DESAULLES v. COMMUNITY HOSPITAL OF THE MONTEREY PENINSULA

Appellant’s Answer Brief on the Merits

Cal.September 25, 2014

oe '* SUPREME COURT SEP 25 2014 IN THE SUPREME COURTOF THErank 4. McGuire Clerk STATE OF CALIFORNIA Deputy MAUREEN deSAULLES Plaintiffand Respondent VS. COMMUNITY HOSPITAL OF THE MONTEREY PENINSULA Defendant and Petitioner Monterey County Superior Court Civil Case No. M 85528 Honorable Lydia M.Villarreal, Judge Court of Appeal of the State of California, Sixth Appellate District Civil Case No. H 038 184 RESPONDENT’S ANSWERBRIEF HENRY J. JOSEFSBERG,ESQ. 110 West Ocean Boulevard Suite 611 Long Beach, California 90802 SBN 136772 (562) 436-9401 Attorney for Plaintiff & Respondent Maureen deSaulles CERTIFICATE OF INTERESTED PARTIES Apart from Plaintiff/Appellant/Cross-Respondent MAUREEN deSAULLES, there are no interested entities of parties to list in this Certificate per California Rules of Court, Rule 8.208 and 8.490(I). Dated: September 22, 2014 TABLE OF CONTENTS Page No. CERTIFICATE OF INTERESTED PARTIES ................... 1 RESPONDENT’S ANSWERBRIEF ............0.....0-020000505 1 I. PARTIES TO THIS PETITION FOR REVIEW ............ 1 II. STANDARD OF REVIEW .......... 0.0... 0c eee 1 Tl. SUMMARY OF ARGUMENT eeeees 1 IV. VI. A. THE LINE OF AUTHORITY APPLICABLE TO THIS PETITION SUPPORTS AN AWARD OF COSTS TO deSAULLES ....... 0... 02eeeee 2 B. EVEN CHOMP’S RECITATION OF LEGISLATIVE HISTORY FAILS TO SUPPORT REJECTION OF SETTLEMENT PROCEEDS AS “NET MONETARY RECOVERY”... 0.0...eeeee 4 C. CHOMP’S OWN ANALYTIC METHOD SHOULD HAVE LED IT TO A CONCLUSION ALLOWING deSAULLES HER COSTS .. 0.0...eeeens 5 D. PREVAILING PARTIES UNDER SECTION 1032 .... 6 NATURE OF THIS ACTION AND RELIEF SOUGHT BY APPELLANT IN THE SUPERIOR COURT ............... 8 RELEVANT BACKGROUND ............... 0.0 .200055 8 A. THE PLEADINGS........... 0.0... 00 eee eee 8 B. SETTLEMENT ......... 0.0.0... e ee eee eee 9 C. APPEAL OF THE MERITS ..................... 10 D. COST MOTIONS........ 0.0.00... eee eee eee 10 E. APPEAL OF THE COST MOTION ............... 10 UNDER THE “PREVAILING PARTY” ANALYSIS, ONLY deSAULLESIS ENTITLED TO RECOVERY OF COSTS .. 11 A. USE OF CASE AUTHORITY INVOLVING ATTORNEY FEES MAY BE APPROPRIATEIN THIS PETITION 12 B. THEPRIORCOST STATUTE SUPPORTED PREVAILING E. PARTY STATUS TO SETTLING PLAINTIFFS ..... 13 AS PREVAILING PARTY STATUS DID NOT CHANGE IN THE 1986 REVISIONS TO SECTION 1032, SETTLING PLAINTIFFS REMAIN PREVAILING PARTIES .... 14 CHINN ERRED IN CONCLUDING THAT THE LEGISLATIVE HISTORY OF SECTION 1032 HAD ANYTHINGTO DO WITH SETTLEMENT PROCEEDS eneeee ene ee eee eee tenes 16 CHINN’S ANALYSIS VIOLATES THE PURPOSES OF SETTLEMENT AND OF COST RECOVERY ...... 20 VII. EVEN CHOMP’S ANALYSIS OF CHINN DEMONSTRATES THAT, AS A MATTER OF LAW,THE SETTLEMENT PROCEEDS ARE PART OF THE “NET MONETARY RECOVERY” SUPPORTING deSAULLES AS THE “PREVAILING PARTY” .... 0.0.00... eee ee eee 23 A. B. E. CHOMP’S “PLAIN MEANING” ANALYSIS DOES NOT ASSISTIT 2... eeeceeee 23 THE CASE LAW THAT CHOMP URGES IS “CONSISTENT” WITH CHINN DOES NOT INVOLVE MONETARY PAYMENT TO PLAINTIFFS ........ 26 “STREAMLINING” THE RULES IS AN INSUFFICIENT BASIS TO CHANGE THE LAW TO FAVOR SETTLING DEFENDANTS WITH A WINDFALL ............. 29 “GOOD FAITH SETTLEMENT” CASES SUCH AS GOODMAN _V._ LOZANQ DEMONSTRATE THAT SETTLEMENTAMOUNTSARETOBE CONSIDEREDIN DETERMINATIONOF“PREVAILING PARTY” STATUS IN SINGLE PLAINTIFF VS. SINGLE DEFENDANT CASES 2. oieeeeeee eee ee 32 1. CHOMPErrs in its Overly Technical Reading of the Meaning of the Word “Recovery” ............ 33 2. CHOMP Errs in its Reliance on Out-of-state Cases37 CHOMP ERRSIN DISTINGUISHING SECTION 998 CASES 2...eeetee eee 40 VIE. CONCLUSION .......0 0.00 c cece cece eeceeeeeeeees 42 CERTIFICATE OF LENGTH- Rule 8.520(c)(1) ....... 0.0000 eee 43 il TABLE OF AUTHORITIES Page[s] California Supreme Court Boekenv. Philip Morris USA,Inc., 48 Cal. 4" 788 (2010) 0... eeeec cee eee eee 35 Chavez v. City of Los Angeles, A7 Cal. 4" 970 (2010) 2.0... cee eee 12,13,28,41 Commission on Peace Officer Standards & Training v. Superior Court, A2 Cal. 4° 278 (2007) 2.0... cc cece eee eee ee 17,27 Consumers Lobby Against Monopolies v. Public Utilities Commission, 25 Cal. 3891 (1979)20. 26 Folsom v. County Assn. of Governments, 32 Cal. 3™ 668 (1982) .........beeen ees 13,23,25,38,40,41 Gantt v. Sentry Insurance, 1 Cal. 4" 1083 (1992) 2...occeee eens 26 Goodmanv. Lozano, 47 Cal. 4" 1327 (2010) ........... 1,7,15,26,29,30,32,33,35-37 Graham v. DaimlerChrysler Corp., 34 Cal. 4" 553 (2004) 20...eeeeee eee 2,7,26 International Industries, Inc. v. Olen 21 Cal. 3218 (1978) 2...cece eee 19 Levy v. Superior Court, 10 Cal. 4° 578 (1995) 2... ccc cece ccc eee teens 21 Rapp v. Spring Valley Gold Co., 74 Cal. 532, 16 P. 325 (1888) 2...eee 2,14,38 Santisas v. Goodin, 17 Cal. 4" 599 (1998) oo...eee eee 2,7,27 Schrader v. Neville, 34 Cal. 27112 (1949) Loeeee eee 14 Scott Co. v. Blount, Inc., 20 Cal. 4° 1103 (1999) oooeeeeee 20 Smith v. Superior Court, 39 Cal. 4" 77 (2006) 2.0... ccc cee eens 20 ili California Court of Appeal Acosta v. SI Corp., 129 Cal.App. 4" 1370 (2005) 2.0... ccc cece ees 15 Alioto Fish Co. v. Alioto, 27 Cal.App. 4" 1669 (1994) 1... 0.ceeeee 4] Baker v. Mulholland Security and Patrol, Inc., 204 Cal.App. 4° 776 (2012) 0...eceee eee 1 Balfour, Guthrie & Co. v. Gourmet Farms, 108 Cal.App. 3181 (1980) 2.0... 2cce eee 14 Bates v. Presbyterian Intercommunity Hospital, Inc., 204 Cal.App. 4" 210 (2012) 2... cece ee eee 21 Cano v. Glover, 143 Cal.App. 4° 326 (2006) .... 0... cece eee 27 City of Industry v. Gordon, 29 Cal.App. 3% 90 (1972) 2.0... ccc cece cee eee ees 18,19 City of Long Beach v. Stevedoring Services of America, 157 Cal.App. 4" 672 (2007) 1.2... ccc cece eee 24,25 Chinn v. KMRProperty Management, 166 Cal.App. 4" 175 (2008) ... 3,4,7,12,15-18,20-23;26,28,40,42 Crib Retaining Walls, Inc. v. NBS/Lowry,Inc., 47 Cal.App. 4" 886 (1996) 2.0... ccc eee eee 27 Engle v. Copenbarger & Copenbarger, LLP, 157 Cal.App. 4" 165 (2007) ............ 2,6,13,21,23,38,40,41 Fisherv. Eckert, 94 Cal.App. 2" 2d 890 (1950) .. 0... eee ee eee 19 Great Western Bank v. Converse Consultants, Inc., 58 Cal.App. 4" 609 (1997) 2.0... ccc ccc cece eee eee 27 In re Tobacco CasesI, 193 Cal.App. 4° 1591 (2011) 2...eeeeee 3 Kaufman v. Diskeeper Corp., __ Cal.App. 4" _, B248151, 2014 Cal. App. LEXIS 761 (August 21,2014) 2...ene 3 Khavarian Enterprises, Inc. v. Commline, Inc., 216 Cal.App. 4" 310 (2013) 2.0...eee eee 4,6 IV Lampley v. Alvares, 50 Cal. App. 37 124 (1975) 2... cc cece eens 17,28 Lanyi v. Goldblum, 177 Cal.App. 3 181 (1986) 2.0.0... ee cee ee 3,14,40 Linthicum v. Butterfield, 175 Cal.App. 4" 259 (2009) 2.0...eee 4] Lockton v. O’Rourke, 184 Cal.App. 41051 (2010) 2...ceeeee 4 Martinez v. Los Angeles County Metropolitan Transportation Authority, 195 Cal.App. 4" 1038 (2011) 20.2... cc eee eee 6,12,38,41 Michell v. Olick, 49 Cal.App. 4" 1194 (1996) ............ 5,7,12,15,16,27,28,31 Mon Chong Loong Trading Corp. v. Superior Court, 218 Cal.App. 4" 87 (2013) 2.0... cece eee eee 12,27,36 On-Line Power, Inc. v. Mazur, 149 Cal. App.4"" 1079 (2007) 2.2.0.2... cee eee 3,6,23,35,40 Purdy v. Johnson, 100 Cal.App. 416 (1929)... 0...Lee 14 Ritzenthaler v Fireside Thrift Co., 93 Cal.App. 4" 986 (2001) .... 2...eee eee 3,40 Rappenecker v Sea-LandServ., Inc., 93 Cal.App. 3256 (1979) «0... eee eee 3,13,14,25,38,40 Sabav.Crater, 62 Cal.App. 4° 150 (1998) 2.0... eecee eee 40 Sacramento County Employees’ Retirement System v. Superior Court, 195 Cal.App. 4° 440 (2011) 2.0... eee eee een 3 Silverado Modjeska Recreation & Park Dist. v. County of Orange, 197 Cal-App. 4" 282 (2011) 2.0... cece cece eee 3 Slater v. Superior Court, 45 Cal.App. 2" 757 (1941) 2... ccc cece eee 14 Valentino v. Elliott Sav-On Gas,Inc., 201 Cal.App. 3 692 (1988) ..............00004 5,7,13,27,28 Weddington Productions,Inc. v. Flick, 60 Cal.App. 4" 793 (1998) 2.0... ccc cece eee eee 4] Windham at Carmel Mountain Ranch Assn.v. Superior Court, 109 Cal.App. 4" 1162 (2003) 2.0.2... eee eee eee 22 Wohlgemuthv. Caterpillar Inc., 207 Cal.App. 4" 1252 (2012) .. 0.2.00... eee 2,3,8,13,23,35 Federal and Out-of-State Cases Allison v. Board of County Comm’rs, 241 Kan. 266, 737 P.2d 6 (1987) 1.2... eee eee 39 Baldain v. Am. Home Mortg. Servicing, Inc., 2010 U.S. Dist. LEXIS 82876 (E.D. Cal. 2010) ............. 3 Bob Jones University v. United States, 461 U.S. 574, 76 L.Ed. 2" 157, 103 S.Ct. 2017 (1983) ...... 28 Dunn v. GMAC Mortg., LLC, 2011 U.S. Dist. LEXIS 39634 (E.D. Cal. 2011) ............. 3 Gallagher v. Manatee, 927 So. 24 914 (Fla.App. 2006) ...... 00... cece ee eens 39 Gebelein v. Blumfield, 231 IM.App. 371011 (1992) 2... cece eee 37,38 Holtz v. Waggoner, 377 Ul.App. 3 598 (2007) 2.2... 2c cee cee ene 38 Johnson v. G.D.F., Inc. D/b/a Domino’s Pizza, 2014 U.S. Dist. LEXIS 14446 (N.D.Ill. February 5, 2014) .. 39 California Statutes and Court Rules Cal.Civ. Code § 1643 2.0...cette een teen ees 4] Cal.Civ. Code § 1717 2...ctncent eeae 14 Cal.Civ. Code § 3541 20...ceenent eens 41 Cal.Civ.Proc. Code § 664.6. 2.0... 