DESAULLES v. COMMUNITY HOSPITAL OF THE MONTEREY PENINSULA

Respondent’s Opening Brief on the Merits

Cal.August 22, 2014

SUPREME COURT fie Lh Case No.: 8219236 aen IN THE SUPREME COURT OF THE ANG 32 Zvi STATE OF CALIFORNIA crank A. Molsuire Gler MAUREEN DESAULLES, Plaintiff / Appellant, V. COMMUNITY HOSPITAL OF THE MONTEREY PENINSULA, Defendant / Respondent/ Petitioner Court of Appeal of the State of California, Sixth District Case No. H038184 Superior Court of the State of California, County of Monterey Case No. M85528 OPENING BRIEF Attorney for Defendant / Respondent/ Petitioner COMMUNITY HOSPITAL OF THE MONTEREY PENINSULA Christopher E. Panetta (SBN 175127) FENTON & KELLER A Professional Corporation 2801 Monterey-Salinas Highway Post Office Box 791 Monterey, California 93942-0791 Telephone: (831) 373-1241 Facsimile: (831) 373-7219 Case No.: S219236 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA MAUREEN DESAULLES, Plaintiff / Appellant, V. COMMUNITY HOSPITAL OF THE MONTEREY PENINSULA, Defendant / Respondent/ Petitioner Court ofAppeal of the State of California, Sixth District Case No. H038184 Superior Court of the State of California, County of Monterey Case No. M85528 OPENING BRIEF Attorney for Defendant / Respondent/ Petitioner COMMUNITY HOSPITAL OF THE MONTEREY PENINSULA Christopher E. Panetta (SBN 175127) FENTON & KELLER A Professional Corporation 2801 Monterey-Salinas Highway Post Office Box 791 Monterey, California 93942-0791 Telephone: (831) 373-1241 Facsimile: (831) 373-7219 TABLE OF CONTENTS Page No. I. ISSUE PRESENTED...00......ccceeceseeeeeseeseeeeeeseeeeeeansenseuereseseesesseeseenee 1 TH. INTRODUCTION(0ceeeecccscsceeeesseeeeceenecseenenecseeaseaseseeseesenenees 1 Il. STATEMENT OF FACTS...ccccccsccssesecssssesseeseeseeeeeeeaeenens 3 A. Background Facts ......... cc ccsscessssseeseeeeeneeereneeeeeseessnesseseseesens3 B. The Court ofAppeal’s Decision ........... ccc cceeeeeeeesseereeneeeeenees 5 TV. LEGAL DISCUSSION........ceecescectscssessensssssesesecnessteseeesseeseeeees6 A. The Standard ofReview ..........cccscssessessssssesscnreeesseeneeeseeeneeeees6 B. Settlement Proceeds Do Not Qualify As A “Net Monetary Recovery” Under Code of Civil Procedure Section 1032.......7 1. The Chinn holding that settlement funds fail to qualify as a net monetary recovery is consistent with the law, legislative intent, and the goals of simplifying and streamlining procedures for determining costs..........7 a. The Chinn holding...............:cssceeseeeeeeenees7 b. The Chinn rulingis consistent with numerous court decisions that strictly apply the rule that a defendant who obtains a dismissal is the prevailing party as a matter ofright................ 10 The Chinn ruling is consistent with the Supreme Court’s ruling in GOOdMAN........cccesessseseeteees 11 Permitting settlement proceeds to qualify as a “net monetary recovery” would create confusion, lead to disputes over the resolution of costs issues, and would increase the workload of an already overburdened JUGICIATY ooeectseeeenesseeessnssesecsssecseceeeneseneensensens 12 a. The common meaning of “recovery” is to recover by way of an order orjudgment......... 13 The case law does not support a finding that settlement funds qualify as a “net monetary TECOVETY” ...eececcceeseseseeseseeseseereereescnsutessssnsesseeaes 14 TABLE OF CONTENTS (CONT’D) . Page No. c. Permitting settlement sums to qualify as a “net monetary recovery” will lead to disputes and is contrary to the legislative goal of simplifying COSTS POCEMUIES. 0.0... eee eesscetesteersteeteeeteeeeeeeees 17 V. CONCLUSIONo.ooccsectesesssseneseessseeseeessensesseeseeeesseeanenes 19 -ii- TABLE OF AUTHORITIES Page No.: STATE CASES Cano v. Glover (2006) 143 Cal.App.42 326 vccccssssccsssseccsseeseseeeeneeecesnssesssneessnseesseessns 10 Childers v. Edwards (1996) 48 Cal.App.4™ 1544 .occccssccsssecssesesscesneecsssecneessnessneessessies 18 Chinn v. KMR Property Management (2008) 166 Cal.App.4°? 175 vsssecssssssescsssetsccssecesssneessssseessesseesssanessseesees seseaeceneeneeaseeeneeseeeaaes 1, 2, 4, 5, 7, 8, 9, 10, 11, 12, 14, 15, 16, 17, 19, 20 City ofLong Beach v. Stevedoring Services ofAmerica (2007) 157 Cal.App. 4° 672 w..cssccseccseecsereerseeneesseeeneesnesssessees 6, 11 Crib Retaining Walls, Inc. v. NBS/Lowry, Inc. (1996) 47 Cal.App.4th 886 .ccsceeesetesseseetenseeseeteeneteenesees 10, 11 Folsom v. Butte County Assn. ofGovernments (1982) 32 Cal.3d 668 oo. .ccesscssssssessseessecsesenseseseseescsesetseeeeesesensensensees 17 Gallagher v. Manatee County (Fla. App. 2006) 927 S0.2d 914... cccescsesssserseeeserstessenereneresseeneennes 14 Gebelein v. Irvin (1992) 231 TILApp.3d 1011 wiecesereeeeeseneeteneeeeeeteeseretses 13, 18 Gilbert v. National Enquirer, Inc. (1997) 55 Cal.App.4? 1273 vccccssssecessseecessesecseeeeesnerecesnsnecessnesesnessssees 8 Goodmanv. Lozano (2010) 47 Cal.41327 veces 2, 6, 7, 8, 11, 12, 13, 15, 16, 18 Great Western Bank v. Converse Consultants, Inc. (1997) 58 Cal.App.4th 609 occcceessseesenenesseeneeestsnerersenseesssenenees 10 Holtz v. Waggoner (2007) 377 IIL.App.3d 598 v.cccscesseessssseseestserseesenererersesesesssersenens 14 - ili - TABLE OF AUTHORITIES-CONT’D Page No.: STATE CASES Mon Chong Loong Trading Corp. v. Superior Court (2013) 218 Cal.App.4” 87 .occccsssssesssecsesseeeseecseestessssseeseceseesneesssseensnes 10 Rappenecker v. Sea-LandService, Inc. (1979) 93 Cal.App.3d 256 .....cescssesesesessssesenereeeeeteererereessanensseneanesenens 16 Santisas v. Goodin (1998) 17 Cal.4™ 599 o.cccssccsccsssesesccecnssecssssnsesssssseeessnecenssnanssssses 1, 10 Schisler v. Mitchell (1959) 174 CalApp.2d ....cecsccssessssesesecterseesenecnssensnssstensenseneseeeneaes 18 Wakefield v. Bohlin (2006) 145 Cal.App.4? 963 ...escsssseescesesscsssesssneecssneesssnesenssssnnesees 8, 19 OTHER AUTHORITIES 7 Witkin, Cal. Procedure (sn Ed., 2014 Supp.), Judgment, §92................ 10 Black’s Law Dictionary 1466 do" Ed. 2004) ......ececeeceesssrseeseecereeseeeesenseeens 13 Code of Civil Procedure S877 vcscsssescsescscececesessensssssscescseseseseseseeessssssesenensesenessessnessssssseeseneneneees 11 Code of Civil Procedure § 1032 ..... 1, 2, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20 Random House Unabridged Dictionary 1613 (2nd Ed. 1993)...13 -iv- I. ISSUE PRESENTED Dosettlement proceeds qualify as a “net monetary recovery” under Code of Civil Procedure Section 1032, subdivision (a)(4)? II. INTRODUCTION Under Code of Civil Procedure Section 1032 (“Section 1032”), subdivision (a)(4), a party with a “net monetary recovery”is a prevailing party entitled to recover costs “as a matter of right.” In this case, plaintiff argues, and the Sixth District Court of Appeal agreed, that proceeds obtained through a settlement qualify as a “net monetary recovery” under Section 1032. This position directly conflicts with existing case law and creates the potential for conflict and uncertainty with respect to costs procedures. It was exactly this type of uncertainty that the Legislature sought to avoid when it enacted Section 1032. (Chinn v. KMR Property Management (2008) 166 Cal.App.4" 175, 189 [the current version of Section 1032 was enacted in 1986 ““‘to simplify the ... procedure for determining ... costs, thereby relieving court congestion and easing judicial workload.’”’}) Prior to the Court of Appeal’s ruling, the law was clear that settlement proceeds did not qualify as a “net monetary recovery” under Section 1032. The court in Chinn v. KMR Property Management, supra, examined the legislative history of Section 1032 and found that “lcJonstruing the term ‘net monetary recovery’ in context, we conclude that the Legislature did not intend to include settlement proceeds received by the plaintiff in exchange for a dismissal in favor of the defendant.” (Chinn, supra, 166 Cal.App.4th at 188.) The Chinn ruling ensures the internal consistency of Section 1032. Under Section 1032, and pursuant to well- established case law, “a defendant in whose favor a dismissal is entered”is a prevailing party. (See e.g. Santisas v. Goodin (1998) 17 Cal.4"" 599, 606.) The Chinn court reasoned that allowing the term “net monetary recovery” to include settlement proceeds “would lead to an absurd result” because both a settling plaintiff who received settlement proceeds and a settling defendant who obtained a dismissal, would be entitled to an award ofcosts. (Chinn, supra, 166 Cal.App.4" at 189.) By ruling that settlement proceeds do not qualify as a net monetary recovery, the court in Chinn ensured a procedural framework for determining costs awards that was coherent, consistent with case law, and consistent with the legislative goal of simplifying costs procedures. The Chinn decision, and the procedural structure it created, was accorded further support by the Supreme Court’s holding in Goodman v. Lozano (2010) 47 Cal.4" 1327. In that case, the Court made clear that Section 1032’s net monetary recovery analysis looks only to the actual monetary value of the judgmentitself and does not take into account overall success of the plaintiff through settlement. Permitting settlement funds to qualify as a “net monetary recovery” under Section 1032 would upset the balance and the procedural simplicity created by Chinn and other decisions. It would provide the basis for two opposing parties to assert prevailing party status, which would lead to disputes over costs issues and create further complexities in the law as courts grapple with choosing one prevailing party in circumstances where case law permits a finding oftwo prevailing parties. Byruling that settlement proceeds do not qualify as a net monetary recovery, the court in Chinn ensured a framework for determining costs awards that was consistent with the language of Section 1032, consistent with the case law, and consistent with the legislative goal of simplifying costs procedures. For that reason, and for the reasons presented in the appellate briefs and Petition for Review,petitioner Community Hospital of the Monterey Peninsula respectfully requests that the Court uphold the Chinn ruling and find that settlement proceeds do not qualify as a net monetary recovery under Section 1032. Ill. STATEMENT OF FACTS A. Background Facts Plaintiff Maureen deSaulles, (“plaintiff”), worked as a registrar for defendant Community Hospital of the Monterey Peninsula (the “Hospital”) from March 2005 to July 2006. (Joint Appendix, (“JA”), 151, 177.) She initiated an action against the Hospital on July 17, 2007 alleging that the Hospital failed to accommodate her disability. (JA 1-40.) Plaintiff's alleged disability prevented her from being aroundill people. (JA 60-61.) It is undeniable that being around ill people is an essential function of a registrar position in a hospital. (JA 202.) Despite the difficulty of accommodating sucha restriction, the Hospital attempted to accommodate plaintiff and found accommodationsthat included an open position that had no patient contact. (JA 26-27.) Plaintiff rejected the accommodations and instead brought a civil action alleging a first cause of action for failure to accommodate, a second cause of action for retaliation, a third cause of action for breach of implied contract, a fourth cause of action for breach of the covenant of goodfaith, a fifth cause of action for emotional distress, a sixth cause of action for “punitive damages,” and a seventh causeofaction for termination in violation of public policy. (JA 1-40, 171.) Plaintiff's second through seventh causes of action were based largely on her first cause of action and her allegation that she was not reasonably accommodated. In responseto plaintiff's complaint, the Hospital filed a motion for summary judgment and requested that the trial court dismiss the action because it was undisputed that the Hospital had offered plaintiff a reasonable accommodation. (JA 37-38.) The trial court dismissed plaintiff's main cause of action for failure to accommodate, but allowed her to proceedto trial on the other claims. (JA 39-40.) Attrial, the Hospital filed a motion in limine seeking to preclude plaintiff from introducing any evidence at trial regarding the Hospital’s alleged failure to accommodate since that claim had been summarily adjudicated in the Hospital’s favor. (JA 185-186.) Thetrial court granted the motion, whicheffectively precludedplaintiff from establishing her second,fifth, sixth, and seventh causes of action at trial. The trial court therefore adjudicated those causes of action in the Hospital’s favor. (JA 185-186.) The parties then entered into a settlement agreement whereby plaintiff agreed to, and did, dismiss with prejudice her two remaining causes of action in exchange for payment of $23,500. (JA 185; 141; Attachment 2.) Plaintiff's dismissals terminated the action in the trial court. The settlement only concernedplaintiff's two contract claims and plaintiff retained the right to appeal the claims adjudicated by the trial court. (JA 98.) The parties further agreed to hold off on filing any motions or memorandums of costs pending any appeals. (JA 99, 276.) The settlement served the Hospital’s litigation purposes by eliminating the costs of trial and effectively providing the Hospital with exactly what it would have obtained hadit prevailed at trial: dismissal with prejudice ofplaintiff's two remaining claims. Moreover, and with respectto the issue ofcosts, this procedure was permitted under controlling appellate case law. Under Chinn, supra, settlement proceeds do not qualify as a “net monetary recovery” in determining the prevailing party in an action. (Chinn, supra, 166 Cal.App.4th at 188.) Accordingly, at the time of the settlement, the law