Opinion
G054349
01-30-2018
CHARLES A. BREWER III et al., Plaintiffs and Appellants, v. BALDA INVESTMENTS USA et al., Defendants and Respondents.
Theodora Oringher, Rod Pacheco, Brian Neach; Brewer & Brewer and Lance A. Brewer for Plaintiffs and Appellants. Foley & Lardner and Tami S. Smason for Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 30-2015-00820315) OPINION Appeal from an order of the Superior Court of Orange County, Randall J. Sherman, Judge. Affirmed. Theodora Oringher, Rod Pacheco, Brian Neach; Brewer & Brewer and Lance A. Brewer for Plaintiffs and Appellants. Foley & Lardner and Tami S. Smason for Defendants and Respondents.
* * *
INTRODUCTION
Code of Civil Procedure section 1032, subdivision (b) requires the trial court to award to a "prevailing party" as "a matter of right . . . costs in any action or proceeding." Subdivision (a)(4) of section 1032 defines the term "'prevailing party'" to include "a defendant in whose favor a dismissal is entered." After plaintiffs dismissed their entire lawsuit, the trial court found defendants to be the prevailing parties and awarded them the costs they incurred in that action. We affirm the court's order denying plaintiffs' motion to strike or tax costs.
All further statutory references are to the Code of Civil Procedure unless otherwise specified.
Here, plaintiffs submitted a demand for arbitration asserting certain claims against a single defendant, Balda Investments USA. Over 10 months later, plaintiffs commenced this action by filing a complaint in the superior court against Balda Investments USA and others, which alleged 16 causes of action, none of which had been asserted against Balda Investments USA in the arbitration proceeding. The trial court granted Balda Investments USA's motion to compel arbitration of the claims asserted against it in the judicial action, and stayed the judicial action pending completion of the arbitration proceeding.
A panel of three arbitrators rendered a 20-page decision explaining in detail the panel's resolution of the claims plaintiffs asserted in the arbitration proceeding against Balda Investments USA. The arbitration panel awarded plaintiffs $400,000 in damages plus their arbitration fees and costs. The arbitration award did not reference any claims in the judicial action, much less resolve any such claims. The trial court granted plaintiffs' petition to confirm the arbitration award and awarded plaintiffs the $60 fee they incurred to file that petition. The trial court thereafter lifted the stay on the judicial action, ordered defendants to respond to the complaint, set a case management conference, and granted Balda Investments USA's request to stay discovery in the judicial action until the case management conference. After five other defendants filed a demurrer and another defendant filed a motion to quash, plaintiffs filed a request to dismiss the judicial action in its entirety without prejudice, and the clerk entered dismissal accordingly.
Balda Investments USA and other defendants filed a memorandum seeking costs they incurred in the judicial action. Plaintiffs filed a motion to strike or tax costs on the ground plaintiffs were the prevailing parties. The trial court denied the motion to strike or tax costs and awarded costs to Balda Investments USA and the other moving defendants.
As the prevailing parties in the arbitration proceeding, plaintiffs were awarded their arbitration fees and costs by the panel of arbitrators in the arbitration award. As the prevailing parties in successfully petitioning the court to confirm the arbitration award, plaintiffs were entitled to the cost of filing their petition in that special proceeding. (See Villinger/Nicholls Development Co. v. Meleyco (1995) 31 Cal.App.4th 321, 327 (Villinger) [petition to confirm arbitration award commences a special proceeding].)
Plaintiffs did not recover any relief against any defendant based on any claim plaintiffs asserted in the judicial action before requesting dismissal of that action; no claim asserted in that action was ever adjudicated—either in the arbitration or the judicial action. Thus, the trial court properly concluded the moving defendants were the prevailing parties in that action within the meaning of section 1032, subdivision (a)(4) and were entitled as a matter of right to an award of their costs in that action.
In DeSaulles v. Community Hospital of Monterey Peninsula (2016) 62 Cal.4th 1140 (DeSaulles), our Supreme Court recognized an exception to the rule mandating a finding of the defendant as the prevailing party upon dismissal if there was a monetary settlement agreement that caused the plaintiff to dismiss the complaint. Here, plaintiffs did not argue in the trial court, and do not argue on appeal, that the parties had entered into a settlement agreement—monetary or otherwise—that caused the dismissal of the judicial action, and our record does not show the existence of such an agreement. DeSaulles therefore is inapplicable.
