DESAULLES v. COMMUNITY HOSPITAL OF THE MONTEREY PENINSULA

Respondent’s Petition for Review

Cal.Jun 11, 2014

S 2 1 92 3 SUPREME COURT “Eh PSPS 6 F Pak Le JUN BL Zuid Case No. IN THE SUPREME COURT OF THE Frank A. MoGuire ClerkSTATE OF CALIFORNIA Fane ui Neouty MAUREEN DESAULLES, Plaintiff / Appellant, V. COMMUNITY HOSPITAL OF THE MONTEREY PENINSULA, Defendant / Respondent/ Petitioner Court ofAppeal ofthe State of California, Sixth District Case No. H038184 Superior Court ofthe State of California, County of Monterey Case No. M85528 PETITION FOR REVIEW 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. IN THE SUPREME COURT OF THE STATE OF CALIFORNIA MAUREEN DESAULLES, Plaintiff / Appellant, Vv. COMMUNITY HOSPITAL OF THE MONTEREY PENINSULA, Defendant / Respondent/ Petitioner Court of Appeal ofthe State of California, Sixth District Case No. H038184 Superior Court ofthe State of California, County ofMonterey Case No. M85528 PETITION FOR REVIEW 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....0.......ccceccecsneeesereseeeeeeseesesesssseeaescseseeeeseeeneees 1 Il. INTRODUCTION: WHY REVIEW SHOULD BE GRANTED .1 Ill. STATEMENTOF PACTS...ccccsccessecsscssesssessensenseseseaeesneenens3 A. Background Facts .........ssscscsessesseeseeeesessssenseesecsneeseesneneenseneeens3 B. The Court ofAppeal’s Decision ...........sesesesesesseteneseseerenssees 5 TV. LEGAL DISCUSSION 0.000...cee essesseseseeseseessssseeessesseccseseseeennenes6 A. SUPREME COURTREVIEW IS NECESSARY TO RESOLVE THE DECISIONAL CONFLICT CREATED BY THE COURT OF APPEAL’S OPINION AND TO HELP CLARIFY COSTS PROCEDURES UNDER SECTION 1032.0...ec eecssesessscesesssssecesecsseesssestecssesseessneenaeeass6 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 determiningcosts.............6 2. The Court ofAppeal’s finding that settlement proceeds qualify as a “net monetary recovery” will diminish the clarity of Section 1032, lead to disputes over the resolution of costs issues, and will increase the workload of an already overburdened and underfunded JUGICIATY oo. eeeececeeeseeseneteeesnorseeessesscssscesssesesnsenseseeenenes 10 V. CONCLUSIONeececcceecsesesssseesseseeseecsesseeesseeseeenesenseteneees 14 TABLE OF AUTHORITIES Page No.: STATE CASES Cano v. Glover (2006) 143 Cal.App.4'? 326 vccsecssssesscssseeeesstecssetessessnsessssesssasessness 6,8 Childers v. Edwards (1996) 48 Cal.App.4" 1544 voccescseecssscscseessesesssssssssesseeesvecsnenseensees 14 Chinn v. KMR Property Management (2008) 166 Cal.App.4" 175 ..... 1, 2, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14 City ofIndustry v. Gordon (1972) 29 Cal.App.3d 90 ....ccccccccssssesseseeetseeestecesereressssesesssesessssenenss6 Crib Retaining Walls, Inc. v. NBS/Lowry, Inc. (1996) 47 Cal.App.4th 886... cceccesssesessseereteteesetssreeseaseneesseesenes 6,8 Folsom v. Butte County Assn. ofGovernments (1982) 32 Cal.3d 668 o...ceescsesessesssseseseerseeeseseensereesnessenssstseseessnens 12 Gallagher v. Manatee County (Fla. App. 2006) 927 S0.2d 914... .csccsesesesetetestereteeeeeesseeessenseneeees 10 Gebelein v. Irvin (1992) 231 TIL. App. 3d LOL] oo.eececeeeeeeeeteteeseeteeseesetseeenseesees 9, 12 Goodman v. Lozano (2010) 47 Cal.4 1327 .cccsseccssscseessseessesesneeesrestestesseesses 2, 7,9, 11, 13 Great Western Bank v. Converse Consultants, Inc. (1997) 58 Cal.App.4th 609 oo... ecccsssesseseneeecsereeestereesenteeseensees 6, 8 Rappenecker v. Sea-LandService,Inc. (1979) 93 Cal.App.3d 256 w..ccecccscssesseeeesetestseeeteesnesersereeseensees 11, 12 Santisas v. Goodin (1998) 17 Cal.4° 599 oooccccccccsssssssesesneeceesseeessnessseessetessnessuseesseenseeee 2,8 Spinks v. Superior Court (1915) 26 CalApp. 793 .....cscscsessesesesereneneeetenssesereensssssssseeseeerenenses6 -ii- TABLE OF AUTHORITIES-CONT’D Page No.: STATE CASES Wakefield v. Bohlin (2006) 145 Cal.App.4" 963 w.sccccsssscssesseecsesseeeseecnrenseesssntesseeesseesses 7,9 OTHER AUTHORITIES Page No.: Black’s Law Dictionary 1302 (8 ed. 2004). ..ccscssssessecseesesscssecssessecntentenseeees9 Code of Civil Procedure Section 877 ........ssccssssssssssceseseeessessenseeseneennestensens9 Code of Civil Procedure Section 1032 sesseneees 1, 2, 5, 6, 7, 8, 9, 10, 11, 13, 14 Random House Unabridged Dictionary 1613 (2nd ed. 1993)vcs9 - ili - I. ISSUE PRESENTED Do settlement proceeds qualify as a “net monetary recovery” under Code of Civil Procedure Section 1032, subdivision (a)(4)? II INTRODUCTION: WHY REVIEW SHOULD BE GRANTED 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 ofright.” In this case, the Sixth District Court of Appeal ruled in a published decision that proceeds obtained in a settlement qualify as a “net monetary recovery” under Section 1032. The Court of Appeal’s opinion directly conflicts with existing case law, creates a split of authority on an issue of importance to the courts and litigants, and creates 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 999 relieving court congestion and easing judicial workload.’”]) Supreme Court review is needed in this case to resolve this decisional conflict and to ensure that the legislative goal of maintaining clear procedural rules for determining costs is preserved. 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 “Icjonstruing 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; Cano v. Glover (2006) 143 Cal.App.4" 326, 331.) 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 of costs. (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 frameworkit created, was accorded further support by this 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 accountoverall successofthe plaintiff through settlement. The decisional conflict created by the Sixth District Court of Appeal’s opinion upsets the balance and the procedural simplicity created by Chinn and other decisions. By providing the basis for two parties to a settlement to assert prevailing party status, the ruling will lead to disputes over costs issues and will create further complexities in the law as courts are forced to choose one prevailing party in circumstances where case law _ supports a finding of two prevailing parties. This is sure to further burden an already overburdened court system. Supreme Court review is needed to resolve the decisional conflict the Court of Appeal’s decision creates, to help effectuate the Legislature’s goal of simplifying costs procedures, and to aide in the administration of justice and ensure that court congestion is minimized. 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 such a 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 broughta 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 good faith, a fifth cause of action for emotionaldistress, a sixth cause ofaction for “punitive damages,” and a seventh cause ofaction for termination in violation of public policy. (JA 1-40, 171.) Plaintiffs second through seventh cause of action were based largely on herfirst cause of action and herclaim that she was not reasonably accommodated. 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 plaintiffs main cause of action for failure to accommodate, but allowed her to proceedto trial on the other claims. (JA 39-40.) At trial, the Hospital filed a motion in limine seeking to preclude plaintiff from introducing any evidence attrial regarding the Hospital’s alleged failure to accommodate since that claim had been summarily adjudicated in the Hospital’s favor. (JA 185-186.) The trial court granted the motion, which effectively precluded plaintiff from establishing her second,fifth, sixth, and seventh causes of action attrial. 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 thetrial court. The settlement only concernedplaintiff's two contract claims and plaintiff retained her 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 obtainedhadit prevailed at trial: dismissal with prejudice ofplaintiff's two remaining claims. Moreover, and with respect to the issue of costs, 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. Accordingly, under Chinn, it was not possible for plaintiff to claim that the settlement sum she received automatically entitled her to costs as a prevailing party. The trial court then issued a judgment based on the summary judgmentruling, the rulings at trial, and the voluntary dismissals, which provided that “[p]laintiff recover nothing from defendant.” (JA 276; Attachment2.) Plaintiff filed an appeal challenging the trial court’s rulings andthe Court ofAppeal denied the appealin its entirety. (JA 144-223.) | Thereafter both parties filed a memorandum ofcosts. (JA 49-69; JA 82-86.) Each party movedto strike 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 Hospitalits costs. (JA 377-378; Reporter’s Transcript 7:6-14; Attachment2.) Plaintiff then appealed the costs award to the Court of Appeal arguing that the ruling in Chinn should be rejected and that the amount that she received in settlement made her the prevailing party for purposes of costs. B. The Court of Appeal’s Decision On May2, 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 Appeal ruled that contrary to the holding in Chinn, a settlement payment may qualify as a net monetary recovery under Section 1032. (Typed opn. p. 19; Attachment 1) The holding is contrary not only to Chinn, but to other cases as well that, together with Chinn, have established a clear procedural framework for resolving costs issues. The court in Chinn analyzed thelegislative history of Section 1032 and determined that by enacting Section 1032, the Legislature intended to exclude settlement proceeds from the definition of “net monetary recovery.” (Chinn, supra, 166 Cal.App.4™ at 189-190.) The Court of Appealin this case rejected Chinn and held that “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.” (Typed opn. p. 19) The Court of Appeal’s ruling rests onits finding that there is “nothing” in the language of Section 1032 that “requires a trial court to disregard a settlement payment as a ‘net monetary recovery.’” (Typed opn.p. 19) In addition to being contrary to Chinn, the Court of Appeal’s opinion conflicts with case law that holds that a defendant who obtains a dismissal as a result ofa settlement is the prevailing party under Section 1032. There exists a longline of cases that hold that a defendant whoobtainsa dismissal is the prevailing party, regardless of whether the dismissal is voluntary or entered as part of a settlement. (Cano v. Glover (2006) 143 Cal.App.4" 326, 331; 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; City of Industry v. Gordon (1972) 29 Cal.App.3d 90, 93; Spinks v. Superior Court (1915) 26 Cal-App. 793, 795.) By permitting plaintiffs who provide dismissals in exchangefor settlement sums to claim prevailing party status, the Court of Appeal’s decision creates decisional conflict with these cases as well as Chinn. IV. LEGAL DISCUSSION A. SUPREME COURT REVIEW IS NECESSARY TO RESOLVE THE DECISIONAL CONFLICT CREATED BY THE COURT OF APPEAL’S OPINION AND TO HELP CLARIFY COSTS PROCEDURES UNDER SECTION1032. 