cases where a party recovers non-monetary relief. The trial court concluded that even if Heppler is treated as unique authority for the proposition that a California court can apportion a plaintiffs statutory costs between a judgment debtor and other defendants who prevailed at trial (or, by extension, who settled or were dismissed before trial), Heppler was distinguishable because it involved a construction defect action alleging several entirely distinct defects which made it unfair to burden one defendant, against whom the case was evidently simple, with extensive costs incurred to litigate the unrelated issues. Conversely, in the matter at hand, the plaintiffs claims were based on a single injury to which all defendants conduct alleged contributed in the same general way (asbestos exposure). Therefore, the trial court held that Heppler did not apply and declined Imerys request to tax costs related to other defendants. Imerys appealed this decision.

The right to recover costs under California law is governed by statute, and except as provided by statute, a prevailing party is entitled to recover costs in any action or proceeding (internal citations omitted). Pursuant to California statute Section 1033.5, allowable costs are those that are reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation. The determination of whether a cost item was reasonably necessary is a question of fact for the trial court and is reviewed for abuse of discretion. The dispute here centers on whether the trial court had discretion to apportion costs among the original seven defendants named in the case in order to reduce plaintiffs total recovery by the amounts attributable to the defendants other than Imerys,

The court of appeals examined Smock v. State of California, (2006) 138 Cal.App.4th 883, 889, where it rejected a similar request to apportion costs between two co-defendants. Ultimately, the court rejected Imerys argument that the weight of authorities supports its position that trial courts have discretionary authority in all cases to reduce costs against a defendant based on amounts apportionable to other defendants that are no longer in the case. The court found the cases cited by Imerys to be distinguishable, as they all involved situations where some but not all of the parties on the same side of the litigation prevailed against the party seeking costs.

The trial court declined to apportion costs after assuming arguendo that it had discretion to apportion under Section 1032, and the court of appeals found that Imerys failed to demonstrate that the court abused its discretion in doing so, as the courts refusal to tax costs related to other defendants did not exceed the bounds of reason. Ultimately, the court held that the trial court did not abuse its discretion in refusing to reduce plaintiffs recovery of costs by amounts attributable to the other defendants for filing, motions, corporate and expert depositions, and service of process, as such costs were reasonably necessary to the conduct of the litigation and not merely convenient or beneficial.

Link:

Trial Court's Refusal to Reduce Plaintiffs' Recovery of Costs by Amounts Attributable to Settled Defendants Affirmed - Lexology