BACKGROUND
The Charles C. Brewer Company was in the business of plastic injection molding. In December 2012, plaintiffs Charles A. Brewer III, Michael A. Brewer, Marilyn C. Brewer (as an individual and as trustee of The Marilyn C. Brewer Revocable Trust), Lance A. Brewer, and Christopher A. Brewer (plaintiffs), who were then shareholders of the Charles C. Brewer Company, entered into a stock purchase agreement. Plaintiffs agreed to sell all of that company's shares to Balda Investments USA for $38.5 million in cash plus a $5 million earn-out, contingent on the Charles C. Brewer Company's financial performance in 2013. The Charles C. Brewer Company was renamed Balda C. Brewer Company after that transaction closed.
I.
THE ARBITRATION ACTION
In December 2014, plaintiffs filed a demand for arbitration with the American Arbitration Association pursuant to the arbitration provision contained in the stock purchase agreement with Balda Investments USA. In their demand, plaintiffs asserted claims against Balda Investments USA for breach of the stock purchase agreement, breach of the implied covenant of good faith and fair dealing, and fraud based on allegations that Balda Investments USA's conduct before and after the stock purchase agreement closed was fraudulent and resulted in plaintiffs wrongfully being denied any of the contingent earn-out compensation provided for in the stock purchase agreement. Balda Investments USA filed an answer to the demand and a counterclaim; plaintiffs filed a response to the counterclaim and a supplemental claim; and Balda Investments USA filed a response to plaintiffs' supplemental claim.
The supplemental claim was asserted by plaintiff Lance Brewer and was based on allegations that Balda Investments USA's announcement regarding the arbitration proceeding without consulting and seeking approval from plaintiffs for such announcement resulted in Lance Brewer being asked to withdraw his name for a seat on the Luna Corporation board of directors.
II.
PLAINTIFFS FILE A LAWSUIT AGAINST BALDA INVESTMENTS USA AND OTHER
BALDA-RELATED ENTITIES AND INDIVIDUALS; THE TRIAL COURT DENIES PLAINTIFFS'
REQUEST FOR INJUNCTIVE RELIEF IN LIGHT OF BALDA INVESTMENTS USA'S BOND AND
GRANTS BALDA INVESTMENTS USA'S MOTION TO COMPEL ARBITRATION AND TO STAY
JUDICIAL PROCEEDINGS.
Over 10 months later, in November 2015, plaintiffs filed a complaint in Orange County Superior Court against Balda Investments USA, Balda Netherlands B.V., Balda Precision, Inc., Balda C. Brewer, Inc., Clere AG (formerly known as Balda Aktiengesellschaft or Balda AG), Oliver Oechsle, and Vincent Muir (the Balda defendants), among others. The complaint contained 16 causes of action for breach of contract and various torts; the complaint did not include the same breach of contract, breach of the implied covenant, and fraud claims against Balda Investments USA that were being asserted by plaintiffs in the arbitration proceeding.
Two days later, plaintiffs appeared ex parte seeking a temporary restraining order and an order to show cause why a preliminary injunction should not issue pending trial to enjoin some of the Balda defendants "and their employees, representatives, attorneys, servants, agents, affiliates, and subsidiaries, and persons acting with them or on their behalf from selling, transferring, disbursing, distributing and/[or] otherwise disposing of Balda USA's assets consisting of all the BCB [Balda C. Brewer] stock and the BCB stock sale proceeds." Plaintiffs' request for injunctive relief was based on reports that the Balda defendants had negotiated a transaction to sell all of the assets of Balda Investments USA to another entity in exchange for money that would not be paid to Balda Investments USA but to Balda AG, located overseas. Plaintiffs feared if that transaction went forward, and plaintiffs thereafter prevailed at arbitration against Balda Investments USA, Balda Investments USA would no longer have any assets from which an arbitration award might be satisfied.
The day after plaintiffs filed their ex parte application, Balda Investments USA filed a motion to compel arbitration of plaintiffs' claims against it and to stay all judicial proceedings.
The trial court denied plaintiffs' ex parte application for a temporary restraining order without ruling on the merits because Balda Investments USA submitted to the court a bond in the amount of $5 million with a premium cost of $50,000. The trial court later denied plaintiffs' request for a preliminary injunction, without ruling on the merits, because the $5 million undertaking filed by Balda Investments USA would remain in effect until the trial court confirmed any final award in the arbitration proceeding, thereby mooting the asserted need for injunctive relief.
The trial court granted Balda Investments USA's motion to compel arbitration. The court also ordered the judicial proceedings stayed pending resolution of the arbitration proceeding.