prohibited plaintiff from using the receipt of the settlement sum as a basis to claim that she wasentitled to costs as a prevailing party. The trial court then issued a judgment based on the summary judgment ruling, the rulings at trial, and the voluntary dismissals, which provided that “[p]laintiff recover nothing from defendant.” (JA 276; Attachment2.) Plaintiff then filed an appeal challenging the trial court’s rulings dismissing her first, second, fifth, sixth, and seventh causes. The Sixth District Court ofAppeal deniedthe appealin its entirety. (JA 144-223.) Thereafter both parties filed memorandumsof costs. (JA 49-69; JA 82-86.) Each party movedtostrike the other’s costs. (JA 87-115; JA 119- 21.) On January 18, 2012, the trial court exercised its discretion to strike plaintiff's costs and award the Hospital its costs. (JA 377-378; Reporter’s Transcript 7:6-14; Attachment 2.) Plaintiff then appealed the costs award to the Court of Appeal arguing that the ruling in Chinn shouldbe rejected and that the settlement sum that she received madeherthe prevailing party for purposesof costs. B. The Court of Appeal’s Decision On May 2, 2014, the Court of Appeal issued a published decision expressly rejecting the Chinn case and reversing the costs award to the Hospital. The Court of Appealruled that contrary to the holding in Chinn, a settlement payment may qualify as a “net monetary recovery” under Section 1032 when an action is dismissed. (Typed opn. p. 19; Attachment 1.) The Court of Appeal’s ruling rests on its finding that there is “nothing” in the language of Section 1032 that “requires a trial court to 399 disregard a settlement payment as a ‘net monetary recovery.’” (Typed opn. p. 19.) The Court of Appeal acknowledged that the word “recovery”asit is used in the term “net monetary recovery” means “to gain by legal process” or “to obtain a final legal judgment in one’s favor,” but it held that the settlement sum receivedbyplaintiff in this case was a “recovery” becauseit was madeorally before the court. (Typed opn. p. 16.) And, thoughthetrial court ruled in the Hospital’s favor and dismissed five of plaintiff's seven causes of action, and though plaintiff voluntarily dismissed with prejudice her two remaining claims, the Court of Appeal found that the Hospital was not a defendant in whose favor a dismissal was entered because thetrial court’s judgment did not“expressly dismiss the action.” (Typed opn.p.20, 23.) The Court of Appeal also ruled that though the judgmentin this case stated that “[p}laintiff recover nothing from defendant,” plaintiff's receipt of settlement proceeds constituted “relief” for purposes of Section 1032. (Typed opn. p. 26.) The Court of Appeal therefore ruled that the Hospital could not claim prevailing party status under Section 1032 as a defendant wherethe plaintiff obtained norelief. (Typed opn.p. 26.) The Court of Appealruled that because settlement proceeds qualify as a “net monetary recovery” under Section 1032, plaintiff was entitled to her costs as a matter of right. Based on that finding, the Court of Appeal reversed the trial court’s ruling and awarded plaintiff her costs. (Typed opn.pp. 3, 20.) Thereafter, the Hospital filed a petition for review with the Supreme Court, which wasgranted on July 23, 2014. IV. LEGAL DISCUSSION A. The Standard of Review Where the determination of whether costs should be awarded is an issue of law based on undisputed facts, courts exercise de novo review. (City of Long Beach v. Stevedoring Services of America (2007) 157 Cal.App.4" 672, 678.) de novo review is also proper where the issue regarding costs involves the interpretation of a statute. (Goodman v. Lozano (2010) 47 Cal.4" 1327, 1332.) With respect to interpreting a statute, and as the Court in Goodman explained, ... [the] primary goal is to determine and give effect to the underlying purpose of the law. Our first step is to scrutinize the actual words of the statute, giving them a plain and commonsense meaning. If the words of the statute are clear, the court should not add to or alter them to accomplish a purposethat does not appear onthe face ofthe statute or from its legislative history. In other words, weare notfree to give the words an effect different from the plain and direct import of the terms used. However, the “plain meaning” rule does not prohibit a court from determining whether the literal meaning of a statute comports with its purpose or whether such a construction of one provision is consistent with other provisions of the statute. To determine the most reasonable interpretation of a statute, we look to its legislative history and background. (Goodman, supra, 47 Cal.4" at 1332 (internal punctuation and citations omitted.) B. Settlement Proceeds Do Not Qualify As A “Net Monetary Recovery” Under Codeof Civil Procedure Section 1032. 1. The Chinn holding that settlement funds fail to qualify as a net monetary recovery is consistent with the law, legislative intent, and the goals of simplifying and streamlining procedures for determining costs. a. The Chinn holding. The court in Chinn held that settlement funds do not qualify as a net monetary recovery for purposes of Section 1032. This ruling created a framework for analyzing cost issues that is consistent with the statute, case law, legislative history, and the goal of simplifying procedures for determiningcosts. In 1986, the Legislature enacted the current version of Section 1032. In its current form, Section 1032 defines “prevailing party” as a 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 anyrelief against that defendant.” (Chinn, supra, 166 Cal.App.4" at 187.) Section 1032 provides that costs are available as “a matter ofright” whenthe prevailing party falls within one of these four categories. (Chinn, supra, 166 Cal.App.4" at 188.) When none of the parties fall into one of these categories, the trial court may determine the prevailing party and hasthe discretion to allow or deny costs, or apportion costs between the parties. (Gilbert v. National Enquirer. Inc. (1997) 55 Cal.App.4” 1273.) “The purpose of the 1986 legislation [enacting Section 1032], which was sponsored by the California Judges Association (CJA), was to streamline the rules and procedures on the award oflitigation costs, which 3 were deemed ‘hard to find and hard to follow.’” (Goodman v. Lozano (2010) 47 Cal.4" 1327, 1335 (citations omitted); see also Wakefield v. Bohlin (2006) 145 Cal.App.4” 963, 996 (dis. Opn. of Mihara, J.) [The “overriding purpose” of the 1986 legislation was to “eliminate confusion.”].) The Senate Committee on Judiciary noted that the purpose of the legislation was “‘to consolidate the relevant law governing recovery of costs and to simplify the present procedure for determining these costs, thereby relieving court congestion and easing judicial workload.’” (Chinn, supra, 166 Cal.App.4" 189.) The ruling in Chinn helped establish a procedural structure for analyzing costs that was consistent with these legislative goals and in line with legislative history. The court in Chinn reviewed the history of costs statutes in California and explainedthat earlier statutes “codified case law interpreting a voluntary dismissal as a judgmentin the defendant’s favor”that entitled the defendant to costs. (Chinn, supra, 166 Cal.App.4" 187.) These earlier statutes provided for an award of costs as a matter of right to a “defendant...as to whom the action is dismissed.” (Chinn, supra, 166 Cal.App.4" at 186, fn. 4.) The Chinn court cited legislative history that stated that the 1986 legislation was not intended to change that rule and explained that “[nJothing in the background materials accompanying the proposed amendment mentioned settlement proceeds or suggested the definition of ‘prevailing party’ in section 1032 would change existing law to permit an award of costs to a plaintiff following a dismissal.” (Chinn, supra, 166 Cal.App.4™ at 190.) The statutory language of Section 1032 is consistent with this conclusion because it expressly provides that a defendant in whose favor a dismissal is entered is a prevailing party as a matter ofright. (Code Civ. Proc. § 1032(a)(4).) The court in Chinn reasoned that allowing the term “net monetary recovery”to include settlement proceeds “would lead to an absurdresult, as both plaintiff and defendants would be entitled to an award of costs as a matter of right”: the settling plaintiff would be entitled to costs as the party with the “net monetary recovery,” and the settling defendant would be entitled to costs as a defendant in whose favor a dismissal was entered. (Chinn, supra, 166 Cal.App. 4" at 188.) The court therefore concluded that “{cJonstruing the term ‘net monetary recovery’ in context, we conclude that the Legislature did not intend to include settlement proceeds received by the plaintiff in exchange for a dismissal in favor of the defendant.” (Chinn, supra, 166 Cal.App.4™ at 188, 190.) In addition to being consistent with legislative history and the statutory language of Section 1032, this ruling created a framework for analyzing costs betweensettling parties thatis simple and straight-forward: Defendants who obtain dismissals are prevailing parties (as expressly indicated in Section 1032) and plaintiffs cannot claim prevailing party status by virtue of receipt of settlement amounts. This rule not only aides in the resolution of costs issues before the courts butit facilitates settlement of cases between parties by creating a clear, concise rule with respect to costs at settlement. Theruling is also consistent with case law. b. The Chinn ruling is_ consistent with numerous court decisions that strictly apply the rule that a defendant who obtains a dismissal is the prevailing party as a matter of right. oe Numerous courts have confirmed that under Section 1032 “a defendant in whose favor a dismissalis entered” is the prevailing party as a matter of right. The ruling in Chinn that the prevailing party is the settling defendant who obtains a dismissal—rather than the plaintiff who obtains a settlement sum—is consistent with this well-established case law. The case law is clear that a defendant in whose favor a dismissal is entered is the prevailing party under Section 1032. This is true regardless of whether the dismissal was voluntary or involuntary', regardless of whether the dismissal was with prejudice or without prejudice”, and, regardless of whether the dismissal comes aboutas part of a settlement.’ In short, the case law leaves no doubt, and makes clearto trial courts and litigants alike, that “[t]he price of a voluntary dismissal is the payment of costs under C.C.P. 1032.” 7 Witkin, Cal. Procedure 6" Ed., 2014 Supp.), Judgment, § 92, p. 73; see also Mon Chong Loong Trading Corp. v. Superior Court (2013) 218 Cal.App.4™ 87, 94 (“[w]hile a lawsuit may be concluded by a voluntary dismissal, the price of such a dismissal is the paymentofcosts under section 1032.”) In strictly applying the rule that a defendant with a dismissal is the prevailing party, courts rely on the clear and unambiguous language of Section 1032. The statute plainly states that “a defendant in whose favor a \Santisas v. Goodin (1998) 17 Cal.4" 599, 606 [defendantentitled to costs under Section 1032after plaintiff voluntarily dismissedaction.] ? Cano v. Glover (2006) 143 Cal.App.4" 326, 331 [“[d]efendantis entitled to costs regardless of whether the dismissal is with or without prejudice.”] 3 Great Western Bank v. Converse Consultants, Inc. (1997) 58 Cal.App.4th 609, 612-614; Crib Retaining Walls, Inc. v. NBS/Lowry, Inc. (1996) 47 Cal.App.4th 886, 890. -10- dismissal is entered” is the prevailing party as a matter of right. (Code. Civ. Proc. 4 1032(a)(4).) This clear language mitigates against exceptions. Asone court explained, courts must be cautious about ‘engrafting exceptions onto the clear language of Code of Civil Procedure section 1032.’ ‘[O]ne should not read into the statute allowing costs a restriction which has not been placed there. ‘In general, a court should not look beyond the plain meaning of a statute when its language is clear and unambiguous, and there is no uncertainty or doubt as to the legislative intent.’ (City of Long Beach v. Stevedoring Services of America (2007) 157 Cal.App.4™ 672, 679-680 (ruling that a cross-defendant is a prevailing party for purposes of costs when the cross-complaint was dismissed as moot) quoting Crib Retaining Walls, supra, 47 Cal.App.4" at 890.) Section 1032 simply and concisely provides that where a dismissal is entered in favor of a defendant, the defendant is the prevailing party as a matter of right. Courts have refused to inject complexity into this clearly stated rule by attaching exceptions to it. And the ruling in Chinn, which provides that a defendant who obtains a dismissal through settlementis the prevailing party, is in line with this large body of case law. c. The Chinn ruling is consistent with the Supreme Court’s ruling in Goodman. The procedural framework created by the Chinn ruling, moreover, was implicitly recognized by the California Supreme Court in Goodman v. Lozano (2010) 47 Cal.4" 1327. In Goodman,the plaintiffs sought joint damages from multiple defendants. The plaintiffs settled with several defendants for $230,000 andat trial obtained a verdict of $146,000 against the remaining defendants. (Goodman, supra, 47 Cal.4" at 1331.) Pursuant to the mandatory provisions of Code of Civil Procedure Section 877, (which are not applicable here), the trial court offset the damage award with the settlement fundsplaintiffs received from the other defendants, resulting -ll- in a judgment of $0. (Goodman, supra, 47 Cal.4 at 1331-1332.) The Supreme Court ruled that the plaintiffs were not entitled to costs under Section 1032 because they did not obtain a “net monetary recovery.” (Goodman, supra, 47 Cal.4" at 1333-1338.) If settlement funds were included in the term “net monetary recovery,” the Goodman plaintiffs would necessarily have beenthe prevailing parties because they obtained settlement funds in an amount of $230,000. Instead, the Court looked to the final judgment alone to determine whether the plaintiff obtained a net monetary recovery. (Goodman, supra, 47 Cal.4" at 1333-1338.) %* * * The holding in Chinn that settlement proceeds fail to qualify as a “net monetary recovery” ensures internal consistency within Section 1032, is consistent with statutory language, case law, andlegislative history, and creates a structure for analyzing costs that is simple, straight-forward, and easy to apply precisely because it is consistent with case law and the statute. The ruling in Chinn should stand. 