0.cece eens 9,21,40,41 Cal.Civ.Proc. Code § 877 6...ceceenee 27,32,33,35 Cal.Civ.Proc. Code § 998 2.0...eeeee 13,14,20,23,27,40,41 Cal.Civ.Proc. Code § 1032. ....... 5,6,12,13,14,16,17,20,24,25,27,30,31,41,42 vi Cal.Civ.Proc. Code § 1032(a)(4) ..... 0. ccc cee cee cence eines 1,15,17,23,24,37 Cal.Civ.Proc. Code § 1032(a&b) .. 0...cece eee 11,12 Cal.Civ.Proc. Code § 1032(b) 2... 0...eceee nee 15 Cal.Civ.Proc. Code § 1032(d) ... 0... ccc cceet eee 13 Cal.Civ.Proc. Code § 1033.5 2.0... cceee 12,41 Cal.Civ.Proc. Code § 1034. 0.0... 0...cnetene 11 Cal.R. of Court 8.208 2.0...eeeenee l Cal.R. of Court 8.4904) 2.0...eeeeee e eens 1 Cal.R. of Court 8.520(C)(1) . 0...eeeee teens 43 Other California Authority Assem. Com. on Judiciary, Rep. on Sen. Bill No. 654 (1985-1986 Reg. Sess.) as amended Mar. 31, 1986, p. 1 .. 1... eeec cee eee 30 Rep. on Sen. Bill No. 654 2.0...ceeees 15,29,30 Senate Bill No. 654 (1985-1986 Reg. Sess... 0.2... 0.ee ees 415,18 Sen. Rules Com., Off. of Sen. Floor Analyses, Rep. on Sen. Bill No. 654 (1985- 1986 Reg. Sess.) as amended July 8, 1986, p. 3 (Report on Senate Bill No. L)29 Out-of-State California Statutes Fla. Stat. § 760.11 0... cece ccc ce cece c eee eeeeeeeeeetseevettieneeees 39 Fla. Stat. § 768.28(5) ..- cece cc ccccceeeecueceteeueeeteeeeerereneees 39 Vii RESPONDENT’S ANSWER BRIEF I. PARTIES TO THIS PETITION FOR REVIEW Plaintiff-Respondent MAUREEN deSAULLES. Defendant-Petitioner COMMUNITY HOSPITAL OF THE MONTEREY PENINSULA (“CHOMP”). Il, STANDARD OF REVIEW deSAULLESagrees with CHOMPthatthetrial court’s construction ofthe law whetherto allow costs is reviewed de novoin this Court. Goodman v. Lozano, 47 Cal. 4" 1327, 1332 (2010); Baker v. Mulholland Security and Patrol, Inc., 204 Cal.App. 4" 776, 782 (2012). TT. SUMMARY OF ARGUMENT Wherethe sole defendant paid moneyto the sole plaintiff in settlement of at least one cause ofaction, made no agreementfor allocation of costs, and even wherethe plaintiff failed to achieve recovery on the remaining causes of action, plaintiff's right to costs is identical to cases wherethe plaintiff achieved a monetary verdict on somebutnot all causesofaction: the plaintiff in each case is the party with a “net monetary recovery”entitled to cost recovery under Civil Procedure Code Section 1032(a)(4). 1 Respondent’s Answer Brief A. THE LINE OF AUTHORITY APPLICABLE TO THIS PETITION SUPPORTS AN AWARD OF COSTS TO deSAULLES Since 1888, this Court has allowed costs andfeesto a settling plaintiff as the prevailing party where the settlement makes no mentionofcosts orfees. Rappv. Spring Valley Gold Co., 74 Cal. 532, 533; 16 P. 325 (1888) (attorney fee “was properly allowed for the same reason that costs were allowed,viz., that it was a necessary incident of the judgmentstipulated for, and was not expressly, or by necessary implication, excluded by the stipulation.”). One hundred ten years later, this Court adhered to the principle that “it seems inaccurate to characterize the defendant as the ‘prevailing party’ if the plaintiff dismissed the action only after obtaining, by meansofsettlement or otherwise,all or most ofthe requestedrelief ....” Santisas v. Goodin, 17 Cal. 4" 599, 621 (1998) (dictum). See also Graham v. DaimlerChrysler Corp., 34 Cal. 4" 553, 570 (2004) (“[A] court maybaseits attorney fees decision on a pragmatic definition of the extent to which each party has realized its litigation objectives, whether by judgment, settlement, or otherwise.’ (quoting Santisas at 622). In an almost unbroken line of cases, the Court of Appeal has held — with one exception — that, absent allocation of costs or fees in settlement, the plaintiffreceiving settlement proceedsis generally entitled to recovery ofcosts and, if available, fees. E.g., Wohlgemuth v. Caterpillar Inc., 207 Cal.App. 4" 1252, 1263-64 (2012); Engle v. Copenbarger & Copenbarger, LLP, 157 Cal.App. 4° 165, 168-69 (2007); On-Line Power, Inc. v. Mazur, 149 Cal. 2 Respondent’s Answer Brief App.4* 1079 (2007); Ritzenthaler v Fireside Thrift Co., 93 Cal.App. 4" 986 (2001); Lanyi_v. Goldblum, 177 Cal.App. 3 181, 185-87 (1986); Rappenecker v Sea-Land Serv., Inc., 93 Cal.App. 3256 (1979). The exception, of course, is Chinn v. KMR Property Management, 166 Cal.App. 4" 175 (2008), the sole case holding the opposite. No published decision follows Chinn’s unique notion that settlement proceeds must be disregarded in determining “prevailing party” status (including the decision in this case, which rejected Chinn). For example, Wohlgemuth v. Caterpillar Inc., 207 Cal.App. 4" 1252 (2012), refused to follow Chinn in a fee motion. The othercitations to Chinn either have nothing to do with this issue or distinguishit. See Dunn v. GMAC Mortg., LLC, 2011 USS. Dist. LEXIS 39634 (E.D. Cal. 2011) (quoting Chinn for a proposition ofcontract construction); Baldain v. Am. Home Mortg. Servicing, Inc., 2010 USS. Dist. LEXIS 82876 (E.D. Cal. 2010) (distinguishing Chinn in a “private fee shifting agreement[].”); Kaufman v. Diskeeper Corp., _Cal.App.4"_, B248151, 2014 Cal. App. LEXIS 761 (August 21, 2014) (Chinn supports the proposition that contractual attorney fees are costs, not damages); Silverado Modjeska Recreation & Park Dist. v. County of Orange, 197 Cal.App. 4" 282, 312 (2011) (citing Chinn for whethera party must seek of attorney fees as costs in a post-judgment motion); Sacramento County Employees’ Retirement System v. Superior Court, 195 Cal.App. 4™ 440, 450 (2011) (citing Chinn for a procedural point); In re Tobacco Cases I, 193 Cal.App. 4" 1591, 1600 (2011) (citing Chinn for the proposition that a “consentjudgment 3 Respondent’s Answer Brief ‘is regarded as a contract betweenthe parties’”); Lockton v. O’Rourke, 184 Cal.App. 4" 1051, 1076 (2010) (citing Chinn for the breadth ofa contractual fee-shifting clause). Recently, the Court ofAppeal distinguished Chinn where the parties agreed that the plaintiff could file a memorandum of costs and apply for attorney fees. Khavarian Enterprises, Inc. v. Commline, Inc., 216 Cal.App. 4” 310 (2013). B. EVEN CHOMP’S RECITATION OF LEGISLATIVE HISTORY FAILS TO SUPPORT REJECTION OF SETTLEMENT PROCEEDS AS “NET MONETARY RECOVERY” Not only is the weight of authority to the contrary ofChinn’s disregard of settlement proceeds, but the analysis in Chinn wrongly distinguishesthe net monetary recovery in a settlement from that of a verdict. In fact, Chinn is internally inconsistent as to that point. Compare id. at 188 (“It is clear from the statutory language that whenthereis a party with a ‘net monetary recovery’ (one ofthe four categories ofprevailing party), that party is entitled to costs as a matter ofright; the trial court has nodiscretion to order each party to bearhis or her owncosts.’”), and id. at 189 (“Thelegislative history of Senate Bill No. 654 (1985-1986 Reg. Sess.) does not indicate any change in the law to consider settlement proceedsorprovidecosts to a plaintiff after a dismissal.”’), with id. at 189-90 (jumping from Legislative history unrelated to settlementto conclude that settlement proceeds are not considered to be “net monetary recovery” within the meaning ofthe statutory right to costs). 4 Respondent’s Answer Brief Equating a settlement dismissal with all other dismissals, CHOMP errs, therefore, in urging that a dismissal purchasedin a settlementis a factor in determining whichis the prevailing party under Section 1032. Rather, the practical and long-standingrule is that a plaintiff who accepts a monetary settlement in exchange for dismissal of his or her lawsuit is the prevailing party, entitled to recovery of costs. C. CHOMP’SOWNANALYTICMETHOD SHOULD HAVE LED IT TO A CONCLUSION ALLOWING deSAULLES HER COSTS CHOMPurgesthat the mere existence of a dismissal that is part of a settlement agreementwill alwayslead to a finding ofthe dismissed defendant as a prevailing party under Civil Procedure Code Section 1032. Had CHOMP considered, however, an equivalency between a monetary verdictfor a plaintiff and a settlement, the falsity of its conclusion would have been obvious under the “net monetary recovery” prong of Section 1032: the plaintiff is the prevailing party. Whena case concludes with a verdict, the parties can be said to have had only persuasive control over that outcome. The law imposesrights to costs and fees in favor ofthe successfulplaintiff flowing directly out ofthat verdict. See Michell v. Olick, 49 Cal.App. 4" 1194, 1198 (1996); Valentino v. Elliott Sav-On Gas, Inc., 201 Cal.App. 3692, 702 (1988). No one couldsay that the costs and fees arising after such a verdictis a trap for the unwary. Ratherit is the expected outcomeofa plaintiff's monetary verdict. 