III.
THE ARBITRATION AWARD IS ISSUED AND CONFIRMED; THE TRIAL COURT ORDERS THE
STAY OF THE JUDICIAL ACTION LIFTED AND LITIGATION RESUMES; AFTER FIVE OF THE
BALDA DEFENDANTS FILE A DEMURRER AND ONE BALDA DEFENDANT FILES A MOTION
TO QUASH, PLAINTIFFS REQUEST THE DISMISSAL OF THE ENTIRE JUDICIAL ACTION
AGAINST ALL DEFENDANTS, WITHOUT PREJUDICE.
In April 2016, a panel of three arbitrators issued its decision in which the panel awarded plaintiffs $400,000 in compensatory damages based on plaintiffs' "post-acquisition fraud" claim; the arbitrators did not find in favor of plaintiffs on any of their other claims, or in favor of Balda Investments USA on its counterclaim. The arbitrators concluded plaintiffs were the prevailing parties in the arbitration proceeding and awarded them their arbitration fees and costs in the total amount of $179,896, which was comprised of plaintiffs' share of the administrative fees and expenses of the International Centre for Dispute Resolution and of the compensation and expenses of the arbitration panel. The arbitrators' 20-page, single-spaced decision did not reference or resolve any of the claims plaintiffs asserted in their complaint against Balda Investments USA that had been compelled to arbitration.
Plaintiffs petitioned the trial court to confirm the arbitration award, using Judicial Council form ADR-106, in which plaintiffs also sought an award of interest, and "costs of suit" for filing that petition in the amount of $60. In a minute order dated July 21, 2016, the trial court approved the petition to confirm the award, and stated that "[p]er discussion at hearing, and agreement by counsel, plaintiff[s] will be paid from the bond. The court will order exoneration of the bond upon payment of the award. While [Balda Investments USA] is correct that the $60 motion fee would not have been incurred if the parties had agreed to stipulate to confirmation of the award (although a $20 fee would be charged for a stipulation and order), [Balda Investments USA]'s request to have the award paid from the bond arguably necessitated this motion." (Italics added.)
In its minute order, the trial court also lifted the stay on the judicial proceedings, ordered defendants in the judicial proceeding that had been served to respond to the complaint within 30 days from the date of the minute order, set a case management conference in three months, and granted Balda Investments USA's request to stay discovery pending that case management conference.
On August 12, 2016, the court signed a formal order confirming the arbitration award which stated: "Petitioners shall receive $400,000 in damages, $179,896 in administrative fees and expenses, costs of $60, and interest of $158.88 per day . . . from May 11, 2016 until the date of payment, paid from SureTec Insurance Company's . . . bond no. 3356777 filed with the Court by [Balda Investments USA]." The court's order further stated, "Upon SureTec's claim payment, the Bond is exonerated and SureTec is released from any and all liability thereunder" and "SureTec will release the remaining collateral to [Balda Investments USA] pursuant to the Collateral Receipt and Security Agreement entered into between [Balda Investments USA] and SureTec." The order also stated that "[w]ithin 10 days of the date of payment by SureTec . . . , Plaintiffs will file with the Court a request for voluntary dismissal without prejudice of all claims against [Balda Investments USA] in this case."
In accordance with the trial court's order directing defendants that had been served to respond to the complaint, on August 22, 2016, four months after the arbitration award was made and served, defendants Balda Netherlands B.V., Balda Precision, Inc., Balda C. Brewer, Inc., Oliver Oechsle, and Vincent Muir filed a demurrer to the complaint. That same day, defendant Clere AG filed a motion to quash service of summons.
The day after the demurrer and the motion to quash were filed, plaintiffs filed a request that the entire action be dismissed without prejudice. The clerk entered dismissal that day as requested.
In December 2015, pursuant to plaintiffs' request, the court clerk had entered dismissal of plaintiffs' fifth cause of action without prejudice against Balda Investments USA, for financial elder abuse.
IV.
THE BALDA DEFENDANTS FILE A MEMORANDUM OF COSTS; PLAINTIFFS FILE A MOTION
TO STRIKE OR TAX COSTS; THE TRIAL COURT DENIES PLAINTIFFS' MOTION AND
AWARDS COSTS TO THE BALDA DEFENDANTS; PLAINTIFFS APPEAL.