2. Permitting settlement proceeds to qualify as a “net monetary recovery” would create confusion, lead to disputes over the resolution of costs issues, and would increase the workload of an already overburdened judiciary. Plaintiff argues that settlement sums qualify as a “net monetary recovery” and enablea settling plaintiff to claim costs as a matter of right. Neither the language of Section 1032, nor the case law, support such a finding. Moreover, permitting settlement sums to qualify as a “net monetary recovery” would lead to disputes and confusion because it would mean that both plaintiffs and defendants can claim prevailing party status as a matter ofright when a caseis dismissed as part of a settlement. Such confusion is exactly what the Legislature sought to avoid whenit enacted Section 1032. -12- a. The common meaning of “recovery” is to recover by way of an order orjudgment. Plaintiff contends, and the Court of Appeal agreed, that there is nothing in the language of Section 1032 that requires a trial court to disregard a settlement paymentas a “net monetary recovery.” (Plaintiff s Opening Brief pp. 14-15; see also typed opn. p. 19.) But the term “net monetary recovery” is not as broad as plaintiff claims. The word “recovery” means to recover by way ofan order or judgment—in contrast to a voluntary payment—and thus does not include settlement sums. Again, the decision in Goodman offers guidance. The Court in Goodman pointed out that the legislative goal in enacting the current version of Section 1032 was to eliminate confusion by “streamlining” the rules and procedures on awarding costs. (Goodman, supra, 47 Cal.4" at 1335, 1336.) The Court therefore warned against expanding the meaning of the statute’s unambiguous terms to create “amorphous concepts” contrary to the language of Section 1032. (Goodman, supra, 47 Cal.4" at 1334.) Accordingly, the Court ruled that the term “net monetary recovery” must be given its common meaning and the Court agreed with the underlying appellate court’s finding that “Tal litigant cannot actually recover or ‘gain’ anything without an order or a judgment.” (Goodman, supra, 47 Cal.4™ at 1331, 1333 (emphasis in original).) As the Court indicated, the standard legal definition of the term “recovery”is to recover by way of an order or judgment. (Random House Unabridged Dictionary (2nd Ed. 1993), p. 1613, [“Recovery” is “the obtaining of right to something by verdict or judgmentof a court of law”; Black’s Law Dictionary (10" Ed. 2014), p. 1466, [defining recovery as “[AJn amount awarded in or collected from a judgment or decree”’]; Gebelein v. Irvin (1992) 231 Ill. App. 3d 1011, 1014 [defining “recovery” -13- as ‘‘‘/t]/he restoration orvindication of a right existing in a person, by the formal judgment or decree of a competent court....to have judgment, to obtain a favorable or final judgment, to obtain in any legal manner in contrast to voluntary payment.’”| [emphasis in original]); Holtz v. Waggoner (2007) 377 Ill.App.3d 598, 601 (“the plain and ordinary meaning of recovery require[s] a judgment in one’s favor”); Gallagherv. Manatee County (Fla. App. 2006) 927 So.2d 914, 917 [“Recovery means ‘the obtaining of right to something by verdict or judgment of a court of law”].) A plaintiff who obtains money by settlement does not recover money by order or judgment; a plaintiff who obtains moneybysettlement obtains money through a voluntary agreement with the opposing party. Accordingly, settlement amounts donotfall within the common meaning of the term “net monetary recovery.” Moreover, the language of Section 1032 read as a whole prohibits a finding that “net monetary recovery” includes settlement sums. As explained above, to hold otherwise would mean that Section 1032 permits two opposing parties to a settlement to claim prevailing party status as a matter ofright: the plaintiff as the party with a net monetary recovery and the defendant as a party in whose favor a dismissal was entered. This, as the court in Chinn concluded, would be an “absurd result” and could not have been intended by the Legislature when it enacted Section 1032. (Chinn, supra, 166 Cal.App.4" at 188, 190.) b. The case law does not support a finding that settlement funds qualify as a “net monetary recovery.” There exists, moreover, nothing in the case law that supports a finding that settlement funds qualify as a “net monetary recovery” under Section 1032. -14- Without specific citation, the Court of Appeal stated that though the Supreme Court in Goodman “did not mention Chinn, we believe it implicitly rejected Chinn’s narrow construction of ‘net monetary recovery’ as not including settlement payments.” (Typed opn. p. 19.) But the Court in Goodman never mentioned Chinn because the Court never analyzed whether settlement proceeds standing alone constitute a “net monetary recovery”; rather, the Court analyzed whether settlement offsets affected the determination of whether a party had a “net monetary recovery”attrial. These are two different issues and conflating them leads to contradictory results. Doing so meansthat at the same time the Court in Goodman held that settlement offsets prohibited the plaintiff in that case from being a party with a “net monetary recovery,”the plaintiff could claim, based on the receipt of settlement proceeds, that it was the party with a net monetary recovery. In fact, as explainedabove, far from rejecting the holding in Chinn, the Goodman decision implicitly supports the Chinn holding because it makes clear that Section 1032’s net monetary recovery analysis looks only to the actual monetary value of the recovery itself and does not take into account overall success ofthe plaintiff through settlement. The Court of Appeal also stated that “[uJ]nder the pre-1986 version of section 1032, case law established that a settling party could be awarded costs even if the settlement agreement is silent as to costs.” (Typed opn. pp. 11-12, 19.) But the issue in this case is not whether under certain -15- circumstances a settling party could be awarded costs.’ The issue in this case is whether settlement sums constitute a “net monetary recovery”for purposes of Section 1032. And on thatissue, there exists no pre-1986 case law that supports plaintiff's position. In fact, as the Court in Goodman explained, “the meaning of ‘net monetary recovery’ (§ 1032(a)(4)) is not controlled by those cases construing the prior version of section 1032” because the term “net monetary recovery” was not used in Section 1032 prior to 1986. (Goodman, supra, 47 Cal.4" at 1337.) Other cases relied on by plaintiff and the Court of Appeal are inapplicable. Plaintiff claims that the decision in Rappeneckerv. Sea-Land Service, Inc. (1979) 93 Cal.App.3d 256 supports the position that settlement sums can qualify as a net monetary recovery. (Plaintiff's Opening Briefat p. 27; see also Typed opn. p. 19.) But Rappenecker involved the permissibility of allowing costs after a plaintiff accepted a Section 998 offer by a defendant to allow judgment to be taken. The court in that case held that the resulting judgment could result in a costs award to the plaintiff. (Rappenecker, supra, 93 Cal.App.3d at 263.) Nothing about this ruling is contrary to Chinn because nothing in Chinn prohibits a plaintiff from obtaining costs after obtaining a favorable judgment. In Chinn, the plaintiff never obtained a judgment; to the contrary, in Chinn, the plaintiff agreed to voluntarily dismiss her claim. (Chinn, supra, 166 Cal.App.4™ at ‘The Court in Goodman indicated that a settling party might be awarded costs pursuantto a trial court’s discretion and as long as no party fits into one of the mandatory categories ofprevailing party. (Goodman, supra, 47 Cal.4" at 1338, fn. 4.) Significantly, this provides further support for the position that settlement sums do not equate to a net monetary recovery. If settlement sums did qualify as a net monetary recovery, then the settling party would be entitled to costs as a matter of right under Section 1032. Instead, the Court indicated that a settling party is not entitled to costs as a matter of right, and that such a party would only be entitled to costs pursuant to the trial court’s discretion—andonly if no other party fell into one of the mandatory categories of prevailing party. (Goodman, supra, 47 Cal.4™ at 1338,fn. 4.) -16- 181.) Folsom v. Butte County Assn. ofGovernments (1982) 32 Cal.3d 668, another case relied on by plaintiff and the Court of Appeal, is also inapplicable. In Folsom, the plaintiffs sought declaratory and injunctive relief against Butte County relating to allocations of transportation funds. (Folsom v. Butte County Assn. ofGovernments (1982) 32 Cal.3d 668. 671.) The parties resolved the case, but the settlement did not involve a monetary payment;instead,it involved injunctive relief, which requiredthetrial court to retain jurisdiction so that no dismissal was filed at the time costs were awarded. (Folsom, supra, 32 Cal.3d at 674-675.) Folsom therefore offers no guidance on the question of whether the receipt of settlement sums equate to a “net monetary recovery” for purposesof Section 1032. c. Permitting settlement sums to qualify as a “net monetary recovery”will lead to disputes and is contrary to the legislative goal of simplifying costs procedures. Permitting settlement sums to equate to a “net monetary recovery” under Section 1032, is also contrary to the legislative goal of simplifying costs procedures. By enacting Section 1032, the Legislature sought simplicity; it sought to “streamline” the rules and procedures on costs awards and “thereby reliev[e] court congestion andeas[e] judicial workload.” (Chinn, supra, 166 Cal.App.4" 189.) Permitting settlement proceeds to qualify as a net monetary recovery would have the opposite effect. Permitting settlement proceedsto qualify as a net monetary recovery means that both plaintiffs and defendants can claim prevailing party status as a matter of right when a case is dismissed as part of a settlement. This conflict will lead to disputes over costs that will need to be resolved bythe courts. And the resolution of these disputes will lead to additional layers of complexity -17- as courts attempt to determine whothe prevailing party is in circumstances where the case law and the statute permit two prevailing parties as a matter ofright.° The Court of Appeal’s rule that settlement proceeds qualify as net monetary recovery is also difficult to apply. In reaching its conclusion, the Court of Appeal distinguishedbetween settlements “accomplished through legal process” and other settlements. (Typed opn. p. 16.) The Court of - Appeal found that in this case the settlement was obtained through legal process, and therefore amounted to a “recovery” for purposes of Section 1032, because it wasstipulated to “orally before the court.” (Typed opn.p. 16.) As explained above, this definition of the terms “to gain by legal process” and “recovery” conflicts with the standard legal definition of these terms, whichrefer to ‘“/t/he restoration or vindication of a right existing in a person, by the formal judgment or decree of a competentcourt... in contrast to voluntary payment.’” (Gebelein, supra, 231 Ill. App. 3d at 1014 (emphasis in original); Goodman, supra, 47 Cal.4" at 1331.) Additionally, > In the instant case, for example, to find that there wasonly oneprevailing party, the Court of Appeal created additional areas of decisional conflict. The Court of Appeal foundthat even though the Hospital obtained a judgmentinits favor that denied plaintiff any relief, it was not a defendant in whose favor a dismissal was entered pursuant to Section 1032 because the trial court never entered a “judgment expressly dismissing the action.” (Typed opn.at p. 20) But this ruling conflicts with existing case law, which holds that a judgmentneed notbe labeled a “dismissal” in order to have the effect of a dismissal. (Schisler v. Mitchell (1959) 174 Cal.App.2d 27, 28-29 (ruling that “[a] judgmentofdismissal... is one terminating a case withouta trial of the issues of fact involved” and courts need not exalt form over substance in determining whether a judgment equates to a dismissal.)) The Court of Appeal also held that the Hospital could not be a prevailing party as a defendant where the plaintiff obtained no relief because,it held, the receipt of settlement proceeds constituted “relief? for purposes of Section 1032. (Typed opn. p. 26) But underexisting case law, the term “relief” as it is used in Section 1032 refers to “assistance, redress or benefit from the court” rather than sums received voluntarily through settlement. (Childers v. Edwards (1996) 48 