5 Respondent’s Answer Brief But whenthe parties agree on a settlement, they have complete control over the outcome, including the right to costs and fees. Compare Engle Copenbarger & Copenbarger, LLP, 157 Cal.App. 4" 165, 168-69 (2007) (absentallocation of costs,settling plaintiff entitled to costs), with Khavarian Enterprises, Inc. v. Commline, Inc., 216 Cal.App. 4" 310 (2013) (parties’ allocation of costs and fees), and Martinez v. Los Angeles County Metropolitan Transportation Authority, 195 Cal.App. 4" 1038, 1041 (2011) (“Unless the offer expressly states otherwise, an offer of a monetary compromise under section 998 that excludes “costs” also excludes attorney fees.”’) (distinguishing Engle). If, as here, the parties make no provision for costs or fees, their settlement is exactly like a verdict: the law provides for costs and fees depending on the outcomeofthe settlement, regardless whether the settlement also requires a dismissal. See On-Line Power, Inc. v. Mazur, 149 Cal. App.4" 1079 (2007). In a verdict — however disappointing to a plaintiff who recovers less damages than anticipated -- costs may be recovered. Noprincipled reason exists to distinguish such a verdict from a settlement that yields a monetary recovery to a plaintiff even if part of that settlement is a dismissal. The formality of the dismissal is an inadequate counterbalanceto the reality that, in a monetary settlement such as here, as a pragmatic matter, a plaintiff such as deSAULLESis the prevailing party. D. PREVAILING PARTIES UNDER SECTION 1032 The appropriate definitions of “prevailing party” under Section 1032 6 Respondent’s AnswerBrief are based on this Court’s consistent analysis and the line of Court of Appeal cases other than Chinn: “[A] court may baseits attorney fees decision on a pragmatic definition of the extent to which each party has realized its litigation objectives, whether by judgment, settlement, or otherwise.” Graham, 34 Cal. 4" at 570 (quoting Santisas, 17 Cal. 4" at 622). Indeed,in interpreting a statute, “[o]urfirst step is to scrutinize the actual words ofthe statute, giving them a plain and commonsense meaning.‘If the words ofthe statute are clear, the court should not add to or alter them to accomplish a purposethat does not appearon the face ofthe statute or from its legislative history.’” Goodman, 47 Cal. 4" at 1332 (citations omitted). This analysis leads to these definitions in this matter: “Net monetary recovery” leads to “prevailing party” status when money is exchanged duringlitigation resulting in a net gain to a party. This definition effectuates “the extent to which each party hasrealizedits litigation objectives, whether by judgment, settlement, or otherwise.” Graham, 34 Cal. 4 at 570 (quoting Santisas, 17 Cal. 4" at 622.). While the amount of settlement may not reach the highest goals of the recovering party, see Michell, 49 Cal.App. 4"at 1198; Valentino, 201 Cal.-App. 3"at 702, recovery of costs is not affected by settlement payments that typically recognize litigation uncertainties. “Dismissal” leads to “prevailing party” status in exactly the same pragmatic analysis when a defendantis dismissed under circumstancesthat leave an opponent without a monetary recovery. For example, Chinn, 166 7 Respondent’s AnswerBrief Cal.App. 4" at 189 cited the Legislative History of the 1986 enactment of Section 1032 that recited several types of dismissals where the plaintiffs recovered nothing, and which were properly determined to result in “prevailing party” status to a defendant. See also Wohlgemuth, 207 Cal.App. 4" at 1262 (The “definition [of judgment] focuses on the substance of the matter, not its form.”) (citation omitted). IV. NATURE OF THIS ACTION AND RELIEF SOUGHT BY APPELLANT IN THE SUPERIOR COURT deSAULLESsoughtrelieffor disability- and medical condition-related accommodation, discrimination, breach ofemploymentcontract, and related torts. (1 Apx., 1-40.) After summary disposition ofher discrimination causes of action, the Parties entered into a settlement agreement (7 Apx., 98-100) in which CHOMPpaid deSAULLESthe amountof$23,500 in exchangefor a dismissal ofthe remaining contract-based causesofaction (id. at 98:12-16). The Parties each claimed “prevailing party”status for the purposes of recovery of costs (4 Apx., 49-69; 6 Apx., 82-86), movedto tax orstrike each others’ Cost Memoranda. (7 Apx, 87-115; 9 Apx., 119-21). The Superior Court struck deSAULLES’ Memorandum and awarded CHOMPits costs (19 Apx., 377-78; Rptr.Trans. 7:6-14). V. RELEVANT BACKGROUND A. THE PLEADINGS deSAULLES’pro se Complaint is in seven causesofaction for failure 8 Respondent’s AnswerBrief to accommodate disability and medical condition; retaliation; breach of contract and the covenant of good faith; infliction of emotional distress; punitive damages; and wrongful termination. (1 Apx., 1-40.) Counsel for deSAULLESsubstituted for her in this action. (1 Apx., 41.) CHOMP answered and set up several affirmative defenses. (3 Apx., 42-48.) The Superior Court summarily adjudicated some, but not all, of deSAULLES’ discrimination-based causes of action against her. (15 Apx., 264-73.) In pre-trial motions, the Superior Court dismissed the rest of the discrimination-based causes of action. (15 Apx., 275-76.) B. SETTLEMENT The Parties then settled the breach of contract-based causes ofaction. (15 Apx., 276:6-7; 7 Apx., 98:7-100:21.) The settlement required CHOMP to pay deSAULLESthe amount of $23,500, and, in exchange, deSAULLES would dismiss the contract-based causes of action with prejudice, with the Superior Court retaining jurisdiction under Civil Procedure Code Section 664.6. (7 Apx. 98:12-16.) In the event that d0SAULLESendedup recovering wage-loss damageson the discrimination-based causesofaction, the $23,500 would offset those damages.(Id. at 98:22-100:12.) Thejudgmentstatedthat “(1) Plaintiffrecover nothing from defendant; and (2) Defendant recoveragainst plaintiff costs and attorneys fees permitted by law.” (7 Apx. 103:9-10.) The Parties agreed to extend the time to movefor costs (id. at 104-05), and the Superior Court entered an Amended Judgment 9 Respondent’s AnswerBrief that read: “The Parties shall defer seeking any recovery of costs and fees on this Judgment comingfinal after the time for all appeals” (id. at 108:10-11). C. APPEAL OF THE MERITS deSAULLESappealed summary disposition of her discrimination- based causes of action. deSaulles v. Community Hospital, California Court of Appeal, Sixth Appellate District, Civil No. H 033 906. The Court of Appealaffirmed in an unpublished Opinion. (15 Apx., 277-356.) D. COST MOTIONS After the Court of Appeal issued its remittitur in the H 033 906 Appeal, each Party filed a Memorandum of Costs for trial-level costs, implicitly claiming “prevailing party” status for the purposes of recovery of costs. (4 Apx., 49-69; 6 Apx., 82-86.) Each Party movedto tax or strike each others’ Cost Memoranda (7 Apx., 87-115; 9 Apx., 119-21), and the Superior Court struck deSAULLES’ Memorandum and awarded CHOMPitscosts (19 Apx., 377-78; Rptr.Trans. 7:6-14). E. APPEAL OF THE COST MOTION The Court of Appeal reversed imposition of costs for CHOMP and remanded for a determination of costs in favor of d0SAULLES.deSaulles v. Community Hospital of the Monterey Peninsula, H 038 184 (May 2, 2014) at p. 27. CHOMPsuccessfully petitioned this Court for review. 10 Respondent’s AnswerBrief VI. UNDER THE “PREVAILING PARTY” ANALYSIS, ONLY deSAULLESIS ENTITLED TO RECOVERY OF COSTS In relevantpart, the controlling statute, Civil Procedure Code Section 1032(a&b) reads: (a) As used in this section, unless the context clearly requires otherwise: . . . [{] (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 anyrelief, 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 providedbystatute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding. Ll Respondent’s Answer Brief Cal.Civ.Proc. Code § 1032(aé&b). CHOMPdoesnot dispute that in a verdict, a plaintiff prevailing on some, but not all of her causes of action, is still a prevailing party for cost recovery. See Michell v. Olick, 49 Cal.App. 4" 1194, 1198 (1996). Rather,it asserts, based on (1) Chinn v. KMR Property Management, 166 Cal.App. 4" 175 (2008); (2) non-settlement dismissal cases such as Mon Chong Loong Trading Corp. v. Superior Court, 218 Cal.App. 4"" 87 (2013); and (3) an inappropriate reading of this Court’s decisions, that the existence of a dismissal as part of a settlement makes the settling defendant the statutory prevailing party under Civil Procedure Code Section 1032. This formulaic argument is repudiated by the purposes of Section 1032, the consistent holdings ofthis Court requiring a pragmatic determination ofprevailing party status, the Court of Appeal decisions making similar determinations, and the policies undergirding settlement. A. USE OF CASE AUTHORITY INVOLVING ATTORNEY FEES MAY BE APPROPRIATEIN THIS PETITION Manycasesinvolving attorney fees are directly analogous where costs are at issue. This is because attorney fees (under any statute) can be an element of costs under Section 1032 and 1033.5. See Chavez v. City of Los Angeles, 47 Cal. 4" 970 (2010) (analyzing whether attorney fees are recoverable under an analysis of costs under Sections 1032 and 1033.5); Martinez v. Los Angeles County Metropolitan Transportation Authority, 195 Cal.App. 4" 1038, 1041 (2011) (“[E]xclusion of costs also excludes attorney 12 Respondent’s AnswerBrief fees ... based on the rapport betweensections 998, 1032 and 