In September 2016, the Balda defendants collectively filed a memorandum of costs seeking to recover $1,343.66 in filing and motion fees they had incurred in the trial court and $50,000 for the cost of the surety bond premiums, for a total costs award of $51,343.66. Plaintiffs filed a motion to strike the memorandum of costs, or in the alternative, to tax such costs for two reasons. First, with regard to the requested $1,343.66 in filing and motion fees, plaintiffs argued: "Plaintiffs were the Prevailing Party entitled to costs in this action. In any event, $868.96 of the claimed costs under this category were incurred only by defendant Balda Investments USA, LLC ("Balda USA"), which was already ruled to not be a prevailing party by virtue of this Court's August 12, 2016 Order Confirming Arbitration Award and Exonerating Bond, which awarded $60 in costs to Plaintiffs. The Court should strike these costs or tax them by at least $868.96."
Plaintiffs' second challenge to the memorandum of costs was with regard to the $50,000 surety bond premiums: "These premiums were paid by Balda USA, which was already ruled to not be a prevailing party by virtue of this Court's August 12, 2016 Order Confirming Arbitration Award and Exonerating Bond, which awarded $60 to Plaintiffs."
Plaintiffs also argued in their motion: "As further grounds for striking or taxing the claimed costs for Surety Bond Premiums, California Code of Civil Procedure Section 1033.5(a)(6) only allows such costs for 'necessary surety bonds.' . . . The surety bond acquired by Balda USA was in no way necessary, as Balda USA voluntarily offered a surety bond as a means to avoid injunctive relief sought by Plaintiffs." (Boldface omitted.) Plaintiffs do not make this argument in their appellate briefs; we therefore do not consider it further.
The trial court denied plaintiffs' motion to strike or tax costs. In the November 3, 2016 minute order, the court stated: "Plaintiffs filed a Request for Dismissal of the entire action, qualifying all defendants as prevailing parties under CCP §1032(a)(4)." The trial court signed an order awarding the Balda defendants $51,343.66 in costs. Plaintiffs filed a notice of appeal from the court's order denying the motion to strike or tax costs.
Because we decide this appeal based on the mandatory costs award provisions of section 1032, subdivisions (a)(4) and (b), we do not need to address whether costs might be awarded on other grounds.
The only reasonable construction of the memorandum of costs is that it was filed on behalf of Balda Investments USA along with the other Balda defendants for the following reasons: (1) the parties, including plaintiffs in their motion to strike or tax costs, routinely referred to Balda Investments USA as one of the Balda defendants or parties in the litigation; (2) the memorandum of costs sought an award of costs that included the $50,000 surety premiums and $868.96 for filing and motion fees which plaintiffs conceded in their motion to strike or tax costs had been incurred by Balda Investments USA; and (3) plaintiffs did not argue in the trial court that Balda Investments USA was not one of the "Balda defendants" who filed the memorandum of costs, but instead challenged the request for costs incurred by Balda Investments USA on the ground plaintiffs were the prevailing parties as to those specific costs. We acknowledge that the signed order does not list Balda Investments USA as one of the "Balda Defendants." But on this record, in light of plaintiffs' arguments in the trial court and on appeal, and given that nothing in the record suggests that Balda Investments USA was left out intentionally, this point is not dispositive.
In the respondents' brief, the Balda defendants state: "The Brewers [plaintiffs] assert, and the Balda Defendants agree, that the [Proposed] Order Awarding Costs to Balda Defendants was superfluous because the Superior Court's November 3, 2016 Minute Order was already enforceable and the proper appealable order." We review the court's denial of plaintiffs' motion to strike or tax costs and order awarding costs to the Balda defendants. (See Krikorian Premiere Theaters, LLC v. Westminster Central, LLC (2011) 193 Cal.App.4th 1075, 1084-1085 [an order denying a motion to tax costs effectively directs the moving party to pay costs to the prevailing party and thus is an appealable order].)
DISCUSSION
I.
GENERAL LEGAL PRINCIPLES AND STANDARD OF REVIEW
"'The right to recover any of the costs of a civil action "is determined entirely by statute."' [Citation.] '"[I]n the absence of an authorizing statute, no costs can be recovered by either party."' [Citations.] 'Section 1032 governs the award of costs of trial court litigation.' [Citation.]" (Charton v. Harkey (2016) 247 Cal.App.4th 730, 737.)
Section 1032, subdivision (b) provides, "a prevailing party is entitled as a matter of right to recover costs in any action or proceeding." Actions and special proceedings are the two classes of judicial remedies. (Villinger, supra, 31 Cal.App.4th at p. 327.) The term "action" is defined in section 22 as "an ordinary proceeding in a court of justice by which one party prosecutes another for the declaration, enforcement, or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense." Section 23 provides: "Every other remedy is a special proceeding."