Cal.App.4™ 1544, 1549 [emphasis added].) -18- becausesettlements accomplished “orally before the court” maystill result in a defendant obtaining a dismissal, distinguishing between settlements accomplished orally before a court and those that are not, does nothing to eliminate the “absurd result” of two opposing parties to a settlement claimingprevailing party status as a matter ofright. The Court of Appeal’s definition of “net monetary recovery,” moreover, creates an additional issue that will need to be analyzed and resolved by courts andlitigating parties. The Court of Appeal’s definition of “net monetary recovery” will lead to disputes regarding whether settlements obtained in other contexts—such as during mandatory settlement conferences, or through judicial mediation programs,or after a civil complaint is filed—are settlements “accomplished through legal process” and therefore need to be placed in a category separate from othersettlements for purposes of determining costs. The “overriding purpose” of the legislation implementing Section 1032 was to “eliminate confusion”®; permitting settlement proceeds to qualify as a “net monetary recovery” will sow confusion. Neither the language of Section 1032, nor the case law, nor legislative intent, nor legislative history, support a finding that settlement sums should be included within the term “net monetary recovery.” Vv. CONCLUSION Section 1032 was enacted in 1986 “‘to simplify the ... procedure for determining ... costs, thereby relieving court congestion and easing judicial workload.’” (Chinn, supra, 166 Cal.App.4" at 189.) By ruling that settlement proceeds do not qualify as a net monetary recovery, the Chinn ruling ensured that a procedural framework for determining costs awards was in place that was consistent with the statute, case law, and the legislative goal of simplifying costs procedures. The Court of Appeal’s ° Wakefield, supra, 145 Cal.App.4" at 996 (dis. Opn. of Mihara, J.) -19- opinion in this case provides the basis for two parties to a settlement to assert prevailing party status as a matter ofright. This will complicate the resolution of costs matters in the courts as well as between parties seeking to settle cases. And the disputes generated by this conflict will further burden an already overburdened court system. For these reasons, and for the reasons presented in the appellate briefs and Petition for Review, the Hospital respectfully requests the Court uphold the Chinn ruling andfind that settlement proceeds do not qualify as a net monetary recovery under Section 1032. Dated: August 22, 2014 FENTON & C7 By: ChristopherE. Panetta, Esq. Attorneys for Defendant / Respondent/ Petitioner COMMUNITY HOSPITAL » OF THE MONTEREY PENINSULA - 20 - CERTIFICATION RE WORD COUNT I, Christopher E. Panetta, hereby certify pursuant to Rule of Court 8.504(d)(1) that the number of words containedin this Petition for Review is 6,097 words. Dated: August 22, 2014 FENTON & By: Christopher E. Panetta, Esq. Attorneys for Defendant / Respondent/ Petitioner COMMUNITY HOSPITAL OF THE MONTEREY PENINSULA COPY CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT MAUREEN DESAULLES, H038184 (Monterey County Plaintiff and Appellant, Super. Ct. No. M85528) V. Court of Appeal - Sixth App. Dist. COMMUNITY HOSPITAL OF THE MONTEREYPENINSULA, MAY ~ 2 2014 Defendant and Respondent. MICHAEL J. YERLY, Clerk By DEPUTY I, INTRODUCTION Dismissal ofa civil complaint is said to be voluntary when requested by the plaintiff and involuntary when ordered by the court. A dismissal may be partial, as in this case, whereplaintiffMaureen deSaulles (Employee) agreed to dismiss two ofher seven causes ofaction with prejudice in exchange for a payment of $23,500 from defendant Community Hospital ofthe Monterey Peninsula (Employer). A civil judgment may also be described as voluntary when entered bystipulation or involuntary when entered by the court after either a judicial decision or a jury verdict. . When an action endsin any ofthese ways, if the parties have not otherwise agreed on whowill pay the costs oflitigation, one party may be deemed the prevailing party entitled to mandatory costs. In this appeal by Employeechallenging a costs award to Employer, both sides claim entitlement to mandatory costs. Mandatory costs are governed by Code of Civil Procedure section 1032." A s revised in 1986 (Stats. 1986, ch. 377, §§ 5,6,p. 1578), section 1032 states: “(b) Ex cept as otherwise expressly providedby statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.” Section 1032, subdivision (a)( 4) (subdivision (a)(4)) provides a nonexclusive definition of “ ‘prevailing party,’ ”li sting four categories. Three ofthe categories apply only to defendants, namely “a defend antin whose favor a dismissal is entered, a defendant whereneither plaintiffnor de fendant obtains any relief, and a defendantas against those plaintiffs who do not reco ver any relief against that defendant.” (Subd. (a)(4).) Only one category — “th e party with a net monetary recovery” — is applicable to both defendants andplaintiffs. Employee characterizes Employer’s settlement payment to her as a net mone tary recovery, while Employer says that settlement payments must be disregarde d under Chinn v. KMR Property Management(2008) 166 Cal.App.4th 175 (Chinn). W ithout separately appealing, Employer contends thatit is a defendant in whose fav or a dismissal wasentered, and also contendsthat, as the judgment provides that Employee “ recover nothing,”it is a defendant against whom Employee recovered norelief. Thetrial court awarded costs of $12,731.92 to Employer in the exercise ofits : discretion, as a trial court may do whencosts are not mandatory. “When a ny party . recovers other than monetary relief and in situations other than as specified, th e ‘prevailing party’ shall be as determined bythe court, and under those circu mstaiices, the court, in its discretion, may allow costs or not... .” (Subd. (a)(4).) . This appeal requires us to determine whether either party was entitled t o mandatory costs. Aswe will explain, the case ended in three stages withouta trial on the merits. Employer did not obtain a favorable dismissal of the action, but did obtain a 1 Unspecified section referencesare to the Code of Civil Procedure. judgment denying Employeerelief. However, Employer obtained the judgment by making a settlement paymentthat can be considered a net monetary recovery by Employee. As section 1032 does not contemplate both sides prevailing, the trial court exercised discretion in awarding costs. Wewill reverse the order awarding costs to Employer and denying costs to Employee, determiningthat, since the parties’ settlement wassilent regarding costs, Employer’s payment of $23,500 triggered mandatory costs as a “net monetary recovery” under the plain languageofthestatute. lil. PROCEDURAL HISTORY A. PREJUDGMENT PROCEEDINGS Employee was hired in February 2005 as a part-time patient business services registrar. Employee began complaining about her work shift assignments to the - emergency room in June 2005. Employer placed Employee on a leave of absen ce in January 2006 and terminated her employment in July 2006. In July 2007, Employeefiled a complaint alleging that Employer had: (1) failed to accommodate Employee’s physical disability or medical condition (susceptibility to infection as a result of cancer); (2) retaliated against Employeefor exercising her rights under California’s Fair Employment and Housing Act; (3) breached implicit conditions of an employment contract; (4) breached an implied covenant of good faith and fair dealing; (5) negligently and (6) intentionally inflicted emotional distress; and (7) wrongfully terminated Employee in violation of public policy. On August 1, 2008, the trial court entered a nine-page order ruling on Employer’s alternative motions for summary judgment or summary adjudication. The court denied summary judgment, but granted Employer’s motion for summary adjudication of the fir st cause ofaction alleging a failure to accommodate. Thetrial court found triable factual issues as to the remaining causesof action and denied summary adjudication ofthose claims. Based on the summary adjudication, Employerfiled several in limine motions. After hearing argument on September 2, 2008,thetrial court orally granted motio ns in limine numbered1, 8, and 11, specifically precluding argument by Employ ee “that [Employer] failed to accommodate [Employee’s] disability or to engage the interacti ve process or that [Employee] was harassed, discriminated or retaliated against in connection[] with any claimsoffailure to accommodateor failure to engage the interactive process,” or “regarding [Employee’s] safety complaints,retaliation o n union issues ... ? and excluding “evidence ofdiscriminationorfailure to accomm odate or retaliation claims against [Employer] based onfailure to accommodate or engage in the interactive process or make complaints about failure to accommodate or engag e in the interactive process.” . At the conclusion ofthose rulings and before a jury panel was called, the par ties placed the following settlement on the record: “[Ijn consideration for dismiss al with prejudice ofthe two claimsofbreach of contract and breach of covenant, Defend antwill pay Plaintiff within 10 days $23,500.” Defense counsel“will prepare a jud gmenton the remaining claims which references the dismissal with prejudice and which preservesthe right of appealofthe rulingsofthis court on the remaining causes of action .. . .” “[Tjhe parties will notfile any motions or memorandaforcosts or attorney fees[,] hol ding off " until the completion ofthe appeal ... .” _ B. THE JUDGMENT AND PosT-JUDGMENT CosTs CLAIMS _ On October 6, 2008, pursuantto the settlement, Employee filed a reque st for dismissal with prejudice ofthe breach of contract and breach of covenant cla ims. On January 6, 2009,the trial courtentered an amended judgment which stated: “Having considered the arguments, oral and written, of all the parties, the records andfile herein, and the pre-trial motions and oppositions thereto filed herein, and having gran ted defendant’s Motion in Limine No.1 to Preclude Any Argument That Defendant Failed to AccommodatePlaintiffs Disability or to Engage in the Interactive Process, or That PlaintiffWas Harassed, Discriminated or Retaliated Against in Connection Therewith, the Court findsthat plaintiffwill be unable to introduce any evidence that would establish plaintiff's second cause ofaction forretaliation,her fifth and sixth causes of action for intentional and negligent infliction of emotional distress, or her seventh cause of action for wrongful termination in violation ofpublic policy; and, [{] The Court having previously granted summary adjudication of Plaintiff's first cause of action for failure to accommodate; and, [{] The parties having settled plaintiff's third cause of action for breach of implied in fact contract and fourth cause[] of action for breach ofthe covenant of good faith and fair dealing, IT IS HEREBY ADJUDGEDthat, [{] 1. Plaintiffrecover nothing from defendant; and [{] 2. TheParties shall defer seeking any recovery of costs and fees on this Judgment comingfinalafter the time forall appeals.” Employeefiled an appeal from the amended judgment, and this court affirmed the judgmentin an unpublished opinionfiled on June 29, 20112 After this court issued a remittitur, Employer filed a memorandum in thetrial court seeking costs of $11,918.87. Employee filed a memorandum seeking costs of $14,839.71 and a motion to strike Employer’s memorandum,asserting that Employer was not the prevailing party. Employer responded with a motion to strike Employee’s memorandum,asserting that Employee wasnot the prevailing party. Each side filed opposition to the other’s motion to tax costs. After a hearing,the trial court stated, “The Court believesit can exercise its discretion in determining whichparty did prevail, and because [Employer] prevailed on significant causes of action and thereafter enteredinto a settlement on the remaining 2 On our own motion we have taken judicial notice ofthe record in the previous appeal. (DeSaulles v. Community Hospital ofthe Monterey Peninsula (June 29, 2011, H033906) [nonpub.opn.].) costs, the Court finds that [Employer] is the prevailing party.” Thetrial court awarded Employer costs of $12,731.92, which added $813.05 to the amount sought in Employer’s memorandum forcosts ofthe first appeal. The trial court denied Employee’s request for costs. I. STATUTORY SCHEME The California Supreme Court has summarized the statutory scheme for awarding costs to the prevailing party. “Unless otherwise provided by statute, a ‘prevailing party’ is entitled to recover costs in any action or proceeding ‘as a matter ofright.’ (§ 1032, subd. (b); § 1033.5, subd. (a)(10)(A)-(C) [allowable costs under § 1032 include attorney fees authorized by contract, statute, or law].) ‘Prevailing party’ for purposes of sectio n 1032(a)(4) is defined as including: ‘[1] the party with a net monetary recovery, [2] a defendant in whose favor a dismissal is entered, [3] a defendant where neitherplainti ff nor defendantobtains anyrelief, and [4] a defendant as against those plaintiffs who do not recoveranyreliefagainst that defendant.’ Ifa party recovers anything other than monetary relief-and in situations not specified above,a trial court shall determineth e prevailing party anduseits discretion to determine the amount and allocation of costs, if any. (Ibid.; Michell v. Olick (1996) 49 Cal.App.4th 1194, 1198 [prevailing party is - ‘entitled to costs as a matter ofright; thetrial court has no discretion to order each party to bear his or her own costs’].)” (Goodmanv. Lozano (2010) 47 Cal.4th 1327, 1333 (Goodman).)