1033.5.”); Engle v. Copenbarger & Copenbarger, LLP, 157 Cal.App. 4" 165, 168 (2007) (entitlementto costs and, if authorized, fees). Wohlgemuth v. CaterpillarInc.., 207 Cal.App. 4" 1252, 1263-64 (2012)(relying on both fee and cost cases). B. THE PRIOR COST STATUTE SUPPORTED PREVAILING PARTY STATUS TO SETTLING PLAINTIFFS A brief summary of the effect of the prior version of Section 1032 places into perspective the meaning of the current version. Underthe prior cost statute, “[t]he purposes of subsection 1032(d) are not served by denying costs to litigants who in good faith and with sound reasonsfile in superior court then suffer the surprise of an unexpectedly low jury verdict.” Valentino v. Elliott Sav-On Gas,Inc., 201 Cal.App. 3" 692, 702 (1988)(cited with approval in Chavez v. City ofLos Angeles, 47 Cal. 4" 970, 984 (2010).) By 1986 when Section 1032 wasrevised, the law was well-established that settlement proceeds were to be considered in determining whether costs wereto be recoveredbya plaintiff and the Courts routinely did so. Folsom v. County Assn. of Governments, 32 Cal. 3 668, 677-78 & n.15 (1982) (“[C]osts are allowed, absent the parties’ express agreementto the contrary, following entry of a consent decree.”) (favorably citing Rappenecker_v Sea-Land Serv., Inc., 93 Cal.App. 3256, 263-64 (1979)); Rapp v. Spring 13 Respondent’s Answer Brief Valley Gold Co., 74 Cal. 532, 533; 16 P. 325; (1888); Slater v. Superior Court, 45 Cal.App. 2™ 757 (1941); Purdy v. Johnson, 100 Cal.App. 416, 418 (1929).) See also Lanyiv. Goldblum, 177 Cal.App. 3181, 185-87 (1986) (re Cal.Civ. Code § 1717 and Cal.Civ.Proc. Code § 998). Although the cost statutes before 1986 did not refer to “prevailing party,” Schrader v. Neville, 34 Cal. 2" 112, 114 (1949) (“Unlike the statutes in many jurisdictions, our code section is not framed in the express language ofthe ‘prevailing party’ but it allows the recovery of costs uponthat basis by specifying as the condition for an award ofthem,“ajudgmentin his favor.”); the courts adverted to the standard of “prevailing party” even before 1986. E.g., Balfour, Guthrie & Co. v. Gourmet Farms, 108 Cal.App. 3181, 191 (1980); Rappeneckerat 263 (“Defendantcites us to no authority which states that in the absence of specific language contained in the contract which provides for costs in the event of suit, the prevailing party cannot recover costs.) (italics added). As demonstrated immediately below, the 1986 revisions to Section 1032 did not change the prior law on whether a party receiving monetary compensation in a settlementis entitled to costs or fees. C. AS PREVAILING PARTY STATUS DID NOT CHANGE INTHE 1986 REVISIONSTO SECTION1032, SETTLING PLAINTIFFS REMAIN PREVAILING PARTIES The Legislative History of Section 1032 emphasizes that “[t]he 14 Respondent’s AnswerBrief fundamental principle of awarding costs to the prevailing party remains the same, but whether those costs are awarded as a matter of right or as a matter of the court’s discretion now often depends on howthe prevailing party is determined.Ifa party fits one ofthe definitions of ‘prevailing’listed in C.C.P. 1032(a)(4)... that party is entitled as a matterofright to recover costs. (C.C.P. 1032(a)(4), 1032(b).) In other situations, the prevailing party is determined by the court and the award of costs is discretionary.” Acosta v. SI Corp., 129 Cal.App. 4" 1370, 1376 (2005) (citation omitted). “The relevant question on entitlement to costs is whether a party qualifies as a prevailing party under subdivision (a)(4). After the 1986 amendment to section 1032, ‘[t]he allowance of costs as a matter of right no longer depends on the character of the action involved but on howtheprevailing party is determined.”Id. (citing inter alia Michell, 49 Cal.App. 4" at 1197-98). The innovation in the 1986 revision to Section 1032 was to use the phrase “prevailing party.” As this Court has observed: “Thelegislative history reveals instead that at the time current section 1032 was reenacted, the “existing statutes d[id] not fully explain the conceptofthe ‘prevailing party,’ ‘and that a “comprehensive definition” was necessary to “furthereliminate confusion.” (Rep. on Sen. Bill No. 654, supra, at pp. 1, 3.)” Goodmanv. Lozano, 47 Cal. 4"" 1327, 1336 (2010). Even according to the primary case upon which CHOMPrelies, Chinn v. KMRProperty Management, 166 Cal.App. 4" 175 (2008),“The legislative history of Senate Bill No. 654 (1985-1986 Reg. Sess.) does not indicate any 15 Respondent’s AnswerBrief changein the law to considersettlement proceedsorprovide coststo a plaintiff after a dismissal.” Id. at 189. See also Michell, 49 Cal.App. 4" at 199 and n. 4 (1986 revisions to Section 1032 “do not drastically alter the definition of prevailing party’). Indeed, Chinn cites Michell — a case that did not involve a settlement — for the principle that ““‘[i]t is clear from thestatutory language that whenthereis a party with a ‘net monetary recovery’ (one ofthe four categories ofprevailing party), that party is entitled to costs as a matter of right; the trial court has no discretion to order each party to bear his or her owncosts. Chinn at 188 (quoting Michell at 1198). Under this long-established principle, deSAULLES is still the “prevailing party” entitled to recovery of costs. Accordingly, the general principle allowing cost recovery to the party with a “net monetary recovery”is not in dispute. The only issue in dispute is whether settlement proceeds are to be disregarded in determining whether a plaintiff has a “net monetary recovery” for purposes of cost recovery. Other than reliance on Chinn, and, unfortunately, misapplication of other authority, nothing in CHOMP’sBriefsupports the theory that settlement proceedsare to be disregarded. D. CHINN ERRED IN CONCLUDING THAT THE LEGISLATIVE HISTORY OF SECTION 1032 HAD ANYTHING TO DO WITH SETTLEMENT PROCEEDS After having observed (correctly), that the 1986 revisions to Section 16 Respondent’s AnswerBrief 1032 “does not indicate any changein the law to considersettlement proceeds or provide costs to a plaintiff after a dismissal” Chinn at 189, that court promptly cited an obscure part of the Legislative History to Section 1032 that dealt with dismissals unrelated to settlement to leap to the conclusion that settlement proceeds should be excluded from determining whetherthe party receiving those proceeds received a “net monetary recovery.” Chinn concludedthat an interpretation of “net monetary recovery”as including settlement proceeds would lead to the “absurd result” that “both plaintiff and defendants would be entitled to an award of costs as a matter of right.” Id. at 188. That result would be absurd, and only occurs when the “dismissal” prong of Section 1032(a)(4)is takenliterally and out of context. The Chinn result comes from its over-technical reliance on the word “dismissal” in Section 1032. As the only reason for the dismissal here was CHOMP’spayment ofmoney — a result sought by deSAULLES-— it is absurd to consider CHOMPto be a prevailing party. Section 1032 has not been interpreted in the manner advanced by Chinn in the other cases to have considered the issue. Chinn’s interpretation is wrong and should notcontrol this matter. See generally, Commission on Peace Officer Standards & Training v. Superior Court, 42 Cal. 4" 278, 290 (2007) (language ofstatute should not be given a literal meaning if doing so would result in absurd consequencesthe Legislature did not intend); Lampley v. Alvares, 50 Cal. App. 3 124, 128-29 (1975) (“Where a statute is susceptible of two constructions, one leading to mischief or absurdity, and the other consistent 17 Respondent’s AnswerBrief with justice and commonsense,the latter must be adopted.”’). Supporting aon sequitur analysis, Chinn quoted general and unrelated provisions in the Legislative History, see id. at 189, focusing on a written responseto a telephonecall to a Legislative consultant: Senate Bill No. 654 (1985-1986 Reg. Sess.) was introduced on behalf ofthe California Judges Association Civil Law and Procedure Committee. On January 20, 1984, Judge Richard H.Breiner, who wasthe chairmanofthe civil law and procedure committee, respondedin writing to a telephone call from Assembly Republican consultant Earl Cantos. Judge Breiner stated in pertinent part, “The proposed bill merely synthesizes and simplifies the myriad of existing statutes into language whichis clear, simple, and located in one place. You expressed concern that the proposal might allow an award of costs against a plaintiff not presently permitted under current law, when an action is dismissed. Under present[] law, costs are allowed to a defendant when plaintiff's action is dismissed. City Industry v. Gordon 29 Cal.App. 3 90 (1972) (whether it is a voluntary dismissal with 18 Respondent’s AnswerBrief prejudice), Fisher v. Eckert, 94 Cal.App. 2! 