LOSING PARTY PAYS PREVAILING PARTY'S COSTS IN CALIFORNIA LITIGATION

California Code of Civil Procedure sections 1032, 1033.5, 1034 and 998 provide:

1032
"(a)
As used in this section, unless the context clearly requires otherwise:

(1)
'Complaint' includes a cross-complaint.

(2)
'Defendant' includes a cross-defendant or a person against whom a complaint is filed.

(3)
'Plaintiff' includes a cross-complainant or a party who files a complaint in intervention.

(4)
'Prevailing party' includes the party with a net monetary recovery, a defendant in whose favor a dismissal is entered, a defendant where neither plaintiff nor defendant obtains any relief, and a defendant as against those plaintiffs who do not recover any relief against that defendant. When any party recovers other than monetary relief and in situations other than as specified, the 'prevailing party' shall be as determined by the court, and under those circumstances, the court, in its discretion, may allow costs or not and, if allowed may apportion costs between the parties on the same or adverse sides pursuant to rules adopted under Section 1034.

(b)
Except as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.

(c)
Nothing in this section shall prohibit parties from stipulating to alternative procedures for awarding costs in the litigation pursuant to rules adopted under Section 1034."

1033.5
"(a)
The following items are allowable as costs under Section 1032:

(1)
Filing, motion, and jury fees.

(2)
Juror food and lodging while they are kept together during trial and after the jury retires for deliberation.

(3)
Taking, video recording, and transcribing necessary depositions including an original and one copy of those taken by the claimant and one copy of depositions taken by the party against whom costs are allowed, and travel expenses to attend depositions.

(4)
Service of process by a public officer, registered process server, or other means, as follows:

(A)
When service is by a public officer, the recoverable cost is the fee authorized by law at the time of service.

(B)
If service is by a process server registered pursuant to Chapter 16 (commencing with Section 22350) of Division 8 of the Business and Professions Code, the recoverable cost is the amount actually incurred in effecting service, including, but not limited to, a stakeout or other means employed in locating the person to be served, unless those charges are successfully challenged by a party to the action.

(C)
When service is by publication, the recoverable cost is the sum actually incurred in effecting service.

(D)
When service is by a means other than that set forth in subparagraph (A), (B), or (C), the recoverable cost is the lesser of the sum actually incurred, or the amount allowed to a public officer in this state for that service, except that the court may allow the sum actually incurred in effecting service upon application pursuant to paragraph (4) of subdivision (c).

(5)
Expenses of attachment including keeper's fees.

(6)
Premiums on necessary surety bonds.

(7)
Ordinary witness fees pursuant to Section 68093 of the Government Code.

(8)
Fees of expert witnesses ordered by the court.

(9)
Transcripts of court proceedings ordered by the court.

(10)
Attorney's fees, when authorized by any of the following:

(A)
Contract.

(B)
Statute.

(C)
Law.

(11)
Court reporter fees as established by statute.

(12)
Court interpreter fees for a qualified court interpreter authorized by the court for an indigent person represented by a qualified legal services project, as defined by Section 6213 of the Business and Professions Code.

(13)
Models and blowups of exhibits and photocopies of exhibits may be allowed if they were reasonably helpful to aid the trier of fact.

(14)
Any other item that is required to be awarded to the prevailing party pursuant to statute as an incident to prevailing in the action at trial or on appeal.

(b)
The following items are not allowable as costs, except when expressly authorized by law:

(1)
Fees of experts not ordered by the court.

(2)
Investigation expenses in preparing the case for trial.

(3)
Postage, telephone, and photocopying charges, except for exhibits.

(4)
Costs in investigation of jurors or in preparation for voir dire.

(5)
Transcripts of court proceedings not ordered by the court.

(c)
Any award of costs shall be subject to the following:

(1)
Costs are allowable if incurred, whether or not paid.

(2)
Allowable costs shall be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.

(3)
Allowable costs shall be reasonable in amount.

(4)
Items not mentioned in this section and items assessed upon application may be allowed or denied in the court's discretion.

(5)
When any statute of this state refers to the award of 'costs and attorney's fees,' attorney's fees are an item and component of the costs to be awarded and are allowable as costs pursuant to subparagraph (B) of paragraph (10) of subdivision (a). Any claim not based upon the court's established schedule of attorney's fees for actions on a contract shall bear the burden of proof. Attorney's fees allowable as costs pursuant to subparagraph (B) of paragraph (10) of subdivision (a) may be fixed as follows: (A) upon a noticed motion, (B) at the time a statement of decision is rendered, (C) upon application supported by affidavit made concurrently with a claim for other costs, or (D) upon entry of default judgment. Attorney's fees allowable as costs pursuant to subparagraph (A) or (C) of paragraph (10) of subdivision (a) shall be fixed either upon a noticed motion or upon entry of a default judgment, unless otherwise provided by stipulation of the parties.
Attorney's fees awarded pursuant to Section 1717 of the Civil Code are allowable costs under Section 1032 of this code as authorized by subparagraph (A) of paragraph (10) of subdivision (a)."