* | 3 Thetrial court did notstate it was exercising its discretion under Chinn,as Employee claimed atoral argument. 4 Section 1032 states: “(a) As used in this section, unless the context clearly requires otherwise: [{] (1) ‘Complaint’ includes a cross-complaint. [{] (2) ‘Defendant’ includes a cross-defendantor a person against whom a complaintisfiled. [{] (3) ‘Plaintiff’ includes a cross-complainantor a party whofiles a complaintin intervention. [{] (4) ‘Prevailing party’ includesthe party with a net monetary recovery, a defendant in whose favor a dismissal is entered, a defendant whereneither plaintiff nor (Continued) Theparties agree that underthe currentstatute,a trial court has no discretion to deny costs completely when an award is mandatory, though it may exercise discretion over the amount awarded. (Acosta v. SI Corp. (2005) 129 Cal.App.4th 1370, 1375-1376; Michell y. Olick, supra, 49 Cal.App.4th 1194, 1197-1198; see Goodman, supra, 47 Cal. Ath 1327, 1338, fn. 4; Lincoln v. Schurgin (1995) 39 Cal.App.4th 100, 105 [costs discretionary when no party qualifies for mandatory award].) Accordingly, in ruling on a request for costs a trial court must determine whether an award is mandatory based on one andonly one party “prevailing” accordingto a statutory definition. IV. APPEALABILITY “[S]ince the question of appealability goes to our jurisdiction, we are dutyboundto consider it on our own motion.” (Olson v. Cory (1983) 35 Cal.3d 390, 398; Nguyen v. Calhoun (2003) 105 Cal-App.4th 428, 436 (Nguyen).) Section 904.1, subdivision (a)(1) provides that a judgment is appealable if it is not an interlocutory judgment. Subdivision (a)(2) providesthat “an order madeafter a judgment made appealable by paragraph (1)”is appealable. Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644 (Lakin) explained at page 651, “Despite the inclusive language of Code of Civil Procedure section 904.1, subdivision (b), not every postjudgmentorder that follows a final appealable judgment is defendant obtains any relief, and a defendant as againstthoseplaintiffs wh o do not recoveranyrelief against that defendant. When any party recovers other than mon etary relief and in situations other than as specified, the ‘prevailing party’ shall be as determined bythe court, and under those circumstances, the court, in its dis cretion, may allow costs or not and, if allowed may apportion costs between the parties on the same or adverse sides pursuantto rules adopted under Section 1034. [{] (b) Except as othe rwise expressly providedby statute, a prevailing party is entitled as a matter ofright to re cover costs in any action or proceeding. [{] (c) Nothing in this section shall prohib it parties from stipulating to alternative procedures for awarding costsin the litigation pursuant to rules adopted under Section 1034.” appealable. To be appealable, a postjudgmentorder must satisfy two additional requirements.” (Fn. omitted.) Onerequirement“is that the i ssues raised by the appeal from the order must be different from those arising from an ap pealfrom the judgment.” (Lakin, supra, at p. 651.) The other requirementis the postju dgmentorder must “affect the judgmentorrelate to its enforcement.” (Id. at p. 654.) T he court explained that an “order denying attorney fees is not preliminary to future proc eedings and will not become subject to appeal after a future judgment. Rather, it resemb les the orders we have held appealable. It affects the judgmentor relates to its enforc ementin thatit finally determinestherights ofthe parties arising from the judgmen t.” (Jbid.) In finding the © order before it appealable, Lakins found support in cases th at had “expressly or impliedly held appealable similar postjudgment orders concerning cos ts, interest, and attorney fees,” including Norman I. Krug RealEstate Investments, I nc. v. Praszker (1990) 220 Cal.App.3d 35 (Praszker). (Lakins, supra,at p. 654.) The court in Praszkerflatly stated, “A postjudgment order which awardsor denies costs or attorney’s fees is separately appealable.” (Praszker, supra, at p. 46.) In Nguyen, supra, at page 436, this court stated, “Under the ‘o ne final judgment’ rule, an order or judgmentthat fails to dispose of all claims between thelitigants is not appealable under Code ofCivil Procedure section 904.1, su bdivision (a). ‘[A]n appeal cannotbe taken from a judgmentthatfails to complete the disp osition ofall the causes of action between the parties even ifthe causes of action dispose d ofby the judgment have been ordered tobetried: separately, or may be characterized a s. “separate and independent” from those remaining.’ (Morehart v. County ofSanta Barbara (1994) 7 Cal.4th 725, 743 ....)” | Werequested supplemental briefing discussing the applicabil ity ofthe final judgmentrule and the decision in City ofGardena v. Rikuo Corp. (2011) 192 Cal.App.4th 595 (Rikuo Corp.). Rikuo Corp. discussed t he requirementthat a final judgment must completely dispose ofthe matter in controversy. The judgmentin that 8 case appearedto do so,as “the consentjudgmentexpressl y provide[d] that it was intended to resolve all ofthe issues in controversy bet ween the parties, including the mannerin which disputes overthe cost of remediation would be resolved.” (Jd. at p. 603.) In settling an eminent domain case,the parties agree d that thetrial court retained jurisdiction to apportion expenses of remediating contamin ated property. (/d at pp. 598-599.) The property owner Jater filed an appeal from a partial determination of expenses. The appellate court determined that the order was not appealable as a postjudgment order. A postjudgmentorderis appealable whenit follows a judgment made appealable under section 904.1, subdivision (a)( 1). (Ud. at p. 601.) However,the judgmentwas a consent judgment that was not appealable . (/d. at pp. 600-601.) The appellate court concluded, alternatively, that even if the judgment was appealable becauseit left open an unsettled issue ofremedi ation expensesfor the court to determine, then the challenged order was not appealab le because the judgment was not yet final. “[E]ven after entry of those orders, there were is sues remaining between the parties concerning further costs of remediation andthe enti tlementto the remainderofthe deposit.” (Id. at p. 602.) Employer argues that Employee seeks recognition as preva iling on her contract claims, which were resolved by settlement. Because Emplo yee consented to dismiss these two causes ofaction, “no appeallies from a costs awa rd based on a nonappealable consent judgment.” Employer contends that in settling her c ontract claims, Employee “settled all issues, including costs issues, concerning tho se claims.” Employee points out that Rikuo Corp. was distinguished b y Ruiz v. California State Automobile Association Inter-Insurance Bureau (201 3) 222 Cal.App.4th 596 (Ruiz) because the settlement agreement in Ruiz did not dispose ofa ll issues, but “expressly left open theamounts ofthe attorney fees and incentive paym ent, and provided that those amounts wouldbeset by the trial court, up to a specified ma ximum.” (Id. at p. 606.) Ruiz concluded that Rikuo Corp. wasdistinguishable “where the Agreement expressly 9 contemplated further court proceedings and a separate ruling on the attorney fee and incentive paymentissues ... .” ([bid.) We concludethatour situation is like Ruiz and not Rikuo Corp. Employee agreed to dismiss her remaining twocontract claims in exchange for a settlemen t paymentin orderto facilitate an appeal ofthe court’s rulings on her remaining claim s. The settlementdid not dispose ofall ofEmployee’s claims. The settlement further contemplated presentation ofclaims for costs and fees to the trial cour t upon conclusion of the earlier appeal. We properly treated the original judgmentas appealable and the later order on competing costs claimsis also appealable. Vv. ANALYSIS Whena costs award or the amount ofcosts is not mandatory but discreti onary, the awardis reviewed for an abuse of discretion. However, wheth er the undisputed facts mandate a costs award is a question oflaw for de novo review. (Go odman, supra, A7 Cal.4th 1327, 1332; Kim v. Euromotors West/The Auto Gallery (2007) 149 Cal.App.4th 170, 176.) Asboth sides claim entitlement to mandatory costs, we first con sider whether the facts ofthe case fit squarely into any ofthe statutory definitions of “ prevailing party.” A. EMPLOYEE’S ENTITLEMENT TO MANDATORY COSTS Employee argues on appeal that she is due mandatory costs because Emp loyer’s settlement payment of $23,500 qualifies as a “net monetary recover y.” " 1. DOES A PARTY PREVAIL WHEN AN ACTION IS SET TLED? Nothing in section 1032 indicates that there can be no prevailing par ty when an action has been dismissed or a judgment entered based on full or p artial settlement. Section 1032 has noprovisionlike that in Civil Code section 1717, subdivision (b)(2), concerning an award ofattorney fees provided for by contract: “Wh ere an action has 10 been voluntarily dismissed or dismissed pursuant to a settlement of the case, there shall be noprevailing party for purposesofthis section.”*® Underthe pre-1986 version of section 1032, case law established that a settling party could be awarded costs evenifthe settlement agreementis silent as to costs. The leading case is Rappenecker v. Sea-LandService, Ine. (1979) 93 Cal.App.3d 256 (Rappenecker), which concluded that plaintiffs could be awarded costs after obtain ing compromise judgments undersection 998.° Theappellate court reasoned that a compromise judgmentstill qualified as a judgment under former section 1032. (Rappenecker, supra, at pp. 263-264.) In Folsom v. Butte County Assn. ofGovernments (1982) 32 Cal.3d 668 (Folsom), the central question was whethera settlement agreement operated “as a merger and bar of all preexisting claims, depriving thetrial court ofjurisdiction to award costs and st atutory attorney fees. (Code Civ. Proc., §§ 1032, 1021.5.)” (Folsom, supra, at p. 671; 5 Subdivision (b)(2), added to Civil Code section 1717 in 1981 (Stats. 1981, ch. 888, § 1, p. 3399; Santisas v. Goodin (1998) 17 Cal.4th 599, 614), “cod ified the holding ofInternationalIndustries, Inc.v. Olen [(1978)] 21 Cal.3d 218 [Olen] .” (Hsu v. Abbara (1995) 9 Cal.4th 863, 873.) Olen, supra, 21 Cal.3d 218 rejected “any rule that permits a defendant to automatically recover fees whenthe plaintiff h as voluntarily dismissed beforetrial” because there can be diverse reasons for a dism issal. (Id, at p. 224.) “Although a plaintiff may voluntarily dismiss before trial because he learns that his action is without merit, obviously other reasons may exist causing him to terminate the action. For example, the defendant may grantplaintiff— short oftrial — all or substantially all relief sought, or the plaintiffmay learn the defendantis insolve nt, rendering any judgment hollow ... . Moreover, permitting recovery of attorney f ees by defendantin all cases ofvoluntary dismissal before trial would encourage plainti ffs to maintain pointless litigation in moot cases or against insolvent defendants to avo id liability for those fees.” ([bid.) 6 The Legislature has madespecial provisions in section 998 to encourage settlement by restricting costs recovery when an offer of compromise is unreasonab ly rejected. Section 998 authorizes the making of a settlement offer by either side a nd provides consequencesfor the rejection of such an offer. 1] fn. omitted.) Citing Rappenecker, Folsom stated that “costs are allowed, absent the parties’ express agreement to the contrary, following entry of a consent decree.” (Id. at p. 677.) “Therefore, absent affirmative agreementofthe parties to the contrary, the trial court retains jurisdiction after the filing of a compromise agreemen tto entertain a cost bill.” (Id. at p. 679.) While these cases establish that costs can be awarded after a settl ementthat is silent about costs, nothing in these cases discusses whether such costs are mandatory or discretionary. Cases after the 1986 revision of section 1032 d o not resolve whether a settlementpaymentqualifies as a “net monetary recovery”for purposes of a mandatory award. | Section 1032, subdivision (c) authorizes parties to maketheir o wn agreements regarding the responsibility for costs. By negative implication , when there is no agreement on this topic, the other provisions ofsection 1032 for a costs award apply. 2. Is “NET MONETARY RECOVERY” LIMITED TO RE COVERY BY JUDGMENT? The “net monetary recovery” definition ofprevailing party w as addedin the 1986 revision of section 1032. “[FJormer section 1032 provided that costs are allowed for either aplaintiff or a defendant “upona judgmentin his favor’ in v arious specified - actions and, in other actions not specified,the trial cour t might award costsin its discretion. (Former § 1032, subds.(a}(c), as amended by Stats. 1957 , ch. 1172, § 1, 4 7 In Folsom, supra,32 Cal.3d 668;the settlement agreement did not require a paymentfrom the defendants to the plaintiff. Instead, itrequired government agencies “to establish fourtransit systems.” (Id. at p. 671.) Folsom d id determine that a party could be regardedas “successful” and entitled to attorney fee s undersection 1021.5 (private attorney general theory) for enforcing an important p ublic right by way of settlement. (Jd. at pp. 681-687.) However, it is established th at the test fora “‘successful party’” undersection 1021.5 differs from the definition ofa “ ‘ prevailing party’” in section 1032. (Ventas Finance I, LLC v. California Franchise Tax Bd. (2008) 165 Cal.App.4th 1207, 1234.) 