1. The Chinn holding that settlement fundsfail 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. The Chinn decision created a procedural framework for analyzing costs issues that is consistent with legislative intent, case law, and the goals of simplifying procedures for determining costs. By rejecting Chinn and creating decisional conflict, the Court of Appeal’s opinion underminesthis framework and diminishesthe clarity that the Legislature sought to create when it enacted Section 1032. The result will be more disputes over costs and more work for courts. 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 any relief, and a defendant as against those plaintiffs who do not recover any relief against that defendant.” (Chinn, supra, 166 Cal.App.4” at 187.) Section 1032 provides that costs are available as “a matter of right” when the prevailing party is within oneofthese four categories. (Chinn, supra, 166 Cal.App.4" at 188.) “The purpose of the 1986 legislation, which was sponsored by the California Judges Association (CJA), was to streamline the rules and procedures on the award oflitigation costs, which 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 ofthe 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 decision in Chinn helped establish a procedural framework for analyzing costs that wasin line with these legislative goals. 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 judgment in the defendant’s favor” that entitled the defendant to costs. (Chinn, supra, 166 Cal.App.4" 187.) The 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.) In fact, Section 1032 expressly provides that “a defendant in whose favor a dismissal is entered” is a prevailing party for purposes of Section 1032. This is true regardless of whether the dismissal is voluntary or involuntary. (Santisas v. Goodin (1998) 17 Cal.4" 599, 606 [defendant entitled to costs under Section 1032 after plaintiff voluntarily dismissed action.].) It is true regardless of whether the dismissal is with prejudice or without prejudice. Cano v. Glover (2006) 143 Cal.App.4" 326, 331 [“Defendantis entitled to costs regardless of whether the dismissal is with or without prejudice.”].) Andit is true regardless of whetherthe dismissal comes about by way of a settlement. (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.) The Chinn court reasoned that allowing the term “net monetary recovery”to include settlement proceeds “would lead to an absurd result, as both plaintiff and defendants would be entitled to an award of costs as a matter of right.” (Chinn, supra, 166 Cal.App. 4" at 188.) The court therefore concluded that “[c]onstruing the term ‘net monetary recovery’ in context, we conclude that the Legislature did not intend to include settlement proceeds received bytheplaintiff 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 case law, and by ensuring internal consistency within Section 1032, this ruling created a procedural framework for analyzing costs that is simple and straight- forward: Defendants who obtain dismissals are prevailing parties 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 but it facilitates settlement of cases between parties by creating a clear, concise rule withrespect to costs at settlement. This framework, moreover, was implicitly endorsed 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 and attrial 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, (not applicable here), the trial court offset the damage award with the settlement funds plaintiffs received from the other defendants, resulting 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 becausethey 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 been the prevailing parties because they obtained a settlement of $230,000. Instead, the Court looked to the final judgment alone to determine net monetary recovery. (Goodman, supra, 47 Cal.4™ at 1333-1338.) The Goodmancase offers further support for the Chinn holding by providing a definition of the term “net monetary recovery” that cannot include amounts obtained by settlement. The Court made clear that the term “net monetary recovery” was to be given its common meaning. (Goodman, supra, 47 Cal.4th at 1333 citing Wakefield v. Bohlin (2006) 145 Cal.App.4" 963, 992 (dis. Opn. of Mihara, J.).) And the common meaning of “recovery” is to recover by verdict, decree, or judgment. (Random House Unabridged Dictionary 1613 (2nd ed. 1993) [“Recovery” is “the obtaining ofright to something by verdict or judgment of a court of law”); Black’s Law Dictionary 1302 (3 ed. 2004) [defining recovery as ‘an amount awardedin or collected from a judgment or decree”]; Gebelein v. Irvin (1992) 231 Ill. App. 3d 1011, 1014 [defining “recovery” as ‘‘‘/t/he restoration or vindication 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]); Gallagher v. Manatee County (Fla. App. 2006) 927 So.2d 914, 917 ["Recovery means ‘the obtaining of right to something by verdict or judgmentof a court of law”’J.) A plaintiff who obtains money by settlement does not gain or recover money by judgmentor “by legal process”; a plaintiff who obtains money by settlement obtains money by way of voluntary agreement with an opposing party. Accordingly, settlement sums do not fall within the common meaning ofthe term “net monetary recovery.” The Chinn court’s holding that the term “net monetary recovery” excludes settlement proceeds is consistent with legislative intent and case law, and creates a clear, uncomplicated framework within which to analyze costs issues. The Court of Appeal’s ruling in this case undercuts. this framework and creates decisional conflict that will lead to confusion and disputes overcosts. 2. The Court of Appeal’s finding that settlement proceeds qualify as a “net monetary recovery”will diminish the clarity of Section 1032, lead to disputes over the resolution of costs issues, and will increase the workload of an already overburdened and underfunded judiciary. The Court of Appeal’s ruling and its reasoning permit parties who obtain settlement sums to claim costs as a matter of right. The holding creates conflict not just within the case law, but within Section 1032 itself, as it 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 creates a lack of clarity in the law that will lead to disputes over costs issues. And these disputes will further complicate the law as -10- courts attempt to choose one prevailing party in circumstances where the case law permits two. The Court ofAppeal’s holding and its reasoning are broad and create decisional conflict not just with Chinn but also with the Supreme Court’s decision in Goodman. Withoutspecific 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 it never analyzed whether settlement proceeds standing alone constitute a “net monetary recovery”; rather, the Court analyzed whether settlementoffsets affected the determination of whether a party had a “net monetary recovery”at trial. These are two wholly separate issues and conflating them leads to conflicting results. Doing so means that at the same time the Court in Goodmanheld that settlement offsets prohibited the plaintiff in that case from being a party with a “net monetary recovery,” the plaintiff could claim, based onthereceipt of settlement proceeds, that it was the party with a net monetary recovery. In fact, as explained above, 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 judgmentitself and does not take into account overall success of the plaintiff through settlement. As further support for its position, the Court of Appeal stated that “Tujnder the pre-1986 version of section 1032, case law established that a settling party could be awarded costs even if the settlement agreementis silent as to costs.” (Typed opn.pp. 11-12, 19.) But this is not supported by the cited cases. The cases cited involve consentjudgments. Rappenecker v. Sea-Land Service, Inc. (1979) 93 Cal.App.3d 256, involved the -ll- permissibility of allowing costs after a plaintiff accepted a Section 998 offer by a defendantto allowjudgment to be taken. Thecourt held that the resulting judgment could result in a costs award to the plaintiff. Nothing about this ruling is contrary to Chinn because nothing in Chinn prohibits a plaintiff from obtaining costs after gaining a favorable judgment.' The Court of Appeal’s rule that settlement proceeds qualify as net monetary recovery is also inherently difficult to apply. In reaching its conclusion, the Court of Appeal distinguished between settlements “accomplished through legal process” and other settlements. (Typed opn. p. 16.) The Court of Appeal foundthat in this case, the settlement was obtained through legal process, and therefore amounted to a net monetary recovery, because it was achieved on the day oftrial 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, which refer to ‘‘‘/t/he restoration or vindication of a right existing in a person, by the formal judgment or decree of a competent court.... in contrast to voluntary payment.’” (Gebelein, supra, 231 Ill. App. 3d at 1014 (emphasis added).) The Court of Appeal’s definition of “net monetary recovery,” moreover, will also 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 other settlements for purposes of determining costs. ‘In Folsom v. Butte County Assn. of Governments (1982) 32 Cal.3d 668, 677, another case cited by the Court of Appeal, the court followed Rappenecker and only reaffirmed that costs and fees may be allowed following entry of a consent decree or consent judgment. (Folsom, supra, 32 Cal. At 677-678.) -12- Ultimately, the Court of Appeal’s decision rests on its conclusion that the Janguage in Section 1032 contains “nothing [that] requiresa trial court to disregard a settlement payment as a ‘net monetary recovery.’” (Typed opn. p. 19) This ruling has broad implications that are contrary to legislative intent and case law. If, as the Court of Appealheld, “nothing in section 1032 requires a trial court to disregard a settlement payment as a ‘net monetary recovery,”” then a plaintiff in receipt of settlement funds can claim prevailing party status as a party with a net monetary recovery even when the defendantobtains a dismissal. In fact, the Court of Appeal makes this clear in its ruling. (Typed opn. p. 19 [“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’| [emphasis added] and Typed opn. pp. 19-20 [“[a]lthough Employer obtained a dismissal for its payment, ... we see no reason why this settlement payment does not fall within Goodman's interpretation of ‘net monetary recovery.’”].) This holding therefore leads directly to the possibility of two settling parties being prevailing parties as a matter of right. Andthis, in turn, will lead to disputes over the issue of costs and further decisional conflicts as courts grapple with the conflict created by this decision. In the instant action, for example, to find that there was only one prevailing party, the Court of Appeal was forced to create decisional conflict in addition to that created with Chinn. Theplaintiff in this case received no redress from the trial court and the Hospital obtained a judgmentthat specifically provided that “(plaintiff recover nothing from defendant.” This made the Hospital a prevailing party under Section 1032 because, underSection 1032, a defendantis a prevailing party as a matter of right whenthe plaintiff recovers no “relief” against the defendant. Under existing case law, the term “relief” asit is used in Section 1032 refers to -13- “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].) Because of the Court of Appeal’s ruling that a plaintiff who obtains settlement proceeds is a prevailing party, the Court of Appeal faced a situation in which there were two potential prevailing parties: the plaintiff who obtained settlement proceeds and the Hospital, based on plaintiff's failure to obtain any relief from the trial court. To resolve this conflict, and find that there was only one prevailing party, the Court of Appeal was forced to create further decisional conflict by ruling that the receipt of settlement proceeds constitutes “relief”? for purposes of Section 1032. (Typed opn.p. 26) The Court of Appeal’s ruling broadly permits parties who obtain settlement proceedsto claim costs as a matter of right. This ruling creates decisional conflict and creates fertile soil for more legal conflicts and more disputes over the issue of costs. Supreme Court review of this decision is necessary to resolve the dispute between this case and the Chinn case and to ensure clarity in the law with respect to costs procedures. 