2d 890 (1950), or without prejudice International Industries, Inc. v. Olen 21 Cal. 3 218 (1978). The proposedbill provides for no different result, but rather simply provides in cases of dismissal, for costs to a ‘defendant on dismissal.’” The “expressed concern”in the telephonecall was “that the proposal might allow an awardofcosts against a plaintiffnot presently permitted under current law, when an action is dismissed.” As demonstrated above,at the time, settlements and stipulations for monetary recovery byplaintiffs led to recovery of costs when no mention was madeof the disposition of those costs. And none ofcases cited by Judge Breiner involved paymentto a plaintiff, whether by settlement, compromise, verdict, or any method. International Industries at 220-21 was a unilateral voluntary dismissal in the face of several defenses; City of Industry at 92-93 dismissed for failure to prosecute; and Fisher at 891 recited a dismissal without reasons. In such cases costs would be given (under the 1986 revision or underprior law) to a defendant in whose favora dismissal is entered because the plaintiff received nothing. Judge Breiner reassured the telephone caller that “The proposedbill provides for no different result, but rather simply provides in cases of dismissal, for costs to a ‘defendant on dismissal.’” Nothing in this History suggests that the participants in this discussion considered settlements, and Judge Breiner’s conclusion is consistent with the long-established practice of 19 Respondent’s AnswerBrief allowing settling plaintiffs recovery of costs (so long as they had a monetary recovery). Absent the context of a dismissal purchased by settlement proceeds, these comments shed no light on whether settlement proceeds are to be considered. E. CHINN’S ANALYSIS VIOLATES THE PURPOSES OF SETTLEMENT AND OF COST RECOVERY The purposesofthe relevantstatutes are to provide costs to a genuine prevailing party and to promote settlement. Refusing to follow Chinn will promote and harmonize the policies of Sections 1032, 998, and 664.6. See generally, Smith v. Superior Court, 39 Cal. 4" 77, 83 (2006) (“No statute—and by extension, no rule—is read in isolation, but is to be considered with reference to the entire scheme of whichit is a part.”). “Section 1032 is the fundamental authority for awarding costs in civil actions. It establishes the general rule that “[e]xcept as otherwise expressly providedbystatute, a prevailing party is entitled as a matter ofright to recover costs in any action or proceeding.” Scott Co. v. Blount, Inc., 20 Cal. 4" 1103, 1108 (1999)(citations omitted) (verdict). For purposes ofsection 1032, a party Oewith a net monetary recovery, like deSAULLES,is a “‘[p]revailing party.’” So the purpose of Section 1032 is to allow a party achievingits goals his or her costs ofsuit. The purpose ofSection 998, ofcourse, is to encourage settlement. Bates v. Presbyterian Intercommunity Hospital, Inc., 204 Cal.App. 4" 210, 219 20 Respondent’s AnswerBrief (2012). Section 664.6 is a mechanism forefficient enforcementofsettlement. See Levy v. Superior Court, 10 Cal. 4"" 578 (1995). The policy of promoting settlement is furthered by allowing deSAULLESand not CHOMPto recover costs. The line of authority ~ other than Chinn at the time of settlement — held that a settling plaintiffwas entitled to recovery ofcosts. Allowing CHOMPrecovery ofits costs would effectively eliminate the settlement proceeds and, had it been knownatthe timethat the single case disallowing consideration of settlement proceeds would havethat effect to the derogation of the consistent and contrary line of authority, deSAULLES would have been dis-incentivised to settle for the amount offered. Engle offers a sound reason to allow costs to settling plaintiffs: “the bright-line rule exists precisely to avoid disputes such as this one about whether there was manipulation or misunderstanding.” Id. at 169. A settling defendant can easily put a cost or fee waiver into the agreement. Id. at 170. Just as to costs, “[s]Jince the offer was silent on fees, it did not bara later fee motion.” See id. In fact, CHOMPinsisted that any settlement proceeds would offset wage-loss recovery ifdeSAULLESprevailed on other causesofaction. And, as CHOMPrejected any cost waivers, this is not a case of an unwary defendant. Nor is it any different than a plaintiff's verdict on less than all causes of action. Finally, Chinn relied on the wisp of a notion that failure to discuss 21 Respondent’s AnswerBrief settlement in the Legislative History meansthat settlement proceeds are not to be consideredin the definition of“net monetary recovery.” The Legislative History discusses dismissals, but not in the context of settlement and only in the context ofnot changing existing law. Not changing existing law requires allowingsettling plaintiffs their costs and in non-settlement contexts allowing dismissed defendants their costs. The purposes of the relevantstatutes is to promote settlement and provide prevailing parties their costs. No purposeis served to advert to the implications ofthe absence ofa reference to settlement in the Legislative History. See generally, Windham at Carmel Mountain Ranch Assn.v. Superior Court, 109 Cal.App. 4" 1162, 1173 (2003) (“Absent relevant legislative history, we consider the statute’s apparent purpose and public policy factors.”’). CHOMPerrs, therefore, in its uncritical reliance on the holding of Chinn.In particular, CHOMPfails to reconcile Chinn’s acknowledgments that the 1986 revision to Section 1032 was not meant to change the law as to settlement or ordinary dismissal cases, with that court’s leap to a conclusion to favor the technicality of a purchased dismissal over the pragmatic result that, in an ordinary settlement,the plaintiff is the party with the “net monetary recovery.” 22 Respondent’s Answer Brief VII. EVEN CHOMP’S ANALYSIS OF CHINN DEMONSTRATES THAT, AS A MATTER OF LAW, THE SETTLEMENT PROCEEDS ARE PART OF THE “NET MONETARY RECOVERY” SUPPORTING deSAULLES AS THE “PREVAILING PARTY” CHOMPrelies on Chinn for the proposition that exclusion of settlement proceedsfrom the determination of“prevailing party” is necessary to avoid the “absurd result” oftwo prevailing parties: a prevailing defendant who purchaseda dismissal and a plaintiff who had a monetary recovery in settlement. No such absurdity exists, and no reason exists to favor defendants by disregarding their settlement payments to plaintiffs. The existence of a formal “dismissal” in the settlement context does not elevate a settling defendantto the status of “prevailing party.” see Wohlgemuth v. Caterpillar Inc., 207 Cal.App. 4" 1252, 1263-64 (2012); Engle v. Copenbarger & Copenbarger, LLP, 157 Cal.App. 4" 165, 168-70 (2007) (“Where a section 998 offer is silent on costs and fees, the prevailing party is entitled to costs.. ..”) (citing, inter alia Folsom v. County Assn. of Governments, 32 Cal. 3" 668, 678 (1982); On-Line Power, Inc. v. Mazur, 149 Cal.App. 4" 1079 (2007). So settlement does not give rise to a situation with two potentially prevailing parties. A. CHOMP’S “PLAIN MEANING” ANALYSIS DOES NOT ASSIST IT CHOMPurgesthat exceptions should not be “engrafted”onto the plain meaning of Section 1032(a)(4). dASAULLESagrees. As sheis the party with 23 Respondent’s Answer Brief the “net monetary recovery,” the plain meaning of Section 1032 is that she is the “prevailing party.” But CHOMP’s“plain meaning” argumentrelies on ignoring the “net monetary recovery” prong of Section 1032(a)(4), and pointing only to the “dismissal”? prong as embodying the “plain meaning”of Section 1032(a)(4). Supporting this myopia, CHOMPcites City of Long Beach v. Stevedoring Services ofAmerica, 157 Cal.App. 4" 672, 679-80 (2007), for the proposition that “courts must be cautious about[{] ‘engrafting exceptions onto the clear language of Civil Procedure Code section 1032... .” (Brief at 11.) City Long Beach had nothing to do with settlement or monetary recovery, but, instead, considered whethera cross-complaint dismissed for mootness wasor wasnot in the cross-defendant’s favor, id. at 679-80, and concluded: There is no exception in the cost statute for dismissals of cross-complaints obtained on the groundthat the cross-complaint has become moot. Whenacross-complaintis dismissed as moot, the cross-defendant is one in whose favorthe cross- complaint was dismissed and is therefore a prevailing party under Code of Civil Procedure section 1032 entitled to costs as a matter of right. Id. at 680. 