12 p. 2464.)”. (Goodman, supra, 47 Cal.4th 1327, 1335.) Although the formerstatute did not expressly require a calculation ofthe net monetary recovery, case law has long required assessing the “netresult of the judgment” when a plaintiff and a defendant have each recovered on claims against the other. Shelley v. Hart (1931) 112 Cal.App. 231 (Shelley) was the leading case holding that the defendant was entitled to an award of costs when“[t}he net result of the judgment” was“favorable to the defendant.” (Id. at p. 243.) In Shelley, the plaintiff sued for breach of contract because a truck he purchased did not perform as promised, and the defendantcross-complained for nonpaymentofthe purchase price. (Id. at pp. 237-23 8.) Theplaintiffwas awarded $1,500, while the defendant was awarded $2,500, yie lding a net of $1,000 to the defendant, who was awarded costs on that basis. Ud. at p. 243,)8 Does“net monetary recovery” include amounts received through settlement? We have found no definitive authority, but we do find guidance in Goodman, supra, 47 Cal.4th 1327, which interpreted the 1986 amendmentofsection 1032 to determi ne the continued viability of this court’s decision in Wakefield v. Bohlin (2006) 145 Cal.App.4th 963 (Wakefield), in which a plaintiffwho obtained a trial award was regarded as prevailing, even though the trial award was effectively reduced to zero dueto offsetting settlement payments from other defendants. In Goodman, home buyers s ued for construction defects and eventually obtained a trial award of $146,000 against the sellers, but a zero net judgment due to $230,000 settlements received from the home 8 The net result ofthe judgment test was extended to whereneither side prevaile d attrial in Gerstein v. Smirl (1945) 70 Cal.App.2d 238, 240-241,and that opinion was quoted with approval by Schraderv. Neville (1949) 34 Cal.2d 112, 115. McLarand , Vasquez & Partners, Inc. v. Downey Savings & Loan Assn. (1991) 231 Cal.App. 3d 1450 reviewedthe legislative history of the 1986 revision of section 1032 and found n o legislative intent to overturn Schrader or to change existing law. (Vasquez, supr a, at p. 1455.) 13 builder and other defendants being credited against the tri al award. The trial court concludedthat the home sellers were prevailing parties ent itled to fees and costs. (Goodman, supra, at p. 1331.) The Court ofAppeal agreed, as did the Supreme Court. In expressly disapproving ofthe majority opinion in Wakefiel d, the high court reasoned: “‘The common meaning ofthe word “net”is “fre e from all charges or deductions”or“to get possession of: GAIN [sic].” (Merria m-Webster’s Collegiate Dict. (10th ed. 1993) p. 780 (Webster ’s).) The word “monetary” obviously means “relating to money.” (Webster's, at p. 750.) The word “recover” means “to gain by legal process” or “to obtain a final legal judgmentin one’s favor.” (Webster ’s, at p.977.) Thus the common meaningofthe phrase “the party with a net mone tary recovery”is the party who gains money that is “free from ... all deductions.” [§] A plaintiffwho obtains a verdict against a defendantthatis offset to zero by settlements wit h other defendants does not gain any moneyfree from deductions. Such a plaintiffgains nothing because the deductions reduce the verdict to zero.’ (Wakefield, supra, 145 Cal.App.4th 963, 992 (dis. opn. ofMihara,J.).)” (Goodman, supra, 47 Cal.4th 1327, 1333-1334.) “The court notedthat this interpretation is consistent with s ection 877. “Under section 877, subdivision(a),a plaintiff's settlement with a defendantserves to ‘reduce the claims against’ the remaining codefendants. (§ 877, subd .(a), italics added; [citation].) ... Thus, anyreduction for prior settlements is made before the entry of judgment. [Citation] ... Accordingly, when a plaintiff' s prior settlement.is mote than the award receivedattrial, the plaintiffultimately recover s nothing. [Citation.] In other words, the net recovery is zero.” (Goodman,supra, 47 Ca l.4th at pp. 1334-1335;fn. omitted.) Goodman considered the legislative history of the 1986 re vision and reasonedthat the replacement ofthe phrase “judgmentin his favor” w ith “the party with a net monetary recovery” was intendedto reject the results of Ferraro v. Southern Cal. Gas Co. (1980) 102 Cal.App.3d 33 (Ferraro) and Syverson v. Heitmann ( 1985) 171 Cal.App.3d 106 14 (Syverson). (Goodman, supra, 47 Cal.4th 1327, 1335-1337.) Goodman pointed outthat the history “did not refer to the definition of a ‘prevailing party.’ The legis lative history reveals instead that at the time current section 1032 was reenacted, the ‘exist ing statutes - d{id] not fully explain the conceptofthe “prevailingparty,”’ and that a ‘c omprehensive definition’ was necessary to ‘further eliminate confusion.’ (Rep. on Sen.Bil l No. 654, supra, at pp. 1, 3.)” (Goodman, supra, 47 Cal.4th at p. 1336.) “ [W]hile section 1032’s legislative history does not specifically address the precise quest ion beforeus,it is nonetheless consistent with the conclusionthat the meaningof ‘net mo netary recovery’ (§ 1032(a)(4)) is not controlled by those cases construing the prior ver sion of section 1032.” (Id. at p. 1337; fn. omitted.) _ The conclusion of Goodman wasthatthe plaintiffwas not entitled to costs as a matterofright, not that an award of costs to the plaintiffwas precludedby thestatute. “Our holding today is simply that a plaintiffwhose damage award is off set to zero by a prior settlement does not categorically qualify as a prevailing party (‘the party with a net monetary recovery’) as a matter of law.” (Goodman, supra, 47 Cal.4 th 1327, 1338, fn. 4.) Goodmantreated a settlement payment as an offset against a mo netary recovery in 9 Ferraro had heldthat a plaintiffmay obtain a favorable judgment aga inst a nonsetttling defendant for costs purposes even though the final judgment is reducedto zero by virtue of offsetting payments by settling defendants. In that case, a judgment of zero dollars in damages wasentered following a jury verdict of $9 1,081.12 in the plaintiffs’ favor due to deductionsfor previoussettlements. (Fer raro, supra, 102 Cal.App.3d at p. 37.) As against the nonsettling defendant, the pla intiffs “certainly werethe prevailing party in the lawsuit and the fact that the Gas Comp any did not haveto actually pay them any damages was duenotto any deficiency in their c ase, but due to circumstances not directly stemming from the issues regardingliability as litigated betweentheparties.” (Jd. at p. 52.) Ferraro was followed by Syverson, in whichthe court agreed with the pl aintiff “that, while he will not recover damages from defendant, he receive d a favorable verdict with respectto liability, entitling him to costs.” (Syverson, supra, 171 Cal.App.3d at p. 112.) 15 a judgment, but did not discuss whether the paymentitself qualified the plaintiff as a prevailing party against the settling defendants. Our facts present legal issues not discussed in Goodman, buti ts analysis of the phrase “net monetary recovery” is nevertheless helpful. Th e court’s interpretation is broad enoughto include obtainingan amount ofmoneyeith er by a favorable judgmentor otherwise by legal process. At oral argument, Employer disputedthat a settlement paym ent is arecovery by legal process. In the circumstances ofthis case, whenth e parties agreed on the day of trial to settle two causes of action and stipulated to settlement “orally before the court” (§ 664.6),.° we regard the settlementas accomplished th roughlegal process. Weneed not speculateaboutsettlements in dissimilar circumst ances. 3. THE SETTLEMENT PAYMENT HERE QUALIFI ES AS A NET MONETARY RECOVERY In this case, Employer’s settlement payment may be regar ded as Employee’s net monetary recovery, while Employer argues that it is due mandatory costs for obtaining a partial dismissal in its favorin exchange for its payment andlater ajudgment denying Employee anyrelief on the remaining causes of action. W e agree with the Second . District Court ofAppeal in Chinn, supra, 166 Cal.App.4t h 175 that the Legislature can not haveintendedto identify both parties as prevailing an d due mandatory costs, as this would lead to an unreasonable,ifnot absurd, result. (/d. at p. 188.) Two issues.were presented on appeal in Chinn after a tenant had dismissed with prejudice hertort claims 10 Section 664.6 provides: “Ifparties to pending litigatio n stipulate, in a writing signed by the parties outside the presence ofthe court or orally before the court, for settlement ofthe case, orpart thereof, the court, upo n motion, may enter judgment pursuantto the termsofthe settlement. Ifrequested byth e parties, the court may retain jurisdiction overthe parties to enforce the settlement unti l performancein full of the terms ofthe settlement.” 16 against the property manager and property owner of her apartment complex in exchang e for their settlement paymentto her of $23,500." (Id. at p. 181.) One was whether the trial court erred in denying the tenant attorney fees as the prevailing party underherlease.- The appellate court reversed and remanded for a determination “whether thereis a prevailing party for the purpose of an award of attorney fees based on a pragmatic assessmentofthe extent to which[the plaintiff and defendant] realized their objectiv es through the settlement.” (Jd. at p. 193.) Theotherissue in Chinn, supra, 166 Cal.App.4th 175 was whether the trial court erred in not awarding the tenant enough costs as the prevailing party. The appellate court concludedthat the defendants were actually the prevailing parties under section 1032 and due a mandatory costs award. After observing the absurdity of awarding mandatory costs to both sides, the court reasonedthat it was not a situation other than as specifi ed. “We recognizethat‘in situations other than specified,’ thetrial court has discretion to award costs under section 1032. However, a net monetary recovery and a dismissal i n the defendant’s favorare not situations other than specified; they are both specified situations. If the Legislature had intended morethan one party to qualify as a prevailin g party under the mandatory cost award provision,it easily could have providedfor thetria l court to exercise discretion to award costs in the event that more than one party qualifi ed as a prevailing party.” (Chinn, supra,atp. 189.) 11 The settlement in Chinn was coincidentally the same amountas in our case. 12 Tn reaching this conclusion, Chinn, supra, 166 Cal.App.4th at page 189 disagreed with dictum in On-Line Power,Inc. v. Mazur (2007) 149 Cal.App.4th 1079 (Mazur). In a case that was remandedfor other reasons, Mazur directedthe trial court to exercise its discretion to determinethe prevailing party when “both parties achi eved” prevailing party status under section 1032, thus arguably falling “into the ‘situation other than as specified’ category ... .” (Id. at p. 1087 .) 17 Chinn, supra, 166 Cal.App.4th 175 resolved the conflict by “[c]Jonstruing th e term ‘net monetary recovery’ in context,” concluding that “the Legislature did not in tend to includesettlement proceeds received by the plaintiff in exchange for a dismissal i n favor ofthe defendant. Thedefinition ofprevailing party provided in section 1032 re quires the court to award costs as a matter ofright in specified situations. By precluding consideration of settlement proceeds as a ‘net monetary recovery’ when a dismi ssalis entered in favor ofthe defendant, only oneparty qualifies for a mandat ory award of costs, consistent with the prior law.” (Jd. at p. 188.) The court concluded that t he property owner and management company,“as defendants with a dismissal entered in their favor, were the prevailing parties for the purposes of an award ofcosts as a matter o fright under section 1032.” (Jd. at p. 190.) Asindicated, Chinn describedits interpretation ofthe current version of sect ion 1032 as a. continuation of law existing underthe earlier version ofthestatute. The court stated, “The legislative history of Senate Bill No. 654 (1985-1986 Reg. Sessi on) does not indicate any changein the law to consider settlement proceedsor provideco sts to a plaintiff after a dismissal.” (Chinn, supra, 166 Cal.App.4th 175, 189.) Afte r reviewing someofthelegislative history, the court reiterated, “Nothing in the backgrou nd materials accompanying the proposed amendment mentionedsettlement proceeds or sugg ested the definition of ‘prevailing party’ in section 1032 would change existing law to p ermit an award ofcosts to a plaintiff following a dismissal.” (Jd. at p. 190.) " When presented with a situation similar to our case, Chinn reconciled the competing claims by simply deeming settlement proceeds disqualified as a net monetary recovery where a dismissal wasalso involved. While we agree that theLegi slature did not intendto identify opposing parties as both due mandatory costs, we cann ot subscribe to Chinn’s other reasoning. | | Employer relies on Chinn as requiring the trial court to discount the amount Employee received from Employer by way of settlement. Employer contend s,like the 18 defendants in Chinn,it obtained a favorable dismissal. As we will explain, however, the partial dismissal in this case does not establish Employerasa prevailing party. Our case is factually distinguishable from Chinn. But more fundamentally, we disagree with Chinn’s view that a settlement payment can never qualify as a net monetary recovery under section 1032, subdivision (a)(4) when an action is dismissed. Contrary to Employer’s argument, nothing in section 1032 requiresa trial court to disregard a settlement paymentas a “net monetary recovery.” Chinn