1034
"(a)
Prejudgment costs allowable under this chapter shall be claimed and contested in accordance with rules adopted by the Judicial Council.

(b)
The Judicial Council shall establish by rule allowable costs on appeal and the procedure for claiming those costs."

998
"(a)
The costs allowed under Sections 1031 and 1032 shall be withheld or augmented as provided in this section.

(b)
Not less than 10 days prior to commencement of trial or arbitration (as provided in Section 1281 or 1295) of a dispute to be resolved by arbitration, any party may serve an offer in writing upon any other party to the action to allow judgment to be taken or an award to be entered in accordance with the terms and conditions stated at that time. The written offer shall include a statement of the offer, containing the terms and conditions of the judgment or award, and a provision that allows the accepting party to indicate acceptance of the offer by signing a statement that the offer is accepted. Any acceptance of the offer, whether made on the document containing the offer or on a separate document of acceptance, shall be in writing and shall be signed by counsel for the accepting party or, if not represented by counsel, by the accepting party.

(1)
If the offer is accepted, the offer with proof of acceptance shall be filed and the clerk or the judge shall enter judgment accordingly. In the case of an arbitration, the offer with proof of acceptance shall be filed with the arbitrator or arbitrators who shall promptly render an award accordingly.

(2)
If the offer is not accepted prior to trial or arbitration or within 30 days after it is made, whichever occurs first, it shall be deemed withdrawn, and cannot be given in evidence upon the trial or arbitration.

(3)
For purposes of this subdivision, a trial or arbitration shall be deemed to be actually commenced at the beginning of the opening statement of the plaintiff or counsel, and if there is no opening statement, then at the time of the administering of the oath or affirmation to the first witness, or the introduction of any evidence.

(c)
(1)
If an offer made by a defendant is not accepted and the plaintiff fails to obtain a more favorable judgment or award, the plaintiff shall not recover his or her postoffer costs and shall pay the defendant's costs from the time of the offer. In addition, in any action or proceeding other than an eminent domain action, the court or arbitrator, in its discretion, may require the plaintiff to pay a reasonable sum to cover costs of the services of expert witnesses, who are not regular employees of any party, actually incurred and reasonably necessary in either, or both, preparation for trial or arbitration, or during trial or arbitration, of the case by the defendant.

(2)
(A)
In determining whether the plaintiff obtains a more favorable judgment, the court or arbitrator shall exclude the post-offer costs.

(B)
It is the intent of the Legislature in enacting subparagraph (A) to supersede the holding in Encinitas Plaza Real v. Knight, 209 Cal.App.3d 996, that attorney's fees awarded to the prevailing party were not costs for purposes of this section but were part of the judgment.

(d)
If an offer made by a plaintiff is not accepted and the defendant fails to obtain a more favorable judgment or award in any action or proceeding other than an eminent domain action, the court or arbitrator, in its discretion, may require the defendant to pay a reasonable sum to cover postoffer costs of the services of expert witnesses, who are not regular employees of any party, actually incurred and reasonably necessary in either, or both, preparation for trial or arbitration, or during trial or arbitration, of the case by the plaintiff, in addition to plaintiff's costs.

(e)
If an offer made by a defendant is not accepted and the plaintiff fails to obtain a more favorable judgment or award, the costs under this section, from the time of the offer, shall be deducted from any damages awarded in favor of the plaintiff. If the costs awarded under this section exceed the amount of the damages awarded to the plaintiff the net amount shall be awarded to the defendant and judgment or award shall be entered accordingly.

(f)
Police officers shall be deemed to be expert witnesses for the purposes of this section. For purposes of this section, 'plaintiff' includes a cross-complainant and 'defendant' includes a cross-defendant. Any judgment or award entered pursuant to this section shall be deemed to be a compromise settlement.

(g)
This chapter does not apply to either of the following:

(1)
An offer that is made by a plaintiff in an eminent domain action.

(2)
Any enforcement action brought in the name of the people of the State of California by the Attorney General, a district attorney, or a city attorney, acting as a public prosecutor.

(h)
The costs for services of expert witnesses for trial under subdivisions (c) and (d) shall not exceed those specified in Section 68092.5 of the Government Code.

(i)
This section shall not apply to labor arbitrations filed pursuant to memoranda of understanding under the Ralph C. Dills Act (Chapter 10.3 (commencing with Section 3512) of Division 4 of Title 1 of the Government Code)."

For questions or comments, you are invited to contact the HIDALGO law firm.


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Government Claims  -  Arbitration Agreements
Losing Party Pays Costs