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 opinion in this case directly conflicts with Chinn and provides the basis for two parties to a settlement to assert prevailing party status as a matter of right. As such, the opinion creates a decisional conflict that will complicate the resolution of costs matters both in the courts and between parties -14- seeking to settle cases. And the disputes generated by this conflict will further burden an already overburdened and underfunded court system. Supreme Court review is necessary to resolve the decisional conflict the Court of Appeal’s decision creates, to help effectuate the Legislature’s intent of simplifying and clarifying costs procedures, and to aide in the administration of justice and ensure that court congestion is minimized. For these reasons, and those set forth above, the Hospital respectfully requests the Court grantthis petition. Dated: June 11, 2014 FENTON & By: Christopher E. Panetta Attorney for Defendant / Respondent/ Petitioner COMMUNITY HOSPITAL OF THE MONTEREY PENINSULA -15- 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 4,536 words. Dated: June 11, 2014 FENTON & KELLER Christopher E. Panetta 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 MAUREENDESAULLES, H038184 (Monterey County Plaintiff and Appellant, Super. Ct. No. M85528) V. Court of Appeal - Sixth App. Dist. COMMUNITY HOSPITAL OF THE f= E b. [= ie MONTEREY PENINSULA, 7 OS 8 7 MAY > Defendant and Respondent. ” AY” 2014 MICHAELJ. YERLY, Clerk By DEPUTY I. INTRODUCTION Dismissal of a civil complaint is said to be voluntary when requested by the plaintiff and involuntary when ordered by the court. A dismissal may bepartial, as in this case, where plaintiffMaureen 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 by stipulation or involuntary when entered by the court after either a judicial decision or a jury verdict. ‘When an action ends in any ofthese ways, if the parties have not otherwise agreed on who will pay the costs oflitigation, one party may be deemed the prevailing party entitled to mandatory costs. In this appeal by Employee challenging a costs award to Employer, both sides claim entitlement to mandatory costs. Mandatory costs are governed by Code ofCivil Procedure section 1032.’ A s revised in 1986 (Stats. 1986, ch. 377, §§ 5,6,p. 1578), section 1032 states: “(b ) Except as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.” Section 1032, subdivision (a)( 4) (subdivision (a)(4)) provides a nonexclusive definition of “ ‘prevailing part y,’ ” listing four categories. Three ofthe categories apply only to defendants, namely “a defen dantin whose favor a dismissal is entered, a defendant where neither plaintiff nor defen dant obtains any relief, and a defendant as against those plaintiffs who do not re cover any relief against that defendant.” (Subd. (a)(4).) Only one category — “the party with a net monetary recovery” — is applicable to both defendants andplaintiffs. Employee characterizes Employer’s settlement paymentto her as a net mo netary recovery, while Employer says that settlement payments must be disregarde d under Chinn v. KMR Property Management(2008) 166 Cal.App.4th 175 (Chinn). Wit hout separately appealing, Employer contends that it is a defendant in whosefavor a dism issal was.entered, and also contendsthat, as the judgment provides that Employ ee “recover nothing,”it is a defendant against whom Employee recovered norelief. Thetrial court awarded costs of $12,73 1.92 to Employerin the exercise ofits. discretion, as a trial court may do when costs are not mandatory. “When any p arty recovers other than monetary relief and in situations other than as specified, the ‘prevailing party’ shall be as determined by the court, and under those circumst ahces, the court, in its discretion, may allow costs or not ... .” (Subd.(a)(4).) This appeal requires us to determine whethereither party was entitled to mandatory costs. As we will explain, the case ended in three stages withouta trial o n the merits. Employer did not obtain a favorable dismissal of the action, but did obt ain a 1 Unspecified section references are to the CodeofCivil Procedure. judgment denying Employee relief, However, Employerob tained 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 or der awarding costs to Employer and denying costs to Employee, determiningthat, s ince the parties’ settlement wassilent regarding costs, Employer’s payment of $23,500 t riggered mandatory costs as a “net monetary recovery” underthe plain language ofthe statute. Il. PROCEDURALHISTORY A, PREJUDGMENT PROCEEDINGS Employee washired in February 2005 as a part-time patient business services registrar. Employee began complaining about her work shi ft assignments to the | emergency room in June 2005. Employer placed Employee on a leave of absence im January 2006 and terminated her employmentin Jul y 2006. In July 2007, Employeefiled a complaint alleging that Emp loyer had: (1) failed to accommodate Employee’s physical disability or medical condition (susceptibility to infection as a result of cancer); (2) retaliated against Em ployee for exercising her rights under California’s Fair Employment and Housing Act, (3) b reached implicit conditions of an employment contract; (4) breached an implied covena nt of good faith and fair dealing; (5) negligently and (6) intentionally inflicted emoti onal distress; and ay (7) wrongfully terminated Employee in violation of p ublic policy. On August 1, 2008,the trial court entered a nine-pag e order ruling on Employer’s alternative motions for summary judgment or summar y adjudication. The court denied summary judgment, but granted Employer’s motion for sum mary adjudication ofthe first cause ofaction alleging a failure to accommodate. Thetria l court foundtriable factual issues as to the remaining causes of action and denied s ummary adjudication ofthose claims. Based on the summary adjudication, Employerfiled several in limine m otions. After hearing argument on September 2, 2008, the trial court orally granted motionsin limine numbered1, 8, and 11, specifically precluding argument by E mployee “that [Employer] failed to accommodate [Employee’s] disability or to engage the interactive process or that [Employee] was harassed, discriminated orretaliated against in connection[] with any claimsoffailure to accommodate orfailure to eng age the interactive process,” or “regarding fEmployee’s] safety complaints, reta liation on union issues ... ” and excluding “evidence ofdiscrimination or failure to a ccommodate or retaliation claims against [Employer] based on failure to accommodate or engage in the interactive process or make complaints aboutfailure to accommodate or engage in the interactive process.” Atthe conclusion of thoserulings and before a jury panel was ca lled, the parties placed the following settlement on the record: “[I]n consideration for dis missal with prejudice ofthe two claims ofbreach of contract and breach of covenant , Defendantwill pay Plaintiff within 10 days $23,500.” Defense counsel “will pr epare a judgment on the remaining claims which references the dismissal with prejudice and which preserves the right of appeal of the rulingsofthis court on the remaining causesof action... 2” “fTThe parties will not file any motions or memoranda for costs or attorney fees[,] holding off " until the completion ofthe appeal ... .” BR. TaeJUDGMENTAND PosT-JUDGMENT Costs CLAIMS i. On October 6, 2008, pursuantto the settlement, Employee fil ed a request for dismissal with prejudice of the breach of contract and breach of covenant claims. On January 6, 2009,the trial court entered an amended judgment which s tated: “Having considered the arguments, oral and written, of all the parties, the reco rds andfile herein, and the pre-trial motions and oppositions thereto filed herein, and havi ng granted defendant’s Motion in Limine No. | to Preclude Any Argument That Defendant Failed to Accommodate Plaintiffs Disability or to Engage in the In teractive Process, or That PlaintiffWas Harassed, Discriminated or Retaliated Against in Connection Therewith, the Court finds thatplaintiffwill be unable to introduce any evidence that would establish plaintiff's second cause of action for retaliation, her fifth and sixth ca uses of action for intentional and negligentinfliction of emotional distress, or her sev enth cause of action for wrongful termination in violation ofpublic policy; and, [{] The Court having previously granted summary adjudication ofPlaintiff's first caus e of action for failure to accommodate; and, [J] The parties having settled plaintiff's thi rd cause of action for breach ofimplied in fact contract and fourth cause[] of act ion for breach ofthe covenant of good faith and fair dealing, IT 1S HEREBY ADJUDGED that, [{] 1. Plaintiffrecover nothing from defendant: and [{] 2. The Parties shall defe r seeking any recovery of costs and fees on this Judgment coming final after the timefo r all appeals.” Employeefiled an appeal from the amendedjudgment, and this court affirmed the judgmentin an unpublished opinion filed on June 29, 2011 2 After this court issued a remittitur, Employer filed a mem orandum in thetrial court seeking costs of $11,918.87. Employee filed a memoran dum seeking costs of $14,839.71 and a motionto strike Employer’s memorandum,ass erting that Employer was not the prevailing party. Employer responded with a motionto strike Employee’s memorandum,asserting that Employee was not the prevaili ng party. Each sidefiled opposition to the other’s motion to tax costs. After a hearing, thetrial court stated, “The Court beli eves it can exercise its discretion in determining which party did prevail, andbecause [Emp loyer] prevailed on significant causes of action and thereafter entered into a settleme nt on the remaining 2 On our own motion we have taken judicial notice ofthe reco rd in the previous appeal. (DeSaulles v. Community Hospital ofthe Monterey P eninsula (June 29, 2011, H033906) [nonpub. opn.].) costs, the Court finds that [Employer] is the pre vailing party.” Thetrial court awarded Employer costs of $12,731.92, which added $81 3.05 to the amount sought in Employer’s memorandum forcosts ofthe first appeal. The tria l court denied Employee’s request for costs. I. STATUTORY SCHEME The California Supreme Court has summarizedthe statutory scheme for awarding costs to the prevailing party. “Unless otherwise pro vided by statute, a ‘prevailing party’ is entitled to recover costs in any action or pro ceeding ‘as a matter of right.’ (§ 1032, subd. (b); § 1033.5, subd. (a)(10)(A)-(C) [allo wable costs under § 1032 include attorney fees authorized by contract, statute, or law].) ‘Pre vailing party’ for purposes of section 1032(a)(4) is defined as including: ‘[1] the party wi th a net monetary recovery, [2] a defendant in whose favor a dismissalis entered, [3] a defendant where neither plaintiff nor defendant obtains anyrelief, and [4] a defen dant as against those plaintiffs who do not recoverany relief against that defendant.’ Ifa p arty recovers anything other than monetaryrelief and in situations not specified a bove, a trial court shall determine the prevailing party and use its discretion to determ ine 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 of right; the trial cou rt has no discretion to order each party to bear his or her own costs’].)” (Goodmanv. Lo zano (2010) 47 Cal.4th 1327, 1333 ‘y (Goodman)J 3 Thetrial court did notstate it was exercising its discretion under Chinn, as Employee claimed at oral argument. 4 Section 1032 states: “(a) As used in this sectio n, unless the context clearly requires otherwise: [{] (1) ‘Complaint’ includes a cross-complaint. [J] (2) ‘Defendant’ includes a cross-defendant or a person against w hom a complaint is filed. [J (3) ‘Plaintiff includes a cross-complainant or a p arty whofiles a complaint in intervention. [9] (4) ‘Prevailing party’ includes t he party with a net monetary recovery, @ defendant in whose favora dismissal is entered, a defe ndant where neither plaintiff nor (Continued) The parties agree that underthe currentstatute, a trial court has no discretio n 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, 1375-137 6; Michell v. Olick, supra, 49 Cal.App.4th 1194, 1197-1198; see Goodman, supra, 47 Cal. 4th 1327, 1338, fh. 4; Lincoln y. Schurgin (1995) 39 Cal.App.4th 10 0, 105 [costs discretionary when noparty qualifies for mandatory award].) Accordingly, i n ruling ona request for costs a trial court must determine whether an awardis mandato ry based on one andonly one party “prevailing” according to a statutory d efinition. IV. APPEALABILITY “TS]ince the question of appealability goes to our jurisdiction, we are dut yboundto 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 appealab leif it is not an interlocutory judgment. Subdivision (a)(2) provides that “an order madeafter a judgment made appealable by paragraph (1)”is appealable. Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644 (Laki n) explained at page 651, “Despite the inclusive language of Code of Civil Procedure section 90 4.1, subdivision (b), not every postjudgment orderthat follows a final appealab le judgmentis 4a defendantobtains any relief, and a defendant as against those plaintiffs who do not recoverany relief against that defendant. When any party recovers other tha n monetary relief and in situations other than as specified, the ‘prevailing party’ shall be as determined by the court, and under those circumstances, the court, in i ts discretion, may allow costs or not and, if allowed may apportion costs between the part ies on the same or adverse sides pursuantto rules adopted under Section 1034. [{] (b) Except as o therwise expressly provided by statute, a prevailing party is entitled as a matter of right t o recover costs in any action or proceeding. [{]} (c) Nothing in this section shall prohibit p arties from stipulating to alternative procedures for awarding costs in the litigation pursuant to rules adopted under Section 1034.” _ appealable. To be appealable, a postjudgmentorder mus t satisfy two additional requirements.” (Fn. omitted.) One requirement“is that the issues raised by the appeal from the order mustbe different from those arising from an a ppeal from the judgment.” (Lakin, supra, at p. 651.) The other requirementis the postj udgment order must “affect the judgmentorrelate to its enforcemen ” (Id. at p. 654.) T he court explained that an “order denying attorney fees is not preliminary to futur e proceedings and will not become subject to appeal after a futurejudgment. Rather, it resembl es the orders we have held appealable. It affects the judgmentor relates to its enforce mentin thatit finally determinesthe rights ofthe parties arising from the j udgment.” (Zbid.) In finding the - order before it appealable, Lakins found support in cases th at had “expressly or impliedly held appealable similar postjudgment orders concerningcos ts, interest, and attorney fees,” including Norman J. Krug RealEstate Investments, Inc. v. Praszker (1990) 220 Cal.App.3d 35 (Praszker). (Lakins, supra, at p. 654.) The court in Praszkerflatly stated, “A postjudgmentorder which awards or denies co sts or attorney’s feesis separately appealable.” (Praszker, supra, at p. 46. ) In Nguyen, supra, at page 436, this court stated, “Under the ‘one final judgment’ rule, an order or judgmentthatfails to dispose ofall claims between the litigants is not appealable under Codeof Civil Procedure section 904.1, sub division (a). ‘[A}n appeal cannot be taken from ajudgmentthatfails to complete the di sposition ofall the causes of action between the parties even ifthe causes of action dispos ed ofby the judgment have been orderedto be tried separately, or may be characterized as “separate and independent” from those remaining.’ (Morehart v. County ofSanta Barbara (1994) 7 Cal.4th 725, 743... .)” Werequested supplementalbriefing discussing the applicabi lity ofthe final judgment rule and the decision in City ofGardena v. Rikuo Corp. (2011) 192 Cal.App.4th 595 (Rikuo Corp.). Rikuo Corp. discuss ed the requirementthat a final judgment must completely dispose ofthe matter in contro versy. The judgmentin that 8 case appeared to do so, as “the consentjudgment expressly provide[d] that it was intended to resolve all ofthe issues in controve rsy between the parties, including the mannerin which disputes overthe cost ofremedia tion would be resolved.” (Jd. at p. 603.) In settling an eminent domain case, the part ies agreed that the trial court retained jurisdiction to apportion expenses ofremediating c ontaminated property. (Id at pp. 598-599.) The property owner Jater filed an a ppeal from a partial determination of expenses. The appellate court determined that th e order was not appealable as a postjudgment order. A postjudgment order is ap pealable whenit follows a judgment made appealable under section 904.1, subdivi sion (a)(1). (Id. at p. 601.) However, the judgment was a consent judgment that was not a ppealable. (Jd. at pp. 600-601.) The appellate court concluded, alternatively, that even if the judgment was appealable becauseit left open an unsettled issue o fremediation expenses for the court to determine, then the challenged order was not a ppealable because the judgment was not yet final. “[E]ven after entry ofthose orders, t here were issues remaining between the parties concerning further costs ofremediation and the entitlement to the remainder of the deposit.” (Id. at p. 602.) Employer argues that Employee seeks recognition a s prevailing on her contract claims, which were resolved by settlement. Be cause Employee consented to dismiss these two causes of action, “no appeallies from a c osts award based on a nonappealable consentjudgment.” Employer contendsthatin settl ing her contract claims, Employee “settled all issues, including costs issues, con cerning those claims.” Employee points out that Rikuo Corp. was dis tinguished by Ruiz v. California State Automobile Association Inter-Insurance Bure au (2013) 222 Cal.App.4th 596 (Ruiz) because the settlement agreement in Ruiz did not d ispose ofall issues, but “expressly left open theamounts of the attorney fees and incentiv e payment, and provided that those amounts wouldbe set by thetrial court, up to a spe cified maximum.” (Id. at p. 606.) Ruiz concluded that Rikuo Corp. was distingui shable “where the Agreement expressly 9 contemplated further court proceedings anda separate ruling on the attorney fee and incentive paymentissues ... .” (Ibid.) "We concludethat oursituation is like Ruiz and not Rikuo Corp. Employee agreed to dismiss her remaining two contract claims in exchange for a settlement payment in order to facilitate an appeal ofthe court’s rulings on her remaining claims. The settlement did not disposeof all of Employee’s claims. Thesettlement further contemplated presentation of claimsfor costs andfees to the trial court upon conclusi on ofthe earlier appeal. We properly treated the original judgment as appeala ble and the later order on competing costs claimsis also appealable. V. ANALYSIS When a costs award or the amount ofcosts is not mandatory but discretionary,the award is reviewed for an abuse ofdiscretion. However, whether the und isputed facts mandate a costs award is a question of law for de novo review. (Goodman , supra, AT Cal.4th 1327, 1332; Kim v. Euromotors West/The Auto Gallery (2007) 149 Cal.App.4th 170, 176.) As both sides claim entitlement to mandatory costs, we first consider whe therthe facts ofthe case fit squarely into any ofthe statutory definitions of “prevailing pa rty.” A. EMPLOYEE’S ENTITLEMENT TO MANDATORY COSTS Employee argues on appeal that she is due mandatory costs because Employer ’s settlement payment of $23,500 qualifies as a “net monetary recovery.” 1. DOES A PARTY PREVAILWHENAN ACTIONIS SETTLED? Nothingin section 1032 indicates that there can be no prevailing party when an action has been dismissed or a judgment entered based on full or partial settlement. Section 1032 has no provision like that in Civil Code section 1717, subdivision (b)(2 ), concerning an award of attomey fees provided for by contract: “Where an ac tion has 10 been voluntarily dismissed or dismissed pursuantto a settlementofthe case, there shall be no prevailing party for purposes ofthis section.”