implied that prior law precludeda plaintiff's recovery of costs following a dismissal. This position overlooked the holding ofRappenecker, which upheld costs awardsto plaintiffs based on their recovery ofsettlement payments pursuantto compromise judgments. We note, however, that Chinn did rely on Rappenecker among other cases in reversing a denial of attorney feesto the plaintiff, concluding that the plaintiff might be deemeda prevailing party for purposes of attorney fees. (Chinn, supra, at pp. 184-185.) . Twoyears after Chinn, Goodman observed that, while there is no clear indication ofthe legislative intent regarding settlement payments, use ofthe phrase “net monetary recovery”did reflect an intent to change the law regarding the impact of settlement payments ona plaintiff's net monetary recovery from a nonsetttling defendant. While Goodman did not mention Chinn, we believe it implicitly rejected Chinn’s narrow construction of “net monetary recovery”as notincluding settlement payments. * Whencosts are sought undersection 1032, subdivision (a)(4), a trial court must determine whether one and only oneparty fits a statutory definition of prevailing party. From Employee’s perspective, though one ofher seven causes ofaction succumbedto a partial summary judgment and four more causes of action were eliminated by motions in limine, she was ultimately paid $23,500 to dismiss her remaining twocausesofaction on the eve oftrial. Although Employerobtained a dismissalfor its payment, except for the unpersuasive reasoning of Chinn, we see no reason whythis settlement payment does not 19 fall within Goodman’interpretation of “net monetary recovery. ” Accordingly,the trial ‘court should have recognized Employeeas entitled to mandatory costs under the statutory definition of “prevailing party.” B. EMPLOYER’S ENTITLEMENT TO MANDATORY COSTS 1. DID EMPLOYER OBTAIN A FAVORABLEDISMISSAL? Employerhas insisted in briefing and oral argumentthat it is due mandatory costs as “a defendant in whose favor a dismissal is entered” (subd . (a)(4)) andthat the dispositions in this case are tantamountto a dismissal. Our review ofthe record discloses that the trial court never entered a judgment expressly dismissing the action. Employee did file a dismissa l with prejudice of the two remaining causes ofaction after thetrial court eliminated her other five causes of action in two stages.” On August1, 2008,the trial court summarily adjudicated the failure to accommodate cause of action and denied summary adjudicati on ofthe remaining causes of action. That ruling did not purport to dismiss that cause of action. On September2, 2008,the trial court granted motionsin limine precluding evi dence and argument 13 Voluntary dismissals are authorized by section 581 in the foll owingsituations. “(b) An action may be dismissed in any ofthe following inst ances: “(1) With or without prejudice, upon written request ofthe plain tiff to the clerk,filed with papers in the case, or by oral or written request to the court at any time before the actual commencementoftrial, upon payment ofthe costs, if any. “(2) With or without prejudice, by any party upon the written consent ofall otherparties. “.. [0 “(c) A plaintiffmay dismiss his or her complaint, or any cause of action asserted in it, in its entirety, or as to any defendant or defendants, with or without prejudice prior to the actual commencementoftrial.” 20 concerning variousclaims, but the order sustaining the mot ions in limine did not purport to dismiss the other four causes of action.” Section 581 lists a numberofsituations authorizing involunta ry dismissal of an action or cause of action, not including summary adjudica tion or a successful in limine motion.!® In responseto our request for supplementalbriefin g, Employer accurately 14 The granting of the motionsin limine was tantamount t o a summary adjudication on the four causes of action for retaliation, inte ntional and negligent infliction of emotionaldistress, and wrongful terminat ion. (Cf. Rk & B Auto Center, Inc. y. Farmers Group, Inc. (2006) 140 Cal.App.4th 327, 350.) This court has previously cautioned against using in limine motionsas a substitute fo r other dispositive motions described in the Code of Civil Procedure. (Amtowerv. Pho ton Dynamics, Inc. (2008) 158 Cal.App.4th 1582, 1593.) As noted in our prior opinion, Employee has not made an issue of the procedure employedin this case. (DeSaulles v. Community Hospitalofthe Monterey Peninsula, supra, p. 75, fn. 29.) 15 Section 581 provides for involuntary dismissals by the c ourt in a numberof situations. The complaint may be dismissed when a demur rer is sustained without leave to amend (§ 581, subd. (f)(1)), a complaint is not amended within the time allowed after demurrer wassustained with leave to amend (§ 581, subd. (f)(2)), or a motionto strike the entire complaint is granted (§ 581, subds. (f)(3), ( 4)). The complaint may be dismissed entirely or as to a defenda nt when the forum is inconvenient(§§ 581, subd. (h), 418. 10, subd. (a)(2)), t he plaintiffhas not advanced the litigation within the time periods required by Chapter 1.5 (beginning with section 583.110) (§ 581, subd. (g)), or a party fails to appear fortri al (§ 581, subd. (2). Alternatively, the “ ‘action’ ” may be dismissed whentheplai ntiffhas not advancedthelitigation within the time periods required by C hapter 1.5 (beginning with section 583.110) (§ 581, subd. (b)(4)) or any party fails to ap pear fortrial (§ 581, subds(b)(3), (5)). " Dismissal is mandatory in two cases. “(d) Except as otherw ise provided in subdivision (e), the court shall dismiss the complaint, or a ny cause of action assertedin it, in its entirety or as to any defendant, with prejudice, when u pon thetrial and before the final submission ofthe case, the plaintiff abandonsit . “(e) After the actual commencement oftrial, the court shall dismiss the complaint, or any causes ofaction asserted in it, in its entirety or as to any defendants, with prejudice, if the plaintiffrequests a dismissal, unless all af fected parties to thetrial consent to dismissal without prejudice or by order of the c ourt dismissing the same without prejudice on a showing of good cause.” 21 points out that section 581 is not exclusive. A trial court’s “limited, inherent discretionary power”to dismiss civil claims with prejudice is recognized in case law (see Lyons v. Wickhorst (1986) 42 Cal.3d 911, 915, and casesthere cited) a nd in section 581, subdivision (m): “The provisionsofthis section shall not be deeme d to be ‘an exclusive enumeration ofthe court’s power to dismiss an action or dismiss a complaint as to a defendant.” (Stats. 1993, ch. 456, § 9, p. 2529.) Wefind nothingin the re cord reflecting thatthetrial court exercisedits inherent authority to dismiss this act ion. A ruling should not be regarded as a dismissal unless it reflects an explicit or i mplicit intent to dismiss an action or cause of action. Employer argues that the failure to label a judgment a dismissalis not determinative, relying on Schisler v. Mitchell (1959) 174 Cal.App.2d 27, wh ich held that a judgmentorderingtheplaintiffto take nothing was appealable although thetr ial court did not order a dismissal after sustaining a demurrer without leave to amend. (Jd .at p. 29.) . Here, a judgment was eventually entered providing that Employee “recover nothing” from Employer. That judgmentrecitedthe earlier dispositions oft he various causes of action, beginning with the summary adjudication, then the sustainin g of| motionsin limine, and finally “Tt}he patties having settled plaintiff's third cause of action for breach of implied infact contract and fourth cause[] ofaction for breach o fthe - covenant of good faith and fair dealing ... .” The judgment did not mention Empl oyee’s dismissal with prejudice or the settlementpayment andreflects no intent to di smiss any causes of action. Indeed, it appears intendedtofacilitate appellate review ofthe earlier rulings,as it deferred requests for costs and fees until after the time for all a ppeals. Section 581d states in pertinent part: “A written dismissal of an action shall b e entered in the clerk’s register and is effective for all purposes whenso entered . [§] All dismissals ordered by the court shall be in the form of a written order signed by the court and filed in the action and those orders whensofiled shall constitute judgme nts and be 22 effective for all purposes ... .” This statute may be only applicable to dismissals . specifically authorized by section 581 (Lavine v. Jessup (1957) 48 Cal.2d 611, 615-616) (Lavine), butit suggests that the proper form of a dismissalis to order dismissal. (Boonyarit v. Payless Shoesource, Inc. (2006) 145 Cal.App.4th 1188, 1192-1193 (Boonyarit).)'* Employer contends that the dismissal in this case was pursuantto thetrial court’s inherent authority and not pursuantto a particular provision in section 581. While Employee dismissed two causesofaction in exchangefor a settlement payment, thetrial court itself did not dismiss any causes of action. It makes sense to mandatecosts under subdivision (a)(4) only when a dismissal ends the action against a defendant and not when a voluntary dismissal leaves the plaintiff with pending claims against that defendant. Under the pre-1986 version of section 1032, courts had determined thata plaintiffwho obtained a favorable judgmentwasentitled to costs, even if someofthe plaintiff's claimsfailed at trial or were withdrawn. (Sierra Water & Mining Co. v. Wolff(1904) 144 Cal. 430, 433-434[plaintiffs recovered only part of land sought]; Western Concrete Structures Co. v. James I. Barnes Const. Co. (1962) 206 Cal.App.2d 1, 11 [judgment favored plaintiffthough defendant defeated some causes of action].) Fox v. Hale & Norcross Silver-Mining. Co. (1898) 122 Cal. 219 (Fox) stated that “[t]he prevailing party is entitled to costs incurred by him[,] whether his recovery be for the wholeor a portion ofhis claim, or whether his claim be made upofone orseveral . 16 Boonyarit, supra, 145 Cal.App.4th 1188 involved an ineffective request by the plaintiffto dismiss six of 16 defendants in connection with filing an amended complaint. Becausethe plaintiff improperly completed the dismissal form,it was rejected by the court clerk. (Id. at p. 1190-1191.) Section 581, subdivision(c), authorizes a plaintiff to request dismissal of defendants prior to the commencement of trial. The court relied on section 581d for guidanceasto the form of such a voluntary dismissal (Boonyarit, supra, at p. 1192) without indicating that in cases not covered by section 581, section 581d is inapplicable. (Lavine, supra, 48 Cal.2d 611, 616.) 23 causes of action.” (/d. at p. 223.)'7 At oral argument, Employer co nceded that subdivision (a)(4) does not mandate costs in the case of a partial dismi ssal when the plaintiff retains live claims. The summary adjudication did notend the action in Employer’s favor. The sustaining ofin limine motionsdid not end the action in Employer’s favor, as two causes of action remainedfortrial. The case ended withouta trial on the merits be cause Employee agreed to dismiss her remaining two causesofaction, but the j udgment entered did not purport to dismiss the entire action. The judgment was intend ed byits terms to preserve Employee’s right to appeal the court’s rulings on her other clai ms. Employee did indeed appealin an ultimately unsuccessful attempt to resurrect thos e causes of action. Employee voluntarily dismissed twocauses of action and a judgment was entered on the remaining causes. Employer obtained at most a partial voluntary di smissal, which we concludedid not, without more, trigger a mandatory costs award to Employer. In 17 We have not found authority under the former statute awarding costs to a plaintiffwho recovered damagesattrial after the voluntary or invo luntary dismissal of a cause of action, but Fox comesvery close. That plaintiff initially obtaine d ajudgment awarding $210,197.50 on a claim of overpaying the actual costs of mill ing ores and an additional $789,618.00 on a claim offraudulent milling. (Fox, su pra, 122 Cal. at p. 220.) An appealresulted in a reversal of the award on the fraud claim and a r etrial of that cause of action, after which the plaintiffwas awarded $417,683.00 on the secon d cause of action. (Id. at p. 221.) A second appeal was taken, andafter a hearing was held, the plaintiff filed a release ofall claims on the second causeofaction and asked the California Supreme Court to affirm the judgment on the first cause of acti on. (/bid.) The high court sustained the release, ordered the judgment modified , and rejected the defendants’ contention that they were the prevailing parties on the with drawncause of action in view ofthe rulethatthe plaintiff's partial recovery madeit th e prevailing party. (Id. at p. 223.) Fox did not involve a dismissal of a cause ofaction in the trial court, but the plaintiff's release of one cause of action was like a dismissal. 24 contrast, the defendants in Chinn, supra, 166 Cal.App.4th 175 obtained a complete dismissal ofthe plaintiff's action in exchange for their settlement payment. 