24 Respondent’s Answer Brief CHOMP omits the citation in the City of Long Beach case to Rappenecker v Sea-LandServ., Inc., 93 Cal.App. 3% 256, 263 (1979),for the quotation concerning judicial caution about engrafting “exceptions.” As seen above, Rappeneckeris amonga line ofCourt ofAppealcases holdingit proper to award settling plaintiffrecovery of costs or fees. Rappenecker’s refusal to engraft an exception onto Section 1032 resultedin its considering the analogy that “a consent judgmentis no different than any other judgment,” id., and concluded that, [b]y its failure to draft with precision its compromiseoffer, defendantcan not now be heardto claim thatits language precludes the award of costs.” Id. at 264. In so concluding, the Rappenecker court observed that “Defendant has filed to provide any persuasive showingoflegislative intent to exclude costs in compromise settlements.” See also Folsom, 32 Cal. 3" at 677-78 & n.15 (“[C]osts are allowed, absent the parties’ express agreement to the contrary, following entry of a consent decree.”) (favorably citing Rappenecker, 93 Cal.App. 3" at 263-64). Nowhere does CHOMP show any Legislative intent to overrule Rappenecker; or to change the law of settlement; or to show that a case involving a mootcross-complaint such as City ofLong Beach has any bearing on this Petition. Rather, an understanding ofthe “engrafting” analysis in City of Long Beachis only possible by adverting to Rappenecker, as did City of Long Beach. Rappenecker “engrafted” nothing onto Section 1032 in concluding that settlement led to recovery of costs to the plaintiff and no “engrafting” is now required to lead to the sameresult. 25 Respondent’s AnswerBrief B. THE CASE LAW THAT CHOMP URGES IS “CONSISTENT” WITH CHINN DOES NOT INVOLVE MONETARY PAYMENT TO PLAINTIFFS CHOMPpoints outthat “[n]umerous courts” haveheld that defendants dismissed from their cases are held to be prevailing parties. True enough. But none of these authorities discuss whether, where a defendant purchases a dismissal, the dismissal itself so powerfully invests the defendant with prevailing party status that that status trumps the monetary recovery to the plaintiff. See generally Gantt _v. Sentry Insurance, 1 Cal. 4" 1083, 1098 (1992) (“[A] case is not authority for a point that was not actually decided therein.”) (citing Consumers Lobby Against Monopolies v. Public Utilities Commission, 25 Cal. 3891, 902 (1979)). Following the logical fallacy in Chinn, CHOMP argues that the existence ofdismissal-based prevailing party status must meanthat settlement proceedsare disregarded in the “prevailing party” analysis. As demonstrated above, the logical fallacy in which Chinn engaged wasa simple leap of faith from faulty premises from Judge Breiner’s assurance that dismissals would still lead to “prevailing party” status as to defendants — without any analysis as to the effect of a settlement. That analysis is the center of this Petition, yet CHOMPrefuses to demonstrate how a Legislative History that makes no mention of setthement-induced dismissals (or settlement at all) can so powerfully change the law. Rather, this Court insists on a pragmatic analysis. Goodman,47 Cal. 4" at 1337-38; Graham, 34 Cal. 4" at 570 (“[A] court may baseits attorney fees decision on a pragmatic definition ofthe extent to which 26 Respondent’s AnswerBrief each party has realized its litigation objectives, whether by judgment, settlement, or otherwise.) (quoting Santisas at 622). Instead, CHOMPrelies on the uncontroversial — and inapplicable — notion that a routine, non-settlement dismissal supports a finding that the dismissed defendant is the “prevailing party.” None of the cases cited by CHOMPinvolve a monetary settlement leading to a dismissal. (Opening Brief at 10-11 & n. 1-3. (citing Santisas v. Goodin,17 Cal. 4" 599 (1998) (dismissal withoutsettlement, but dictum supporting “prevailing party”status for plaintiff in settlement); Mon Chong Loong Trading Corp. v. Superior Court, 218 Cal.App. 4" 87 (2013) (voluntary dismissal without settlement); Cano Glover, 143 Cal.App. 4" 326 (2006) (dismissalafter demurrer); Great Western Bank v. Converse Consultants, Inc., 58 Cal.App. 4 609 (1997) (multi- defendant case involving offsets under Civil Procedure Code Section 877); Crib Retaining Walls, Inc.v. NBS/Lowry,Inc., 47 Cal.App. 4" 886 (1996) (interplay of Section 998 offer and Section 877)). Consequently, in the event that the literal “dismissal” provision of Section 1032(a) causes someanalytical difficulty in determining “prevailing party” status, the “pragmatic definition” approach suggested in Santisas resolves the issue. Even wherethelitigation result is not optimal, costs to a plaintiffare routine. Michell, 49 Cal.App. 4" at 1198; Valentino, 201 Cal.App. 3" at 702. See generally, Commission on Peace Officer Standards & Training v. Superior Court, 42 Cal. 4" 278, 290 (2007) (languageof a statute should not be given a literal meaning if doing so would result in absurd 27 Respondent’s AnswerBrief consequences the Legislature did not intend); Lampley v. Alvares, 50 Cal. App. 3% 124, 128-29 (1975) (“Where a statute is susceptible of two constructions, one leading to mischief or absurdity, and the other consistent with justice and commonsense, the latter must be adopted.”); Bob Jones University v. United States, 461 U.S. 574, 586, 76 L.Ed. 2" 157, 103 S.Ct. 2017 (1983) (well-established canon of statutory construction provides that literal language should not defeatthe plain purposeofthe statute). Resolution ofthis issue by ignoring “net monetary recovery” or by making an unguided guessor an overlyliteral view of one statusto the disadvantage of anotheris a resolution in Chinn and noothercase. Using CHOMP’s mode of analysis — relying on non-settlement “prevailing party” cases — properly leadsto the conclusion opposite to the one it advocates: any plaintiff could (and has here) cite reported decisions that show thata partial victory even with a loss of the major part ofthe casestill leads to a “prevailing party” determinationin plaintiff's favor. Chinn cites one such caseat p. 188: Michell, 49 Cal.App. 4" at 1198, but fails to analyze why its holding does not apply. This Court in Chavez, 47 Cal. 4" at 984 cited another with approval: Valentino, 201 Cal.App. 3"at 702. While these cases are analytically the same as settlement cases, CHOMPignores them even while advocating an analytical method that demandstheir consideration. 28 Respondent’s AnswerBrief C. “STREAMLINING” THE RULESIS AN INSUFFICIENT BASIS TO CHANGE THE LAW TO FAVOR SETTLING DEFENDANTSWITH A WINDFALL CHOMPcorrectly, but misleadingly, quotes a section ofGoodmanv. Lozano, 47 Cal. 4" 1327, 1335 (2010), that “The purpose of the 1986 legislation, which was sponsoredby the California Judges Association (CJA), wasto streamline the rules and procedures on the award oflitigation costs, which were deemed ‘hardto find and hardto follow.’ (Sen. Rules Com., Off. of Sen. Floor Analyses, Rep. on Sen. Bill No. 654 (1985-1986 Reg. Sess.) as amended July 8, 1986, p. 3 (Report on Senate Bill No. 654).)” CHOMP leaves unexplained why “streamlining”the statute should result in ignoring the “net monetary recovery” of a settlement in favor of the literalism of favoring defendants who purchase a dismissal and leave open the issue of costs. In addition to that, CHOMPfails to quote this Court’s explanation why “streamlining” was important: The CJA’s statement aboverefers to the then existing law regarding “which costs are, and are not, allowable.” (Rep. on Sen. Bill No. 654, supra, at p. 3 [legislation necessary to avoid having “to search through myriad statutes, cases and treatises in order to determine whether a particular cost item is allowable”]; Assem. Com. on Judiciary, Rep. on Sen. Bill No. 654 (1985-1986 Reg. Sess.) as amended Mar. 31, 29 Respondent’s Answer Brief 1986, p. 1 [lists of costs “are essentially restatements ofexisting law, and to a large extent are codifications ofcase law’’].) It did not refer to the definition of a “prevailing party.” The legislative history reveals instead thatat the time current section 1032 was reenacted, the “existing statutes d[id] not fully explain the concept ofthe 3 66‘prevailing party,’ and that a “comprehensive definition” was necessary to “further eliminate confusion.” (Rep. on Sen. Bill No. 654, supra, at pp. 1, 3.) Goodman,47 Cal. 4" at 1336. Hence we knowthat the “streamlining” of Section 1032 was not to create a literalism unknown before 1986, but, instead, to combine various statutes into a single place based on the concept of “prevailing party.” And this Court concluded in Goodmanthat, underthe “prevailing party” concept, the courts were to examine whethera plaintiff's recovery (subject to offsets) wasin fact a “net monetary recovery.”Id. at 1336-37. (As no offset by one defendant against another exists here, the holding of Goodman is inapplicable, but its analysis ofthe net recovery does apply.) Regardless whether deSAULLESobtainedthe right to proceed on the other causes of action (she did not), the settlement terms unequivocally 30 Respondent’s AnswerBrief demonstrate that she is the prevailing party (including, inter alia CHOMP’s insistence that the settlement proceeds offset any future wageloss recovery). Asthe Court of Appeal in Michell observed: The allowance of costs as a matter of right no longer depends on the character of the action involved but on how the prevailing party is determined. .. . [{] It is clear from the statutory language that when there is a party with a “net monetary recovery” (one of the four categories ofprevailing party), that party is entitled to costs as a matter of right; the trial court has no discretion to order each party to bear his or her own costs. Id. at 1197-98 (citations omitted). Thus “streamlined,” Section 1032 must be analyzed for its fundamental purposes, not some sense ofexpediency advocated by CHOMP. Streamlining more powerfully indicates rejection of the pretense of “absurdity” raised by the formalism ofdismissal in the settlement context and looking to whether a settlement resulted in a “net monetary recovery.” 