* Underthe pre-1986 version of section 1032, case law established thata settling party could be awarded costs even if the settlement agreementis silent as to costs. The leading case is Rappeneckerv. Sea-Land Service,Inc. (1979) 93 Cal.App. 3d 256 (Rappenecker), which concluded that plaintiffs could be awarded costs after obtaining compromise judgments under section 998.° The appellate court reason edthat a compromise judgmentstill qualified as a judgment under former sectio n 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 agreementoperated “as a merger and bar of all preexisting claims, depriving the trial court ofjurisdiction to award co sts and statutory attorney fees. (Code Civ. Proc., §§ 1032, 1021.5.)” (Folsom, supra,a t 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, 6 14), “codified the holding ofInternational Industries, Inc. v. Olen [(1978)] 21 Cal.3 d 218 [Olen].” (Hsu v. Abbara (1995) 9 Cal.4th 863, 873.) Olen, supra, 21 Cal.3d 218 re jected “any rule that permits a defendant to automatically recover fees whenthe plaintiffh as voluntarily dismissed beforetrial” because there can be diverse reaso nsfor a dismissal. (id. at p. 224.) “Although a plaintiff may voluntarily dismiss before tri al because he learns that his action is without merit, obviously other reasons may exis t causing him to terminate the action. For example, the defendant may grant plaintiff— shor t oftrial — all or substantially all relief sought, or the plaintiffmay learn the defendant is inso lvent, rendering any judgment hollow ... . Moreover, permitting recovery of atto rney fees by defendantin all cases ofvoluntary dismissal before trial would encourag e plaintiffs to maintain pointless litigation in moot cases or against insolvent defendants to avoid liability for those fees.” (Jbid.) 6 The Legislature has made special provisionsin section 998 to encoura ge settlement byrestricting costs recovery when an offer of compromise is u nreasonably rejected, Section 998 authorizes the makingof a settlement offer by either side and provides consequencesfor the rej ection of such an offer. 11 fn. omitted.) Citing Rappenecker, Folsom stated that “costs are allowed , absent the parties’ express agreementto the contrary, following entry of a consent decree.” (id. at p. 677.) “Therefore, absent affirmative agreement ofthe parties to the cont rary, the trial court retains jurisdiction after the filing of a compromise agreementto ent ertain a cost pill.” (Id, at p. 679.) While these cases establish that costs can be awarded after a settlementtha t is silent about costs, nothing in these cases discusses whether such costs ar e mandatory or discretionary. Cases after the 1986 revision of section 1032 do not resol ve whether a settlement-paymentqualifies as a “net monetary recovery”for purpose s of a mandatory award. | Section 1032, subdivision (c) authorizes parties to make their own ag reements regarding the responsibility for costs. Bynegative implication, w hen there is no agreementonthis topic, the other provisions of section 1032 for a costs awa rd apply. 2. Is “NET MONETARY RECOVERY”LIMITED TO RECOVER Y BY JUDGMENT? The “net monetary recovery” definition ofprevailing party was addedin th e 1986 revision of section 1032. “[FJormer section 1032 provided that costs are al lowed for either a plaintiff or a defendant ‘upon a judgment in his favor’ in various spec ified — actions and, in other actions not specified, the trial court might awardco sts in its discretion. (Former § 1032, subds. (a)-(c), as amended by Stats. 195 7, ch. 1172, § 1, 4 7 In Folsom, supra, 32 Cal.3d 668, the settlement agreementdid not require a payment from the defendants to the plaintiff. Instead, it required govern ment agencies “to establish four transit systems.” (Jd. at p. 671.) Folsom did determine th at a party could be regarded as “successful”and entitled to attorney fees under sectio n 1021.5 (private attorney general theory) for enforcing an important public right b y way of settlement. (Jd. at pp. 681-687.) However,it is established that the tes t for a “‘successful party’”’ under section 1021.5 differs from the definition of a “ ‘prevailing p arty’” 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 formerstat ute did not expressly require a calculation ofthe net monetary recovery, case law h as long required assessing the “net result ofthe judgment” when a plaintiff and a defendant have each recovered on claims against the other. Shelley v. Hart (1931) 112 Cal.App. 231 (Shelley) wasthe 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 defendant cross-complained for nonpaymentofthe purchase price. (Id. at pp. 237-238.) The plaintiffwas awarded $1,500, while the defendant was awarded $2,500, yielding a net of $1,000 to the defendant, who was awardedcosts on that basis. Ud. at p. 24 3.)° 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 determine 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 thoughthetrial award was effectively reduced to zero due to . offsetting settlement payments from other defendants. In Goodman, home buyers sued for construction defects and eventually obtaineda trial award of $146,000 against the sellers, but a zero netjudgment due to $230,000 settlements received from the home 8 Thenet result ofthe judgmenttest was extended to where neither side prevailed at trial in Gerstein v. Smirl (1945) 70 Cal.App.2d 238, 240-241, and that opin ion was quoted with approval by Schraderv. Neville (1949) 34 Cal.2d 112, 115. MeLarand, Vasquez & Partners, Inc. v. Downey Savings & Loan Assn, (1991) 231 Cal-App.3d 1450 reviewed the legislative history of the 1986 revision of section 1032 and found no legislative intent to overturn Schrader or to change existing law. (Vasquez, s upra, at p. 1455.) 13 builder and other defendants being credited against the tria l award. Thetrial court concluded that the homesellers were prevailing parties enti tled to fees and costs. (Goodman, supra, at p. 1331.) The Court of Appeal agr eed, as did the Supreme Court. In expressly disapproving ofthe majority opinion in Wakefield , the high court reasoned: “‘The common meaning ofthe word “net”is “free f rom all charges or deductions”or “to get possession of: GAIN [sic].” (Merriam -Webster’s Collegiate Dict. (10th ed. 1993) p. 780 (Webster ’s).) The word “monet ary” 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 meaning ofthe phrase “the party with a net monet ary recovery”is the party who gains moneythatis “free from . . . all deductions.” [{] -A plaintiffwho obtains a verdict against a defendant thatis offset to zero by settlements wi th other defendants does not gain any moneyfree from deductions. Such a plaintiffgain s nothing because the deductions reduce the verdict to zero.’ (Wakefield, supra, 1 45 Cal.App.4th 963, 992 (dis. opn. ofMihara,J.).)” (Goodman, supra, 47 Cal. 4th 1327, 1333-1334.) The court noted that this interpretation is consistent with secti on 877. “Under section 877, subdivision (a), a plaintiff's settlement with a d efendant serves to ‘reduce the claims against’ the remaining codefendants. (§ 877, subd.( a),italics added; [citation].) ... Thus, any reduction for prior settlemen ts is made before the entry of judgment. [Citation.] ... Accordingly, when a plaintiff's pr ior settlement is mote than the award receivedattrial, the plaintiff ultimately reco vers nothing. [Citation.] In other words, the net recovery is zero.” (Goodman, supra, 47 Cal. 4th at pp. 1334-1335, fh. omitted.) Goodman considered the legislative history of the 1986 r evision and reasoned that the replacementofthe phrase “judgmentin his favor” with “ the party with a net monetary recovery” was intended to reject the results ofFerraro v. Southern Cal. Gas Co. (1980) 102 Cal.App.3d 33 (Ferraro) and Syversonv. Heitmann (198 5) 171 Cal.App.3d 106 14 (Syverson). (Goodman, supra, 47 Cal.4th 1327, 1335-1 337.) Goodman pointed outthat the history “did notrefer to the definition of a ‘prev ailing party.’ The legislative history reveals instead that at the time current section 1032 w as reenacted, the ‘existing statutes " dfid] not fully explain the concept ofthe “prevailin g party,”’ and that a ‘comprehensive definition’ was necessary to ‘further eliminate confusion. ’ (Rep.on Sen. Bill No.654, supra, at pp. 1, 3.)” (Goodman, supra, 47 Cal.4th at p. 1336.) “[WJhile section 1032’s legislative history does not specifically address t he precise question beforeus,it is nonetheless consistent with the conclusion that the mea ning of ‘net monetary recovery’ (§ 1032(a)(4)) is not controlled bythose cases con struing the prior version of section 1032.” (id. at p. 1337; fh. omitted.) The conclusion of Goodman wasthat the plaintiffwas not entitled to costs as a matter ofright, not that an award of costs to the plaint iffwas precluded by the statute. “Our holding today is simply that a plaintiffwhose dam age awardis offset to zero by a prior settlement does not categorically qualify as a prevai ling party (‘the party with a net monetary recovery”) as a matter of jaw.” (Goodman, supr a, 47 Cal.4th 1327, 133 8, fn. 4.) Goodmantreated a settlement paymentas a n offset against a monetary recovery in 9 Ferraro had held that a plaintiffmay obtain a favor able judgmentagainsta nonsetttling defendant for costs purposes even though the final judgment is reduced to zero byvirtue ofoffsetting payments by settling defen dants. In that case, a judgment of zero dollars in damages was entered following a j ury verdict of $91,081.12 in the plaintiffs’ favor due to deductions for previous settlem ents. (Ferraro, supra, 102 Cal.App.3d at p. 37.) As against the nonsettling de fendant, the plaintiffs “certainly were the prevailing party in the lawsuit and the fact that t he Gas Company did not haveto actually pay them any damages was due not to any deficiency in their case, but due to circumstances notdirectly stemming from the issues re gardingliability as litigated between the parties.” (Jd. at p. 52.) . Ferraro was followed by Syverson, in whichthe court a greed with the plaintiff “that, while he will not recover damages from defen dant, he received a favorable verdict with respectto liability, entitling him to costs.” (Syverson, supra, 171 Cal.App.3d at p- 112.) 15 ajudgment, but did not discuss whether the paymentitself quali fied the plaintiff as a prevailing party againstthe settling defendants. Ourfacts present legal issues not discussed in Goodman, butits an alysis ofthe " phrase “net monetary recovery”is nevertheless helpful. The cou rt's interpretation is broad enoughto include obtaining an amount ofmoney either by a favorable judgment or otherwise by legal process. At oral argument, Employer disputed that a settlement payment i s a recovery by legal process. In the circumstances ofthis case, when the partie s agreed on the day of trial to settle two causes of action and stipulatedto settlement “orally before the court” (§ 664.6), we regard the settlementas accomplished throughl egal process. We need not speculate about settlements in dissimilar circumstances. 