2. DID EMPLOYEE RECOVERNO RELIEF AGAINST EMPLOYER? The amended judgmentprovidesthat “Plaintiff recover nothing from defendant.” Atleast superficially this fits the category of “a defendant as against those plaintiffs who do not recover anyrelief against that defendant,” and Employer so arguesin its response to our request for supplementalbriefing. Weobserve that section 1032 distinguishes among different forms of relief. A “net monetary recovery” is one form ofreliefmandating costs, but the statute also contemplates nonmonetary relief. One issue in Friends ofthe Trails v. Blasius (2000) 78 Cal.App.4th 810 (Blasius) was whether the plaintiffs had recovered any type ofrelief. They had “soughtto quiettitle to a public easement for recreational purposes” and “also soughtinjunctive and declaratory relief.” (Ud. at p. 819.) The defendants were property owners and an irrigation district, which used a road easementoverthe property to maintain a ditch. (/d. at p. 818.) Theplaintiffs obtained a declaration by thetrial court that a public easement had been created (id. at pp. 819-820), but the judgmentalso stated, “ ‘Noreliefis granted in favorofplaintiffs against[the irrigation district].’” (/d. at | p. 820.) Nevertheless, the trial court awardedcosts to the plaintiffs againstthe irrigation district. (Ibid) Onappealthe irrigation district contended that it was the prevailing party‘under section 1032, subdivision (a)(4), based on the judgment provision denyingplaintiffs relief. (Blasius, supra, 78 Cal.App.4th 810, 839.) The appellate court rejected the argument, stating “the meaning ofthat recital is that the court was rej ecting the [plaintiffs’] request for affirmative relief against [the irrigation district], i.e., reiterating the [irrigation district] easement or granting injunctiverelief. Notwithstanding the recital, in the circumstancesofthis case, the court could find that reliefhad been grant ed 25 in favorof[the plaintiffs] against [the irrigation district] on the quiet title claim. (See Code Civ.Proc., § 761 .030, subd.(b) [‘If the defendantdisc laims in the answer any claim, or suffers judgmentto be taken without answer, the plaintiff shall n ot recover costs’]; see generally Hsu v. Abbara (1995) 9 Cal.4th 863, 877 [‘Weagr ee that in - determininglitigation success, courts should respect substance rather th an form, and to this extent should be guided by “equitable considerations.” For example , a party whois denied direct relief on a claim may nonetheless be found to be a preva iling party [under Civ. Code, § 1717] if it is clear that the party has otherwise achieved its main litigation objective.’ (Original italics.).].) [§]] We conclude that the trial cour t did not err in determining that this was a case where [plaintiffs] recovered ‘other t han monetary relief as to [the irrigation district] and in awarding costs against [the irrig ation district].” (Blasius, supra, 78 Cal.App.4th 810, 839.) | Employer, like the irrigation district in Blasius, contendsit is due mandato ry costs based onthe judgment provision that Employee shall “recover noth ing.” Blasius illustrates that a costs award should be based onall aspects of a laws uit’s. final disposition rather than.on an isolated phrase in the judgment. The judgment in t his case provided that Employee shall recover nothing andalso recited that the partie s hadsettled twoof the seven causes of action. But the judgmentfailed to mentioned that Employee was paid $23,500 in exchange for dismissing those causes of action. This wa s not a case where Employee recovered norelief. Employerdoes not qualify under t his definition of prevailing party... IfEmployer had qualified as a “prevailing party,” this case could b e among the “situations other than as specified” for purposes of awarding mand atory costs. (§ 1032, subd. (a)(4).) However, because we conclude that Employer wasno t a prevailing party underthe statute, the case did not present the trial court with occas ion to exercise discretion to determine which party prevailed based on the merits o fthe case. When only oneparty fits a “prevailing party” definition, section 1032 opera tes mechanically to 26 mandate costs and does not afford the trial court discretion to decide the issue in light of the circumstances, such as by discounting a nuisance settlement. Of cour se, parties can avoid this mechanical approach by taking care to provide for costs in their settlements. Butit is not for this court to rewrite the statute to provide for discretion wher e it does not now exist. VI. DISPOSITION The order awarding costs to Employer and denying costs to Employee i s reversed. 27 Grover,J. WE CONCUR: Rushing,P.J. Marquez, J. deSaulles v Community Hospital ofthe Monterey Peninsula H038184 Trial Court: Monterey County Superior Cou rt Superior Court No. M85528 Trial Judge: Hon. Lydia Villarreal Counsel for Plaintiff/Appellant: Henry Joachim Josefsberg Counsel for Defendant/Respondent: Christopher Edward Panetta Fenton & Keller CIV-110 ATTORNEY OR PARTY WITHOUT ATTORNEY (Name and Address): TELEPHONE NO.: FOR COURT USE ONLY | Henry J. Josefsberg, Esq., SBN 136772 (562) 436-9401 =, 110 West Ocean Boulevard, Suite 611 - |a- |) Long Beach, California 90802 emt ATTORNEY FOR (Name): Plaintiff Maureen deSaulles OCT 06 2008 Insert name of court and nameofJudicial district and branch court, it eny: CONNIE MAZ7ZE} Monterey County Superior - Monterey Branch CLERK OF THE SUPERIORCOURT PLAINTIFF/PETITIONER: Maureen deSaulles J. NICHOLSON DEFENDANT/ RESPONDENT: Community Hospital ofthe Monterey Peninsul [—] Personal InjuryPropertyDenieaetissWrongful Death CASE NUMBER: [_] Motor Vehicle [] other M85528 {__] Family Law mS C EminentDomain Other(specify) : Employment - A conformed copywill not be returned bythe clerk unless a methodof return is provided with thedocument. -- 1. TO THE CLERK:Please dismiss this action as follows: a. (1) [¥_] With prejudice (2) ["_] Without prejudice b. (1) [] Complaint (2) [7] Petition . (3) (_] Cross-complaintfiled by (name): on (daie): (4) [_] Cross-complaintfiled by (name): on (date): (5) [J Entire actionofall parties and all causes of action (6) [7]Other (specify):* CA 3 [Breach of Contract]; Date: September 11, 2008 (TYPE OR PRINT NAME OF [¥_] ATTORNEY [__] PARTY wiTHOUT AT/ORNEY) t (SIGNATURE) aidismissal | requested is of specified parties only of specified cause pe F without attorneyfor.only, cified cross-compiainis o state and identi ns theparties, causesof fm edismissed. /Petitioner LC) Defendant/fRespondentP cau o action, or crossComplaints lob dism 2. TO THE CLERK:Consent to the above dismissal is hereby given.** Date: September 11, 2008 Christopher E. Panetta, Esq. . » (TYPE OR PRINT NAMEOF ATTORNEYC] PARTY WITHOUT ATTORNEY) (SIGNATURE) ifgcross-compaintorFResponseFayLew)seekingeficmatie Attorney orparty without attomey for: sign this consent if required by Code of Civil Procedure section 581(i) [__] Plaintifi/Petitioner Vv) DefendantRespondent or (). [| Cross -.complainant (To be completed by clerk) = L_] Dismissal entered as requested on (date ¢ A nf | 4. [pADismissal entered on (date: OCT 0 f° 2008 as to only (name): \o> bole)A> so 2 * | 5. [__] Dismissal notentered as requestedfor the following reasons (specify): cc AH ©n\ra 6. (eT a. Attomey orparty without-attorney notified on (date): 0 CT 0 6 2008 b. Attorneyorparty without attorney notnotified. Filing party failed to provide [__] a copy to conformed [—_]meansto return conformed copy J. NICHOLSON Dee: gC 0.6 2008 CONNIE MAZAEt Deputy Page.1 of 1 Adopted Manda! . 5radicalCounct ofCalor REQUEST FORDISMISSAL coe ESuesofCoaltle3.1066 CIV-110 (Rev. January 1, 2007) www.caurtinfo.ca.gov : American LegaiNet, inc. www.FormsWorkdiow.com. 000141 -61.30008 ] . CHRISTOPHERPANETTABane 175127) 2 8 3; 444 Telephone: |831:F73-1241 5 | Facsimile: ©894-373-7219 ERR: 6 | Attomeysfor.Defendant | ~ AlinaOliver | - | COMMUNITYHOSPITAL OF THE MONTEREY . oe 71 PENINSULA . ne 8 . SUPERIOR COURT OF THESTATE OF CALIFORNIA 9, . ~ COUNTY OF MONTEREY iof — 11 MAUREEN deSAULLES, CASENO. A 85528 12 , Plaintiff, oe 13 Vv. 14 | COMMUNITY HOSPITAL OF THE MONTEREY PENINSULA;and DOES 15 # 1-25, Date of Filing: July 17, 2007 Trial Date: September 2, 2008 16 Defendant. 17 | 18 This action carne on regularly for trial on Septembe r2, 2008 in Department 17 of the 19 || Superior Court, the Honorable Kay T. Kingsley presiding. Henr y J. Josefsberg appeared as 20 attomey for plaintiff MAUREEN deSAULLES (“plaintif f”), and Christopher E. Panetta of Fenton & Keller appeared as attorney for defendant COMMUNI TY HOSPITAL OF THE 21 22 MONTEREY PENINSULA(“defendant”). 23 Having considered the arguments, oral and written, of al] the parties, the records and file 24 | herein, and the pre-trial motions and oppositions t hereto filed herein, and having granted 25 4 defendant’s Motion in Limine No. ] to Preclude Any ‘Arg ument That Defendant Failed to 26 Accommodate Plaintiff's Disability or to Engage in the Interac tive Process, or That Plaintiff Was 57 Harassed, Discriminated or Retaliated Against in Connectio n Therewith, the Court finds that 28 : plaintiff will be unable to introduce any evidence that would establish plaintiff's second cause of ENTON & KELLER HAdocuments\adp.0feInpy.doc ATTORNEYH AT Law . MonTERey [PROPOSED] JUDGMENT — 0 HORT — 0 O N D A W D F W D e w w w N R E E E E E T S B L E N o p p e B B F F C e A A H R K H N HS CO 28 Fenton & KELLER aATrorKers AT Law MOnTEALY | action for retaliation,her fifth and six th causes of action for intentional and ne gligent infliction | contractandfourth causes ofaction for breach of the covenantof good fait h and fair dealing, - — of emotional distress, orher:seventh cause of-action for wrongful terminat ion in violation off - public policy; and, The Court having previously gra nted summary adjudication of Pla intiff's first cause of action for failure to accommodate, pad , The parties having settled plainti ff's third cause of action for bre ach of implied in fact IT IS HEREBY ADJUDGEDthat, 1. Plaintiff recover nothing fro m defendant; and 2. The Parties shall defer s eeking any recovery of costs and fees on this Judgment comingfinal after the timefor all appeals. paseaNAb&, wfOD BLDVae FodgeAthe, Superior CourtST RAYTs 1GSLEY Dated: ices __, 2008 APPROVED AS TO FORM AND CONTEN T Henry J.Josefsberg, Esq. , Attorney for Plaintiff MAUREEN deS AULLES H:\documents\adp.0fe7npv.doc -2- [PROPOSED] JUDGMENT- c S a ) x t o > 28 FENTON & KELLER ATTGRULYS AT Law WATSONVILLE CHRISTOPHER E. PANETTA(Bar No.175127) Ree pe om, KATHERINE M. HOGAN (Bar No. 225597) ee RL EE FENTON & KELLER ~ A Professional Corporation 4 Post Office Box 791 CONN! JAN 13 e012 2801 Monterey Salinas Highway CLERKOFaE Monterey, CA 93942-0791 SUPERIOR CouRT Telephone: (831) 373-1241 "YTStorarayPury Facsimile: (831) 373-7219 Attomeys for Defendant COMMUNITY HOSPITAL OF THE MONTEREY PENINSULA SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF MONTEREY MAUREEN DESAULLES, CASE NO. M85528 Plaintiff, RDER GRANTING DEFENDANT’S MOTION TO STRIKE Vv. ' PLAINTIFE’S MEMORANDUMOF COSTS IN ITS ENTIRETY AND COMMUNITY HOSPITAL OF THE DENYINGPLAINTIFE’S MOTION TO MONTEREY PENINSULA, TAX OR STRIKE COSTS Defendant. The motion of Defendant COMMUNITY HOSPITAL OF THE MONTE REY PENINSULA (“Community Hospital”) for dn order to strike the Memorandum of Costs of Plaintiff MAUREEN DESAULLESand the motion of Plaintiff for an order to tax or strik e Community Hospital’s Memorandum of Costs came for hearing in Department 15 of this Cour t on December 2, 2011. Christopher E. Panetta appeared on behalf of Community Hospital. Henry J. Josefsberg appeared on behalf of PlaintiffMAUREEN DESAULLES(“Plaintif?’). Having read the motions, the memoranda and the declarations filed by the parties , and having heard argument of counsel, the Court finds that Plaintiff is not entitled to costs pursuant to Code of Civil Procedure section 1032. The Court further finds that Community Ho spital is entitled to costs pursuant to Code of Civil Procedure section 1032, as stated i n Community Hospital’s Memorandum of Cosis filed on October 7, 2011, in the amount of $11, 918.87. . GOR? {CEP-00185005;1 } ORDER GRANTING DEFENDANT'S MOTION AND DENYING PLAINTIFF'S MOTION RE COSTS Le/G/ 2211 12:36 562436542: HENRY o } THEREFORE, if IS ORDERED that Community Hospita!" g motion for an order to 4 strike the Memorandum of Costs of Plaintiff MAUREEN DESAULLESbe granted. ’ IT 18 FURTHER ORDERED that Plaintiff's motion for an order to tax or strike : Community Hospital’s Memorandum of Costs bs denied and thet Community Hospital be - awarded $11,918.87 in costs. 6 As Plaintiff did not contest Community Hospital’s Memorandumof Costs on Appea! 5 . filed on. October 7, 2011, in the smount of 8813.05, Plaintiff is further therefore ordered to pay Community Hospita! $813.05 in costs on appeal. ° Date: Decembex———38tT " JAN 13 2012 LYDIA M. VILLARREAL i2 Judge of the Superior Court Approwes asts Yorm: sy 16 eoOfMELEon._ 17 7oa tet a Hendy J. Josefsber. 18 o Attérney forPlainthTTAUREN “ “ BESAEELES .f a19 ; a a7 = BYFAX 27 NOSSGS28 MESS Funton &Kattor {CEP-OOIASO0S;1 } ~2- Paternrye & ley ORDER GRANTING DEFENDANT'S MOTION AND DENYING PLAINTIFF'S MOTION RE COSTSMOTPRRYEIE GEOR78 PROOF OF SERVICE 1, Tanya Sampaolo, declare: I am a resident of the State of California and over the age of eighteen years, and not a party to the within action; my business address is 2801 Monterey-Salinas Highway, Post Office Box 791, Monterey, CA 93942- 0791. On August 22, 2014, I served the within document(s): OPENING BRIEF [x] placing the document(s) listed above in a sealed envelope with postage thereon fully prepaid, in the United States mail at Monterey, California addressed as set forth below. Henry J. Josefsberg, Esq. Clerk of the Court ym0 WestOceanBoulevard, Suite #611 Monterey County Superior Court g , 1200 Aguajito Road Monterey, CA 93940 California Court of Appeal SIXTH APPELLATE DISTRICT 333 West Santa Clara St., Suite #1060 San Jose, CA 95113 I declare under penalty of perjury under the laws of the State of California that the aboveis true and correct. Executed on August 22, 2014, at Monterey, California. ip Sampaol) -