31 Respondent’s Answer Brief D. “GOOD FAITH SETTLEMENT” CASES SUCH AS GOODMAN _V. LOZANO DEMONSTRATE THAT SETTLEMENT AMOUNTSARE TO BE CONSIDERED IN DETERMINATION OF “PREVAILING PARTY” STATUS IN SINGLE PLAINTIFF VS. SINGLE DEFENDANT CASES CHOMPerrsin claimingthat this Court’s decision resolving a conflict amongthe Courts ofAppeal on the proper treatment of settlement proceeds in the context ofa goodfaith settlement, Goodmanv. Lozano, 47 Cal. 4" 1327 (2010), “implicitly” recognizes the “procedural framework created by the Chinn ruling.” (Brief at 11.) As does any case holding on good faith settlements under Civil Procedure Code Section 877, Goodmanlooks to the actual monetary value ofthejudgment ofanon-settling party; Goodman held the value of the judgmentoffset by the good faith settlement determined the net monetary recovery as to the nonsettling defendant. While such casesare instructive as to the role of settlement proceeds, their actual holdings do not concern the situation here, involving asingle Plaintiffand a single Defendant. To be clear: the “good faith” cases do not hold on the situation here, wherethere are only twosettling adverse parties. Rather, these cases hold on the effect ofa “goodfaith” settlement on anon-settling defendant’s rights. As the cases after Goodman must considerthe effect ofthe settlement proceeds for that purpose concerning the right to cost recovery, it follows that settlement proceeds are to be considered for cost recovery between the settling parties. CHOMPerrs in arguing, however, that procedure has direct 32 Respondent’s AnswerBrief application here, whenits application is tangential, and showsthat practical recognition of settlement proceeds is consistent with all cases involving settlement. 1. CHOMPErrsin its Overly Technical Reading of the Meaning of the Word “Recovery” CHOMPmixesup its own technical reading of the word “recovery” with the holding ofGoodmanto concludethat this Court’s Goodmandecision supports the notion that a “recovery” can only be recognized if by an “order orjudgment.” (Brief at 13-14.) CHOMPthen claimsthat the settlement here cannot be such a “recovery”eligible for “net monetary recovery”status. Goodman’s analysis of a zero recovery is applicable only to the situation in that decision where, under Section 877, “a plaintiffs settlement completely offsets a damage award against a nonsettling joint tortfeasor.”Id. at 1333. Section 877is not limited to situations where a settlementis an order orjudgment, but appliesto “a release, dismissal with or without prejudice, or a covenantnotto sue or not to enforcejudgment.” Yet, under Goodman,such a settlementis part of the analysis, which does not depend onthe lock-step “order or judgment” CHOMPclaimsis a requirement. Explaining the Section 877 process, Goodmanagreed withthe dissent in an earlier Court of Appeal decision: The Court of Appeal here followed the 33 Respondent’s AnswerBrief Wakefield dissent, which explained: “The common meaningofthe word ‘net’ is ‘free from all charges or deductions’ or ‘to get possession of: GAIN.’ (Webster’s Collegiate Dict. (10th ed. 1993) p. 780.) The word ‘monetary’ obviously means‘relating to money.’ (Webster’s Collegiate Dict. (10th ed. 1993) p. 750.) The word ‘recover’ means ‘to gain by legal process’ or ‘to obtain a final legal judgmentin one’s favor.’ (Webster’s Collegiate Dict. (10th ed. 1993), p. 977.) Thus, the common meaning of the phrase ‘the party with a net monetary recovery’ is the party who gains moneythatis ‘free from ... a// deductions.’ ... [§] A plaintiff who obtains a verdict against a defendantthat is offset to zero by settlements with other defendants does not gain any money free from deductions. Such a plaintiff gains nothing because the deductions reduce the verdict to zero.” Wakefield, 145 Cal.App. 4" 963, 992 (dis. opn. of Mihara, J.).) We agreewith the instant Court ofAppeal and the Wakefield dissent that the term “net monetary recovery” is clear and that we must 4 ©give effect to it according to the usual, 34 Respondent’s AnswerBrief ordinary import of the language employed... .” “ [Citations. | Goodman,47 Cal. 4" at 1333-34(italics in original; some citations omitted). Onthis point, it is without dispute that ddSAULLES’settlement was offset by nothing so she gained something against CHOMP — the monetary settlementitself. It is also without dispute that the defendant in Goodman challenging the cost award was nota settling party, id. at 1330, and by operation of Section 877, its obligation to plaintiff was reduced to zero. Id. at 1338-39. The only reasonable conclusion is that, with the resulting dismissal of the settled causes of action here and a judgment concluding litigation in the Superior Court, deSAULLES received an “order or judgment”that resulted in a “net monetary recovery”to her. See also Boeken v. Philip Morris USA, Inc., 48 Cal. 4" 788, 793 (2010) (“dismissal with prejudice is the equivalent of a final judgment on the merits”) (citation omitted); Wohlgemuth, 207 Cal.App. 4" at 1260 (“The acceptance of the instant compromise agreement calling for a voluntary dismissal with prejudice would havefinally disposed of the complaintas effectively as one calling for entry ofjudgmentin favorof plaintiff.) (citations and footnote omitted); On-Line Power, Inc. v. Mazur, 149 Cal. App.4" 1079, 1085 (2007) (dismissal is tantamount to judgment) (citations omitted). Even authority upon which CHOMPplacesrelianceforits “dismissal” argument concerning prevailing parties holds that, for the purposes of 35 Respondent’s AnswerBrief imposition of costs, no distinction exists between a judgmentor a voluntary dismissal. Mon Chong Loong, 218 Cal.App. 4" at 93 (“The appropriate moment for a court to assess whether a more favorable judgment or award has been obtained is at the conclusion of the lawsuit. In many cases, the conclusion ofthe lawsuit is synonymous and contemporaneouswith the entry ofjudgment, and thusthe distinction is irrelevant. Here, however, the action ended with a voluntary dismissal.”) (footnote omitted). Factually, Superior Court entered judgment against deSAULLES.(15 Apx., 275-76.) In the Judgment, the Superior Court observed the settlementas to the contract claims (id. at 276:6-7), which required CHOMPto pay deSAULLESthe amountof$23,500, in exchange for which she dismissed the contract-based causes of action (7Apx.at 98:12-16; 15 Apx. at 274). Even under CHOMP’sstrained analysis, therefore, deSAULLES recovered something sufficient to warrant “net monetary recovery” status under the “usual, ordinary import of the language employed” by Section 1032. See Goodmanat 1334 (citation omitted). CHOMPurges that dictum noted in Goodman supports their notion that the trial court had “discretion” to deny costs to ddSAULLES.(Briefat 16, n.4.) The Opening Briefmakes no referenceto the discretionary standard of review. (Brief at 6-7 (Standard of Review is de novo.).) The note in Goodman in relevant part is: “Our holding today is simply that a plaintiff whose damage award is offset to zero by a prior settlement does not categorically qualify as a prevailing party (“the party with a net monetary 36 Respondent’s AnswerBrief recovery’’) as a matter of law. Unless a party otherwise fits into one of the remaining three categories ofprevailing party under section 1032(a)(4), a trial court will have the discretion to make the determination as to a prevailing party underthe section.” Id. at 1338, n.4 (italics in original). CHOMPtakes that to meanthat “[i]fsettlement sumsdid qualify as anet monetary recovery, then the settling party would be entitled to costs as a matter ofright under Section 1032.” (Brief at 16, n.4 (italics in original).) CHOMP’s conclusionbetrays its misunderstanding ofGoodman.First, the net recovery in Goodmanasto the nonsettling defendant was zero. In contrast, d0SAULLES’recovery against CHOMPwasfarin excessofzero. Second, the dictum noted in Goodman is more reasonably understood as allowing a plaintiff whose net monetary recovery was offset to zero to demonstrate that it had other grounds for recovery, perhaps in equitable remedies or some other form ofrelief. 