3, THE SETTLEMENT PAYMENT HERE QUALIFIES AS A NET MONETARY RECOVERY In this case, Employer’s settlement payment may be regarded as Employee’s net monetary recovery, while Employer argues that it is due ma ndatory costs for obtaining a partial dismissal in its favor in exchangefor its payment and la ter a judgment denying Employeeanyrelief on the remaining causes of action. We agree with the Second _ District Court ofAppeal in Chinn, supra, 166 Cal.App.4th 17 5 that the Legislature can not have intended to identify both parties as prevailing and due mandatory costs, as this would lead to an unreasonable, ifnot absurd, result. (7d. at p. 188.) Twoissues.were presented on appeal in Chinn after a tenant had dismiss ed with prejudice her tort claims 0 Section 664.6 provides: “Ifparties to pending litigation stipu late, in a writing signed by the parties outside the presence ofthe court or orall y before the court, for settlement ofthe case, or part thereof, the court, upon motion, m ay enter judgment pursuantto the terms ofthe settlement. If requested byth e parties, the court may retain jurisdiction over the parties to enforce the settlement until perf ormancein full ofthe terms of the settlement.” 16 against the property manager and property owner of her apartment complex in ex change for their settlement payment to her of $23,5 00.1! (Id. at p. 181.) One was whether the trial court erred in denyingthe tenantattorney fees as the prevailing party underherle ase. The appellate court reversed and remanded for a determination “whetherthere isa prevailing party for the purpose of an award of attorney fees based on a pragmati c assessmentofthe extent to which [the plaintiff and defendant] realized their ob jectives throughthe settlement.” (/d. at p. 193.) The other issue in Chinn, supra, 166 Cal.App.4th 175 was whetherthe tri al court erred in not awarding the tenant enough costs as the prevailing party. The appellate c ourt concluded that the defendants were actually the prevailing parties under section 1032 and due a mandatory costs award. After observing the absurdity of awarding mandato ry costs to both sides, the court reasoned that it was not a situation other than as specifi ed. “We recognizethat ‘in situations other than specified,’ the trial court has discretion to awar d costs under section 1032. However, a net monetary recovery and a dismiss al in the defendant’s favor are notsituations other than specified; they are both spec ified situations. Ifthe Legislature had intended more than one party to qualify as a prevaili ng party under the mandatory cost award provision,it easily could have provided for thet rial court to exercise discretion to award costs in the event that more than one part y qualified as a prevailing party.” (Chinn, supra, at p. 189.) Ay 11 The settlement in Chinn was coincidentally the same amountas in our case. 2 tp reaching this conclusion, Chinn, supra, 166 Cal.App.4th at page 18 9 disagreed with dictum in On-Line Power, Inc. v. Mazur (2007) 149 Cal.App.4th 107 9 (Mazur). In a case that was remanded for other reasons, Mazurdirected the trial court t o exercise its discretion to determinethe prevailing party when “both parties achie ved” prevailing party status undersection 1032, thus arguably falling “into the ‘situat ion other than as specified’ category ....” (Id. at p. 1087.) 17 Chinn, supra, 166 Cal.App.4th 175 resolved the conflict by “[c]onstruing th e term ‘net monetary recovery’in context,” concluding that “the Legisl ature did not intend to include settlement proceedsreceived by the plaintiff in exchange for a dis missal in favor of the defendant. The definition ofprevailing party provided in section 1032 requiresthe court to award costs as a matter ofright in specified situations. By pr ecluding consideration of settlement proceeds as a ‘net monetary recovery’ when a dismissalis entered in favorofthe defendant, only one party qualifies for a mandatory award of costs, consistent with the prior law.” (d. at p. 188.) The court concluded that the property owner and management company,“as defendants with a dismi ssal entered in their favor, werethe prevailing parties for the purposes of an award ofcosts as a m atter ofright under section 1032.” (Id. at p. 190.) As indicated, Chinn describedits interpretation ofthe current version o f section 1032 as a continuation of law existing under the eatlier version o fthe statute. The court stated, “Thelegislative history of Senate Bill No. 654 (1985-1986 Reg , Session) doesnot indicate any changein the law to consider settlement proceedsor p rovide costs to a plaintiff after a dismissal.” (Chinn,supra, 166 Cal.App.4th 175, 189 .) After reviewing someofthe legislative history, the court reiterated, “Nothing in the ba ckground materials accompanying the proposed amendment mentioned settlement pr oceeds or suggested the definition of ‘prevailing party’ in section 1032 would changeexist ing law to permit an aa award of costs to a plaintiff following a dismissal.” (dd. at p. 190.) When presented with a situation similar to our case, Chinn reconciled the competing claims by simply deeming settlement proceeds disqu alified as a net monetary recovery where a dismissal was also involved. While we agree that the L egislature did notintend to identify opposingparties as both due mandatory costs, we cannot subscribe to Chinn’s other reasoning. . Employer relies on Chinn as requiring the trial court to discount th e amount Employee received from Employer by way of settlement. Emplo yer contends,like the 18 defendants in Chinn,it obtained a favorable dismissal. A s we will explain, however,the partial dismissal in this case does not establish Employ er as a prevailing party. Our case is factually distinguishable from Chinn. But more fundam entally, we disagree with Chinn’s view that a settlement payment can never qualify as a net monetary recovery undersection 1032, subdivision (a)(4) when an actio n is dismissed. Contrary to Employer’s argument, nothing in section 1032 requires a trial court to disregard a settlement payment as a “net monetary recovery.” Chinn implied that prior law precludeda plaintiff's recov ery of costs following a dismissal. This position overlooked the holding ofRappe necker, which upheld costs awardsto plaintiffs based on their recovery of sett lement payments pursuant to compromise judgments. Wenote, however, that Chinn d id rely on Rappenecker among other cases in reversing a denial of attorney fees to the pla intiff, concluding that the plaintiffmight be deemed a prevailing party for purpos es of attorney fees. (Chinn, supra, at pp. 184-185.) . Two years after Chinn, Goodman observed that, while ther e is no clear indication ofthe legislative intent regarding settlement payments,u se ofthe phrase “net monetary recovery” did reflect an intent to change the law regard ing the impact of settlement payments on a plaintiff's net monetary recovery from a nonsetttling defendant. While Goodman did not mention Chinn, webelieveit implici tly rejected Chinn’s narrow construction of “net monetary recovery”as not including set tlement payments. ~ Whencosts are sought under section 1032, subdivisi on (a)(4), a trial court must determine whether one and only oneparty fits a statutory defi nition of prevailing party. From Employee’s perspective, though one ofher seve n causes of action succumbedto a partial summary judgment and four more causes of action we re eliminated by motionsin limine, she was ultimately paid $23,500 to dismiss her re maining two causes ofaction on the eve oftrial. Although Employer obtained a dismissal fo r its payment, except for the unpersuasive reasoning of Chinn, we see no reason whyth is settlement payment does not 19 fall within Goodman’s interpretation of “net monetary recovery.” Acc ordingly, the trial “court should have recognized Employeeas entitled to mandatory costs und er the statutory definition of“prevailing party.” B. EMPLOYER’S ENTITLEMENT TO MANDATORY Costs 1. Dip EMPLOYER OBTAIN A FAVORABLE DISMISSAL? Employer has insisted in briefing andoral argumentthat it is due manda tory costs as “a defendant in whose favora dismissal is entered” (subd. (a)(4)) and that 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 dismissal with prejudice ofthe two remaining causes of action after thetrial court eliminated her other fi ve causes of action in two stages.” On August 1, 2008, the trial court summarily adjudicated the failure to accommodate cause of action and denied summary adjudication ofth e remaining causes of action. That ruling did not purport to dismiss that cause of action. On September 2, 2008,thetrial court granted motions in limine precluding evidence and argument 13 Voluntary dismissals are authorized by section 581 in the following situations. “(b) An action maybe dismissed in any ofthe following instances: “(1) With or without prejudice, upon written request ofthe plaintiffto the clerk, filed with papersin the case, or by oral or written request to the court at any time before the actual commencementoftrial, upon paymentofthecosts, i f any. “(2) With or without prejudice, by any party upon the written con sentofall other parties. “TD “(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 prejudiceprior to the actual commencementoftrial.” 20 concerning variousclaims, but the order sustaining the motionsin limine did not purport to dismiss the other four causes of action. . Section 581 lists a numberofsituations authorizing invol untary dismissal of an action or cause ofaction, not including summary adjudi cation or a successfulin limine motion.!® In response to our request for supplementalbrief ing, Employer accurately 14 The granting of the motions in limine was tantamo unt to a summary adjudication on the four causes of action for retaliation , intentional and negligent infliction of emotional distress, and wrongful term ination. (Cf. R & B Auto Center, Inc. v. Farmers Group, Inc, (2006) 140 Cal.App.4th 327, 35 0.) This court has previously cautioned against using in limine motions as a substitut e for other dispositive motions described in the Code of Civil Procedure. (Amtower v. Photon Dynamics, Inc. (2008) 158 Cal.App.4th 1582, 1593.) As noted in our pri or opinion, Employee has not made an issue ofthe procedure employed in this case. (DeSaull es v. Community Hospitalofthe Monterey Peninsula, supra, p. 75, fn. 29.) 