Contractual arbitration proceedings constitute special proceedings within the meaning of the code. (See § 1 [rules governing contractual arbitration at § 1280 et seq. fall under part 3 of the Code of Civil Procedure entitled "Of Special Proceedings of a Civil Nature"]; Hyundai Securities Co., Ltd. v. Lee (2013) 215 Cal.App.4th 682, 690 ["the trial court treated the matter as if it were a certain special proceeding, such as petitions to compel, confirm, or vacate domestic or foreign arbitration awards"]; Villinger, supra, 31 Cal.App.4th at p. 327 [noting a hearing on a petition to confirm an arbitration award is properly classified as a special proceeding].)
Section 1032, subdivision (a)(4) defines "prevailing party" to "include[] 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 did not recover any relief against that defendant." (Italics added.)
"'[T]he trial court has no discretion to deny prevailing party status to a litigant who falls within one of the four statutory categories in [section 1032, subdivision (a)]. "As rewritten [in 1986], section 1032 now declares that costs are available as 'a matter of right' when the prevailing party is within one of the four categories designated by statute."'" (Charton v. Harkey, supra, 247 Cal.App.4th at p. 738.) "Whether a party falls within one of the four categories authorizing the recovery of costs as a matter of right is a question of law we review de novo." (Id. at p. 739.)
II.
THE TRIAL COURT DID NOT ERR BY FINDING THE BALDA DEFENDANTS TO BE THE
PREVAILING PARTIES IN THE JUDICIAL ACTION AND AWARDING THEM COSTS.
Here, plaintiffs did not recover any relief against any defendant on any of the claims asserted in their complaint in the judicial action. Claims asserted by plaintiffs in the complaint against Balda Investments USA were ordered to arbitration, but those claims were never referenced in the arbitration award much less adjudicated in the arbitration proceeding. After confirmation of the arbitration award, the court lifted the stay on the judicial action, and litigation of plaintiffs' complaint resumed. After five defendants filed a demurrer and another defendant filed a motion to quash in the judicial action, plaintiffs filed a request for dismissal of the entire action and the clerk entered dismissal accordingly. Under section 1032, subdivisions (a)(4) and (b), the trial court was required to find the Balda defendants to be the prevailing parties in the judicial action, and entitled as a matter of right to an award of their costs in that action.
Plaintiffs were the prevailing parties in the arbitration proceeding, and they were awarded their arbitration fees and costs by the arbitrators in the arbitration award. Plaintiffs were again the prevailing parties in filing their petition to confirm the arbitration award which commenced a brief special proceeding in which they were entitled to their costs (the $60 filing fee). That plaintiffs prevailed in the arbitration proceeding and in the special proceeding to confirm that arbitration award has no bearing on who the prevailing parties were in the judicial action, the scope of which is properly defined by plaintiffs' complaint.
In their appellate briefs and at oral argument, plaintiffs cited DeSaulles, supra, 62 Cal.4th 1140, in support of their argument that the Balda defendants were not the prevailing parties because plaintiffs achieved some litigation success in their lawsuit. In that case, the California Supreme Court held: "In light of section 1032's basic purpose of imposing costs on the losing party, and in light of the case law that the statute was intended to incorporate, we conclude that the definition of 'prevailing party' as 'a defendant in whose favor a dismissal is entered' was not intended to encompass defendants that entered into a monetary settlement in exchange for dismissal. The definition was intended to promote the equitable rule that unsuccessful plaintiffs could not evade the costs statute by dismissing their suit. That rule does not apply to plaintiffs that have achieved some litigation success through settlement of the case." (DeSaulles, supra, 62 Cal.4th at pp. 1152-1153, italics added.) The DeSaulles court held: "In sum, we hold that a dismissal pursuant to a monetary settlement is not a dismissal in the defendant's 'favor' as that term is used in section 1032(a)(4)." (Id. at p. 1158, italics added.) Here, plaintiffs did not enter into a settlement agreement with any of the Balda defendants—monetary or otherwise—with regard to the judicial action. Therefore, DeSaulles does not apply here.