299Consequently, the “amorphous conceptof‘success’” that so concerned this Court in Goodmanis absententirely here. 2. CHOMPErrsin its Reliance on Out-of-state Cases Nor does CHOMP’sreliance on out-of-State authority changethis. For example, the Appellate Court of Illinois in Gebelein v. Blumfield, 231 Il.App. 3% 1011, 1014 (1992), refused to award costs in circumstances similar to those here, relying on a dictionary definition ofthe word “recover” that was the “narrower” definition. CHOMP’s quotation of that language 37 Respondent’s AnswerBrief omits that the Gebelein court cited it as the “narrower” definition. Even moresignificant to this case, the Gebelein court simply assumed the opposite construction that this Court and the line of cases from R. ppeneckerhasgivensilenceasto costs: that, in Illinois,it is the fault ofthe plaintiff. In California, the defendant is tasked with watching outforitself. Compare Folsom, 32 Cal. 3" at 678 (citing both Rapp and Rappenecker); Rapp,74 Cal. at 533 (absent provision for fees in stipulation they are properly awarded); Engle, 157 Cal.App. 4" at 169; Rappeneckerat 264 (“Byits failure to draft with precision kits compromise offer, defendant can not now be heard to claim that its language precludes the award of costs.”); with Gebelein at 1014 (“While the plaintiff has no right to recover costs when the underlying case is settled, the parties can obviously negotiate for the payment if they chooseto do so.”). In California, a defendantthat takes care to include costs in a settlementis likewise given the benefit ofsettling all “costs,” including fees. Martinez, 195 Cal.App. 4" at 1041 (“Unless the offer expressly states otherwise, an offer ofa monetary compromise undersection 998 that excludes “costs” also excludes attorney fees.”) (distinguishing Engle). The later Holtz v. Waggoner, 377 Ill.App. 3 598 (2007), decision, also cited by CHOMP,confirmsthe narrow approach takenin Illinois when denying costs overall where the plaintiff s “mandamus”reliefwas dismissed. Nothing in Holtz speaks to settlement except its citation to Gebelein as hewing to a restrictive approach. And that is an approach not used in California. 38 Respondent’s AnswerBrief Nor does CHOMP’sreliance on a Florida case assist its cause. Gallagher v. Manatee, 927 So. 2" 914 (Fla.App. 2006), involved a cap on damagesagainst a governmental agency. (re: Fla. Stat. § 760.11 (“Thetotal amountofrecovery against the state and its agencies and subdivisionsshall not exceed the limitation as set forth in § 768.28(5)).”). The Florida court interpreted the phrase “total amount of recovery”to include costs andfees, in a strict construction of the statute meant to limit the dollar amount of claims against governmental agencies. Gallagher at 917-18. While that analysis may have somerelevancyto specific Florida law, CHOMP makes no effort to explain whyit affects settlement proceedshere. And other out-of-California cases do hold that fees or costs after settlement are proper. E.g., Allison v. Board of County Comm’rs, 241 Kan. 266, 273; 737 P.2d 6 (1987) (“For a party to “prevail,” a judicial determination is not necessary. Parties are considered to have prevailed when they vindicate a right through a consent judgment, a settlement, or without formally obtainingrelief.”) (citation omitted); Johnson v. G.D.F., Inc. D/b/a Domino’s Pizza, 2014 U.S. Dist. LEXIS 14446 (N.D.Ill. February 5, 2014) at *24. Evaluating these standards, whether textual, formalistic, based on policy, or otherwiseis not a particularly enlightening experiment: the law in California is consistent, supportive of allowing costs to a settling plaintiff, and needs neither support nor challenge from the way other States consider this issue. 39 Respondent’s Answer Brief E. CHOMP ERRS IN DISTINGUISHING SECTION 998 CASES CHOMPerrsinits assertion that Rappeneckercan be distinguished as a case involving Section 998. Chinn — upon which CHOMPplacesgreat reliance — is a case underSection 998. Id. at 179; 188 (“The statutory scheme governing costs and section 998 offers allows parties to allocate costs and attorney fees in their compromise agreement. (§§ 998, 1032, subd. (c).)”). CHOMPoffers no reason not to allow the Section 998 cases to assist in construing “prevailing party”statusin all cases. E.g., Engle, 157 Cal.App. 4" at 168-69 (following Folsom); On-Line Power, 149 Cal. App.4" 1079 (allowing fees in a settlement that required a dismissal); Ritzenthaler, 93 Cal.App. 4" 986 (costs & fees); Lanyi, 177 Cal.App. 3" at 185-87 (costs and fees); Rappenecker, 93 Cal.App. 3256 (costs) (cited by Folsom, 32 Cal. 3 at 677-78). Folsom, of course, did not involve Section 998, but an informal settlement, and favorably examined Rappenecker, which did involve a Section 998 offer. Folsom at 677-78 & n.15. While the settlement here was under Section 664.6 (7 Apx. 98:12-16), CHOMPdoes not discuss the cases under Section 664.6 that are directly analogous to Section 998 cases. E.g., Saba v. Crater, 62 Cal.App. 4° 150 (1998) (“Wefail to find a reason to interpret the requirement there be a writing under section 998 differently from the same requirement under section 664.6 and therefore hold the statement placed orally on the record doesnot satisfy the requirementthat a section 998 demandbein writing.”’). The purposes of settlement are, on the issues presented in this Petition, the 40 Respondent’s AnswerBrief same whether under Section 1032, 998, or 664.6. See Chavez v. City of Los Angeles, 47 Cal. 4" 970 (2010) (whether attorney fees are recoverable under Sections 1032 and 1033.5); Martinez, 195 Cal.App. 4"at 1041 (“[E]xclusion of costs also excludesattorney fees ... based on the rapport between sections 998, 1032 and 1033.5.”); Engle,157 Cal.App. 4" at 168 (entitlement to costs and, if authorized, fees). The Court of Appeal has noted that “section 664.6 should be construed as authorizing a procedure not only for the entry of judgment pursuantto the settlement agreement but for the adjudication of matters incidental to the judgment, such as attorney’sfees, that come within the established compassofpostjudgment motions.” Alioto Fish Co. v. Alioto, 27 Cal.App. 4" 1669, 1687, n.11 (1994)(italics in footnote). The attention to specific terms in settlementis no different here, where counsel assisted the parties in crafting a settlement that was meant to be enforced under Civil Procedure Code Section 664.6. This is the same standard as applicable to a Section 998 settlement. See Engle, 157 Cal.App. 4™ at 168-69 (collecting Section 998 cases); Linthicum v. Butterfield, 175 Cal.App. 4" 259, 272 (2009) (“One of the cardinal rules of contract constructionis that, ifpossible, the contract should be construed to renderit valid and enforceable.”) (citing Cal.Civ. Code §§ 1643, 3541) (re Section 998 offer). Regardless whether the settlement was under Section 998, Section 664.6, or an informal agreement, a settlement agreementis a contract, governed by the samelegal principles which apply to contracts generally. Folsom, 32 Cal.3d at 677; Weddington Productions, Inc. v. Flick, 60 Cal.App. 4" 793, 810 (1998). 4l Respondent’s Answer Brief VII. CONCLUSION CHOMP mistakenly urges that the “streamlining” that the 1986 revisions imparted to Section 1032 meansthat a technicality —all dismissals— are legally the same whether an expedientpart ofsettlement,or as a dismissal on the merits, or for a procedural default by a plaintiff. The pragmatic approach consistently required by this Court, however, results in an unmistakable “net monetary recovery” in settlement as would a money verdict. Chinn’s opposite conclusion is unsupported by the very Legislative History upon whichit purportsto rely, andis to the contrary ofthe consistent- history of awarding costs to plaintiffs who accept monetary settlements. Accordingly, ddSAULLESrespectfully requests that this Court affirm the decision of the Court of Appeal with instructions to deny costs to CHOMPandto grantcosts to her. Dated: September 22, 2014 42 Respondent’s AnswerBrief CERTIFICATE OF LENGTH- Rule 8.520(c)(1) I am the counsel of record for Respondent. This brief was produced ona computer and does not exceed 14,000 words, including footnotes. I used the word counting function on the WordPerfect program to determine that this brief contains 9,757 words, excluding tables. a} Dated: September22, 2014 HENRY J. JOSEFSBERG, ESQ. J Vin- 43 Respondent’s AnswerBrief PROOF OF SERVICE I am employed in the County of Los Angeles, State of California and I am over the age of 18 and not a party to the within action. My business address is One Ten West Ocean Boulevard, Suite 611, Long Beach, California 90802. On September23, 2014, I served the document(s) entitled: RESPONDENT’S ANSWER BRIEF on the interested parties in this action by placing a true and correct copy of such document(s) in a sealed envelope(s) addressed as follows: Monterey County Superior Court Hon. Lydia M. Villarreal 1200 Aguajito Road Monterey, California 93940 Christopher E. Panetta, Esq. Fenton & Keller 2801 Monterey-Salinas Hwy Post Office Box 791 Monterey, California 93942 California Court of Appeal Sixth Appellate District 333 West Santa Clara Street Suite No. 1060 San Jose, California 95113 (the “Addressee”) and serving such document(s) as follows: X_ REGULAR MAIL. Ontheservice date set forth hereinabove in the County of Los Angeles, I deposited such envelope(s) with postage thereon fully prepaid in the United States mail. Executed on September 23, 2014, at Long Beach, California. X_ (State) I declare under penalty that the above_is true’and correct. Respondent’s Answer Brief