5 Section 581 provides for involuntary dismissals by the court in a number of situations. The complaint may be dismissed when a dem urrer is sustained withoutleave to amend (§ 581, subd. (f)(1)),a complaint is not amen ded within the time allowedafter demurrer was sustained with leave to amend (§ 581, subd. (f)(2)), or a motion to strike the entire complaint is granted (§ 581, subds. (£ 3), (4)). The complaint may be dismissed entirely or as to a def endant when the forum is inconvenient (§§ 581, subd. (h), 418.10, subd. (a)(2)) ,the plaintiffhas not advanced the litigation within the time periods required by Chapt er 1.5 (beginning with section 583.110) (§ 581, subd. (g)), or a party fails to appear fortrial (§ 581, subd. (2). Alternatively, the “ ‘action’ ” may be dismissed whenth e plaintiff has not advanced thelitigation within the time periods requir ed by Chapter 1.5 (beginning with section 583.110) (§ 581, subd. (b)(4)) or any party fails to appear for trial (§ 581, subds (b)(3), (5). " Dismissal is mandatory in two cases. “(d) Except as oth erwise provided in subdivision (e), the court shall dismiss the complaint, or any cause of action assertedinit, in its entirety or as to any defendant, with prejudice , when uponthe trial and before the final submission ofthe case, the plaintiff abandonsi t. “(e) After the actual commencement oftrial, the court sh all dismiss the complaint, or any causesofaction asserted in it, in its entirety or as to any defendants, with prejudice, if the plaintiff requests a dismissal, unless all a ffected parties to thetrial consent to dismissal without prejudice or by order oft he court dismissing the same without prejudice on a showing of good cause.” 21 points out that section 581 is not exclusive. A trial court’s “li mited, inherent discretionary power” to dismiss civil claims with prejudice is recognize d in case law (see Lyons v. Wickhorst (1986) 42 Cal.3d 911, 915, and cases there cited ) and in section 581, subdivision (m): “The provisionsofthis section shall not be deemed to be ‘an exclusive enumeration ofthe court’s power to dismiss an action or dis miss a complaint as to a defendant.” (Stats. 1993, ch. 456, § 9, p. 2529.) Wefind nothi ng in the record reflecting that the trial court exercised its inherent authority to dismis s this action. A ruling should notbe regarded as a dismissal unless it reflects an expli cit or implicit intent to dismiss an action or cause of action. _ Employer arguesthatthe failure to label a judgmenta dismissal is no t determinative, relying on Schislerv. Mitchell (1959) 174 Cal.Ap p.2d 27, which held that a judgmentorderingtheplaintiffto take nothing was appealable alth ough thetrial court did not order a dismissal after sustaining a demurrer without leave to amend. (/d. at p. 29.) Here, a judgment was eventually entered providing that Employee “r ecover nothing” from Employer. Thatjudgment recited the earlier disposi tions ofthe various causes of action, beginning with the summary adjudication, then the su staining of — motions in limine,andfinally “[t]he parties havingsettled plaintiff's th ird cause of action for breach of implied in fact contract and fourth cause[} of action for b reach ofthe covenant ofgood faith and fair dealing ... .” Thejudgment did not me ntion Employee’s dismissal with prejudice or the settlementpaymentand reflects no int ent to dismiss any causes of action. Indeed, it appears intendedto facilitate appellate re view ofthe earlier rulings, as it deferred requests for costs and fees until after the time fo r all appeals. Section 581d states in pertinent part: “A written dismissal of an action s hall be entered in the clerk’s register and is effective for all purposes whenso entered. [Yj All dismissals ordered by the court shall be in the form of a written order s igned by the court and filed in the action and those orders whenso filed shall constituteju dgments and be 22 effective for all purposes ... .” This statute may be only applicable to dismissals specifically authorized by section 581 (Lavine v. Jess up (1957) 48 Cal.2d 611, 615-616) (Lavine), but it suggests that the proper form of a dismissali s to order dismissal. (Boonyarit v. Payless Shoesource, Inc. (2006) 145 Cal .App.4th 1188, 1192-1193 (Boonyarit).)** Employer contends that the dismissal in thi s case was pursuantto thetrial court’s inherent authority and not pursuantto a particular p rovision in section 581. While Employee dismissed two causes of action in excha nge for a settlement payment, the trial court itself did not dismiss any ca uses of action. It makes sense to mandate costs 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 determinedthat a plaintiffwho obtained a favorable judgme nt wasentitled to costs, even if someofthe plaintiff's claimsfailed at trial or were wi thdrawn, (Sierra Water & Mining Co. v. Wolff(1904) 144 Cal. 430, 433-434 [plaint iffs recovered only part of land sought]; Western Concrete Structures Co. v. Ja mes J. 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. (1 898) 122 Cal. 219 (Fox) stated that “[t]he prevailing party is entitled to costs incurred by h im[,}] whether his recovery be for the whole or a portion ofhis claim, or whetherhis claim be made up of oneor several 4 16 Boonyarit, supra, 145 Cal.App.4th 1188 involved an in effective request by the plaintiff to 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, subdivisio n (c), authorizes a plaintiffto request dismissal of defendants prior to the commencemento ftrial. The court relied on section 581d for guidanceas to the form of such a volu ntary dismissal (Boonyarit, supra, at p. 1192) without indicating that in cases not covered by se ction 581, section 581d is inapplicable. (Lavine, supra, 48 Cal.2d 611, 616. ) 23 causes of action.” (/d. at p. 2237 At oral argumen t, Employer conceded that subdivision (a)(4) does not mandate costs in the case of a partial dismissal when the plaintiff retains live claims. The summary adjudication did not end the action in E mployer’s favor. The sustaining of in limine motions did not end the action i n Employer’s favor, as two causes of action remainedfortrial. The case ended without a trial on the merits because Employee agreed to dismiss her remaining two causeso faction, but the judgment entered did not purport to dismiss the entire action. The judgmentwasintended byits terms to preserve Employee’sright to appealthe court’s ruli ngs on her other claims. Employee did indeed appealin an ultimately unsuccessful atte mptto resurrect those causes of action. Employeevoluntarily dismissed two causes of action and ajudgment was entered on the remaining causes. Employer obtained at mo st a partial voluntary dismissal, which we conclude did not, without more, trigger a manda tory costs award to Employer. In 17 We have not found authority under the formerstatut e awarding costs to a plaintiffwho recovered damagesat trial after the vol untary or involuntary dismissal of a cause of action, but Fox comes very close. That plainti ff initially obtained ajudgment awarding $210,197.50 on a claim of overpaying th e actual costs ofmilling ores and an additional $789,618.00 on a claim of fraudulent mil ling. (Fox, supra, 122 Cal. at p. 220.) An appealresulted in a reversal ofthe award onthe frau d claim and a retrial ofthat cause of action, after which the plaintiffwas awarded $417,68 3.00 on the second cause of action. (/d. at p. 221.) A second appeal was taken, and after a hearing washeld,the plaintiff filed a release of all claims on the second causeo faction and asked the California Supreme Court to affirm the judgmenton th e first cause of action. ({bid.) The high court sustained the release, ordered the judgm ent modified, and rejected the defendants’ contention that they were the prevailin g parties on the withdrawn cause of action in view ofthe rule thatthe plaintiff's partial recov ery madeit the prevailingparty. (Id. at p. 223.) Fox did not involve a dismissal of a caus e of action in the trial court, but - the plaintiff's release of one cause of action waslik e 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 set tlement payment. 2. DID EMPLOYEE RECOVER NO RELIEF AGAI NST EMPLOYER? The amended judgmentprovides that “Plaintiff recover nothi ng from defendant.” Atleast superficially this fits the category of “a defendan t as against those plaintiffs who do not recover any relief against that defendant,” and Employe rso arguesin its response to our request for supplemental briefing. Weobserve that section 1032 distinguishes among dif ferent forms of relief. A “net monetary recovery”is one form ofrelief mandating costs, but the statute also contemplates nonmonetary relief. One issue in Friends oft he Trails v. Blasius (2000) 78 Cal.App.4th 810 (Blasius) was whetherthe plaintiffs had recovered any type ofrelief. They had “soughtto quiettitle to a public easement for rec reational purposes” and “also sought injunctive and declaratory relief.” (id. at p. 819.) T he defendants were property owners and an irrigation district, which used a road easeme ntoverthe property to maintain a ditch. (Id. at p. 818.) The plaintiffs obtained a declaration by thetrial court that a public easement had been created (id. at pp. 819 -820), but the judgment also stated, « ‘No relief is granted in favor ofplaintiffs against[the irr igation district].’” (Ud. at” p. 820.) Nevertheless, the trial court awarded costs to the pl aintiffs againstthe irrigation district. Ibid.) Onappealthe irrigation district contended that it was the prevailing partyunder section 1032, subdivision (a)(4), based on the judgmentpr ovision denyingplaintiffs relief. (Blasius, supra, 78 Cal.App.4th 810, 839.) Th e appellate court rejected the argument, stating “the meaning of that recital is that the co urt wasrejecting the [plaintiffs’] request for affirmative relief against [the irriga tion district], i.¢., reiterating the [irrigation district] easement or granting injunctiver elief. Notwithstanding the recital, in the circumstances ofthis case, the court co uld find that relief had been granted 25 in favor of[the plaintiffs] against [the irrigation district] on the quiet title claim. (See Code Civ. Proc., § 761.030, subd. (b) [‘ If the defendant disclaims in the answer any claim, or suffers judgmentto be taken without ans wer, the plaintiff shall not recover costs’); see generally Hsu v. Abbara (1995) 9 Cal.4 th 863, 877 [‘We agree that in determining litigation success, courts should r espect substance rather than form, and to this extent should be guided by “equitable conside rations.” For example, a party whois denied direct reliefon a claim may nonetheless be foundto be a prevailing party [under Civ. Code, § 1717] if it is clear that the party has otherwise achieved its main litigation objective.’ (Original italics.).].) [{] We con clude that the trial court did not err in determining that this was a case where [plain tiffs] recovered ‘other than monetary relief as to [the irrigation district] and in awarding costs against [the irrigation district].” (Blasius, supra, 78 Cal_App.4th 810, 839.) Employer,like the irrigation district in Blasius, c ontendsit is due mandatory costs based on the judgment provision that Employee shall “recover nothing.” Blasius illustrates that a costs award should be based on al l aspects of a lawsuit’s.final disposition rather than on an isolated phrase inthe judgment. The judgmentin this case provided that Employee shall recover nothing andalso recit ed that the parties had settled two of the seven causes of action. But the judgment fail ed to mentioned that Employee was paid $23,500 in exchange for dismissing those caus es of action. This was not a case where Employee recovered no relief. Employer does not qualify under this definition of prevailing party. IfEmployer had qualified as a “prevailing party,” this case could be among the “stations other than as specified” for purposes o f awarding mandatory costs. (§ 1032, subd. (a)(4).) However, because we conclude that Employer was not a prevailing party under the statute, the case did not present the trial court with occasion to exercise discretion to determine which party prevailed bas ed on the merits ofthe case. When only one party fits a “prevailing party” definition, sect ion 1032 operates mechanically to 26 mandate costs and does not afford the trial court discr etion to decide the issue in light of the circumstances, such as by discounting a nuisa nce settlement. Of course, parties can avoid this mechanical approach by taking care to provid e for costs in their settlements. Butit is not for this court to rewrite the statute to prov ide for discretion where it does not now exist. VI. DISPOSITION The order awarding costs to Employer and denyi ng costs to Employeeis reversed. 27 a e a ee Grover,J. f A WECONCUR: Rushing, P.J. Marquez,J. | deSaulles v Community Hospital ofthe Monter ey Peninsula 1038184 Trial Court: Monterey C ounty Superior Court Superior Court No. M85528 Trial Judge: Hon. Lydia Vi llarreal Counsel for Plaintiff/Appellant: Henry Joachi m Josefsberg Counsel for Defendant/Respondent: Christophe r Edward Panetta Fenton & Keller CIV-110 ATTORNEY OR PARTY WITHOUT ATTORNEY (Name and Address): TELEPHONENO.: FOR COURT USE ONLY |_ Henry J. Josefsberg, Esq., SBN 136772 (562) 436-9401 mn 110 West Ocean Boulevard, Suite 611 F | LE 1) Long Beach, California 90802 OCT 06 2008 ATTORNEY FOR (Name: Plaintiff Maureen deSaulles Insert nameof court and nameofjudicial district and branch court, it any: CONNIE MAZZEl Monterey County Superior - Monterey Branch CLERK OF THE SUPERIORCOURT PLAINTIFF/PETITIONER: Maureen deSaulles J. NICHOLSON DEFENDANT/ RESPONDENT: Community Hospital ofthe Monterey Peninsul REQUEST FOR DISMISSAL . [__] PersonalInjury, Property Damage, or Wrongful Death CASE NUMBER: [] Motor Vehicle [_] Other . M85528 [__] Family Law [—] EminentDomain Other(specify): Employment - A conformed copywill not be returned by the clerk unless a methodof return is provided with the document.- 1. TO THE CLERK: Please dismissthis action as follows: a. (1) With prejudice (2) [__]| Withoutprejudice b. (1) (_] Complaint (2) [__] Petition (3) CL] Cross-complaintfiled by (name): on (date): (4) (__] Cross-complaintfiled by (name): on (date): (5)_] Entire action ofall parties and all causes of action (6) Other(specify):* CA 3 [Breach of Contract]; Date: September 11, 2008 (TYPE OR PRINT NAME OF ATTORNEY [__] PARTY WITHOUT ATFORNEY) ; (SIGNATURE) *If dismissal requested is of specified parties only of specified causes art i action only, or a specified cross-complaints, ont y so Pate and nti without attorneyfor: the parties, causes of action, or cross-complaints fo be dismissed. H /Petitioner L Defendant/Respondent = 2. TO THE CLERK:Consentto the above dismissal is hereby given.** Date: September 11, 2008 Christopher E. Panetta, Esq. » (TYPE OR PRINT NAME OF ATTORNEY C_] PARTY WITHOUT ATTORNEY) . (SIGNATURE) "HgcroeecomplaintorResponse,(aryLeeeonockdan)rust Atomey oF Party without attorney for | sign this consent if required by Codeof Civil Procedure section 584 (I) [_] Plaintiff/Petitioner Defendant/Respondent or (j). . [__] Cross-.complainant (To be completed by clerk) 3. [__] Dismissal entered as requested on (date : 4. [yfDismissal entered on (date): Oct o é 2008 as to only (name): \ald bole)As te CAD anc 5. [__] Dismissal not entered as requested forthe following reasons (specify): ca At On\ ¢ . 6. (ey a. Attorney or party without.attomeynotified on (date): 0 CT 0 6 2008 b. Attorneyor party without attomeynotnotified. Filing party failed to provide [__]acopy to conformed [__]meansto return conformed copy J. NICHOLSON Pate: QT 0.6 2008 CONNIE MAZZEtvy ____ Deputy: . Page.1 of t FortaiselCounelofCalforia. REQUEST FORDISMISSAL : ceoeueofCointle3.1300 CIV-110 (Rev. January 1, 2007] www.courtinio.ca.gov American LegalNet,inc. www.FormsWorkfiow.com -§1.30008 i o C O N N O M 10 11 12 13 14 15 ‘16 17 18 19 20 21 22 23 24 25 26 27 28 ENTON & KELLER ATronsevs At Law MONTEREY . PENINSULA... —. , . . . ad carisTorH -B, PANETTA(BarNo. 175127) NO.(BarNo. 224298) Attorneys forDefendant o eAlinaOliver - COMMUNITY HOSPITAL OF THE MONTEREY ~~ ao SUPERIOR COURT OF THE STATE OF CALIFORNIA ~ COUNTY OF MONTEREY MAUREEN deSAULLES, CASE NO. M 85528 ass] JUDGMENT Plaintiff, ve. COMMUNITYHOSPITAL OF THE MONTEREYPENINSULA;and DOES 1-25, Date ofFiling: July 17, 2007 Trial Date: September2, 2008 Defendant. This action came on regularly for trial on September 2, 2008 in Department17 of the Superior Court, the Honorable Kay T. Kingsley presiding. Henry J. Josefsberg appeared as attorney for plaintiff MAUREEN deSAULLES (“plaintiff”), and Christopher E. Panetta of Fenton & Keller appeared as attorney for defendant COMMUNITY HOSPITAL OF THE MONTEREY PENINSULA(“defendant”). | Having considered the arguments,oral and written, of all the parties, the records and file herein, and the pre-trial motions and oppositions thereto filed herein, and having g ranted defendant’s Motion in Limine No. 1 to Preclude Any Argument That Defendant Failed to Accommodate Plaintiff's Disability or to Engage in the Interactive Process, or That Plaintiff Was Harassed, Discriminated or Retaliated Against in Connection Therewith, the Court finds th at plaintiff will be unable to introduce any evidencethat would establish plaintiff's second ca use of H:documents\adp.0fe7npv.doc [PROPOSED] JUDGMENT 0 o N D H R BW DY ~ J O N W w - Ww W N — _ O o © o o ~~ ] a n t n > Le e) n N — © 28 Fenton & KELLER ATTORNEYS AT Law Monrertr ‘action for retaliation,.her fifth and sixth causes of action forintentional and negli gentinfliction . of emotional.aistress,,-orher.seventh cause of:action for wrongful termina tion in violation of| public policy; and, - - Be - - _ TheCourt having previously granted su mmary sjudiation of Plaintiff's first ca use of action for failure to accommodate; and, The parties having settled plaintiff's th ird cause of action for breach of impli ed in fact }_ contractand fourth causesof action for brea ch of the covenantof good faith and fair dealing , IT IS HEREBY ADJUDGEDthat, lL. Plaintiff recover nothing from defen dant, and . 2. The Parties shall defer seeking a ny recovery of costs and fees on this Ju dgment comingfinal after the timeforall appeals. patYesAD ROLape Judge of the Superior Court KAYTI Veerey© Dated:At__, 2008 APPROVED AS TO FORM AND CONTENT Henry J. Josefsberg, Esq. Attorney for Plaintiff MAUREEN deSAULLES H:documents\adp.0fe7npv.doc -2- [PROPOSED] JUDGMENT- o O C O “s D N 10 1] 12 13 14 15 16 17 18 19 20 2] 22 23 24 25 26 27 28 FENTON & KELLER ATTORREYS AT Law WATKORVILLE CHRISTOPHER E. PANETTA (Bar No. 175127) Fj KATHERINE M. HOGAN(BarNo. 225597) LED FENTON & KELLER A Professional Corporation Post Office Box 791 CONN JAN 18 2012 2801 Monterey Salinas Highway CLERKOME Monterey, CA 93942-0791 UPERIOR COURT Telephone: (831) 373-1241 StotorawDEPery Facsimile: (831) 373-7219 Attorneys for Defendant COMMUNITY HOSPITAL OF THE MONTEREY PENINSULA SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF MONTEREY MAUREEN DESAULLES, CASE NO. M85528 Plaintiff, 4PROPOSEB}ORDER GRANTING DEFENDANTS MOTION TO STRIKE V. ' PLAINTIFF’S MEMORANDUM OF COSTSIN ITS ENTIRETY AND COMMUNITY HOSPITAL OF THE DENYING PLAINTIFF’S MOTION TO MONTEREYPENINSULA, . TAX OR STRIKE COSTS Defendant. The motion of Defendant COMMUNITY HOSPITAL OF THE MONTEREY PENINSULA (“Community Hospital”) for an order to strike the Memorandum of Costs of Plaintiff MAUREEN DESAULLESand the motion of Plaintiff for an order to tax orstrike Community Hospital’s Memorandum of Costs came for hearing in Department 15 of this Court on December 2, 2011. Christopher E. Panetta appeared on behalf of Community Hospital. HenryJ. Josefsberg appeared on behalfofPlaintiff MAUREEN DESAULLES (“Plaintiff”). 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 Hospitalis entitled to costs pursuant to Code of Civil Procedure section 1032, as stated in Community Hospital’s Memorandumof Costs filed on October 7, 2011, in the amount of $11,918.87, {CEP-00185005;1 } ORDERGRANTING DEFENDANT'S MOTION AND DENYING PLAINTIFF’S MOTION RE COSTS 1 THEREFORE, IT IS ORDERED that Community Hospital’s motion for an order to 2 || strike the Memorandum ofCosts of Plaintiff MAUREEN DESAULLESbegranted. 3 IT IS FURTHER ORDEREDthat Plaintiffs motion for an order to tax or strike 4 || Community Hospital’s Memorandum of Costs be denied and that Community Hospital be 5 awarded $11,918.87 in costs. 6 As Plaintiff did not contest Community Hospital’s Memorandum of Costs on Appeal 71 filed on October 7, 2011, in the amountof $813.05, Plaintiff is further therefore ordered to pay 8 Community Hospital $813.05 in costs on appeal. 9 Date: December, 2011 10 1] 12 Judge of the Superior Court 13 14 Approved as to form: 15 16 7 Henry J. Josefsberg Attorney for PlaintiffMAUREEN 18 DESAULLES 19 20 21 22 23 24 25 26 27 28 FENTON& KeuieR ff (CEP-00185008:1 ) 2» warwonetae ORDER GRANTING DEFENDANT’S MOTION AND DENYING PLAINTIFF'S MOTIO N RE COSTS 22/85/2811 13:36 5624369421 HENRYJ PAGE 92/82 THEREFORE, IT IS ORDERED that Community Hospita!'s motion for an order to , 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 be denied and that Community Hospital be ° awarded $1 1.918.87 in costs. ° As Plaintiff did not contest Community Hospital's Memorandumof Costs on Appeal . filed on October 7, 2011, in the amount of $813.05, Plaintiff is further therefore ordered to pay Community Hospital $813.05 in costs on appeal. 9 . Date:December201 10 i JAN 13 200 LYDIA M. VILLARREAR! 12 Judge of the Superior Court 43 14 15 Approved astdform: ~\ s we“ MEEann 17 a a aiJ.mere 18 a ~~“Attérney forPlaintiff MAUREEN yo “~~ DHSAUELES = BYFAX > 3 NMSSSA8 Foaton & Kol ior {CEP-001A5003;1 } ~2e Prat arpe A Les wertenente ORDER GRANTING DEFENDANT'S MOTION AND DENYING PLAINTIFF'S MOTION RE COSTS PROOFOF SERVICE I, Sarah E. Kelly, 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. On June 11, 2014, I served the within document(s): PETITION FOR REVIEW 4 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. Attorney for Petitioner Clerk ofthe Court Henry J. Josefsberg, Esq. : 110 West Ocean Boulevard, Suite 611 Monterey County Superior Court1200 Aguajito RoadLong Beach, CA 90802ong Beach, CA 9 Monterey, CA 93940 (for delivery to the Honorable Lydia M. Villarreal) Clerk of the Court Sixth District Court of Appeals 333 West Santa Clara Street, 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 June 11, 2014, at Monterey, California. Dery Sarah E. ely {JMH-00238891;1 }