Plaintiffs suggest that, notwithstanding the absence of a monetary settlement agreement, they were the prevailing parties in the judicial action because they achieved their litigation purposes. Plaintiffs point to Balda Investments USA's posting of a bond as a ready source of funds to satisfy any future arbitration award against it. Plaintiffs' suggestion is without legal support. Achieving one's litigation purposes is not included in section 1032, subdivision (a)(4)'s categories of parties who must be deemed prevailing parties entitled to costs as a matter of right. It is true section 1032, subdivision (a)(4) goes on to provide that "[i]f any party recovers other than monetary relief and in situations other than as specified, the 'prevailing party' shall be determined by the court . . . in its discretion." (Italics added.) But as discussed ante, the Balda defendants qualify as prevailing parties who must be awarded costs because plaintiffs dismissed the entire judicial action and, as also discussed ante, the DeSaulles monetary settlement agreement exception does not apply. Consequently, the court did not have discretion to do anything other than award the Balda defendants their costs in the judicial action.
In their opening brief, plaintiffs argue that they were prevailing parties on their claim to set aside a fraudulent transfer asserted in the judicial action. That claim, however, was never adjudicated. Plaintiffs appeared ex parte seeking a temporary restraining order and order to show cause regarding the issuance of a preliminary injunction that would enjoin "Balda AG, Balda USA, BCB and their employees, representatives, attorneys . . ." etc. from "selling, transferring, disbursing, distributing and/[or] otherwise disposing of Balda USA's assets consisting of all of the BCB stock and the BCB stock sale proceeds." The trial court did not issue the requested temporary restraining order and did not reach the merits of plaintiffs' application. Hence, plaintiffs were unsuccessful from either stopping the transfer of assets or proving that such a transfer would have been fraudulent before they dismissed the action. That Balda Investments USA posted a bond to stop plaintiffs' efforts to block a business transaction from going forward cannot be construed as providing plaintiffs with a net monetary recovery within the meaning of section 1032, subdivision (a)(4), or as entering into a settlement agreement with plaintiffs, much less a monetary settlement agreement, within the meaning of DeSaulles.
Plaintiffs also argue the trial court erred in awarding the Balda defendants costs because: (1) the memorandum of costs reflected costs "'claimed by an unspecified defendant or group of defendants'"; (2) the court had no information "who the 'Balda defendants' were, what costs on what causes of action each of the 'Balda defendants' was claiming costs, and whether each of the 'Balda defendants' had incurred each item of costs it was claiming"; (3) the court awarded the Balda defendants costs incurred only by Balda Investments USA; (4) the court concluded costs incurred by Balda Investments USA were necessary costs of the other Balda defendants; (5) costs were awarded to Balda defendants who appeared after the lawsuit had been dismissed; and (6) plaintiffs were the prevailing parties on their fraudulent conveyance cause of action.
None of those six arguments was raised as a challenge to the memorandum of costs or otherwise considered in the trial court. In accordance with long-standing rules of appellate review, plaintiffs are precluded from raising them for the first time on appeal. (Nordstrom Com. Cases (2010) 186 Cal.App.4th 576, 583.)
The first line of plaintiffs' memorandum of points and authorities in support of their motion to strike or tax costs, states: "Plaintiffs bring this motion to strike or tax costs claimed by an unspecified defendant or group of defendants, but which appear to have been incurred almost entirely by defendant Balda USA." Plaintiffs did not argue in the trial court that the memorandum of costs was deficient for a lack of specificity. Also, plaintiffs did not argue in the trial court and do not argue on appeal that the type of costs sought by the Balda defendants was impermissible. Indeed, section 1033.5, subdivision (a) provides that allowable costs include filing and motion fees and premiums on necessary surety bonds. (§ 1033.5, subd. (a)(1), (6).) --------
In any event, the Balda defendants' memorandum of costs lists each of the filing and motion fees sought by one or more of the Balda defendants who were all represented by the same counsel in this case. Plaintiffs never asked the court to apportion costs among the Balda defendants. Based on our review of the record, the memorandum of costs was clear regarding the nature of each cost item sought and the defendant that incurred the cost. It is evident from the record that Balda Investments USA was one of the Balda defendants seeking costs through filing the memorandum of costs in the trial court. Furthermore, the demurrer and motion to quash were filed before the clerk entered the dismissal of the lawsuit; none of the Balda defendants requested costs that postdated the dismissal of the lawsuit. Plaintiffs were not prejudiced by any lack of specificity in the court's order, and they have not argued otherwise in their appellate briefs.
DISPOSITION
The order is affirmed. Respondents shall recover costs on appeal.
FYBEL, ACTING P. J. WE CONCUR: IKOLA, J. THOMPSON, J.