Catello v. I. General Controls

• Decision Date: 08 March 1984
• Citation: 200 Cal.Rptr. 4,152 Cal.App.3d 1009
• Court: California Court of Appeals Court of Appeals
• Parties: Ernest CATELLO et al., Plaintiffs, v. I.T.T. GENERAL CONTROLS, Defendant and Appellant, v. LIBERTY MUTUAL INSURANCE COMPANY, Intervenor and Respondent. Civ. 22831.

Page 4

200 Cal.Rptr. 4

152 Cal.App.3d 1009

Ernest CATELLO et al., Plaintiffs, v. I.T.T. GENERAL CONTROLS, Defendant and Appellant, v. LIBERTY MUTUAL INSURANCE COMPANY, Intervenor and Respondent.

Civ. 22831.

Court of Appeal, Third District, California.

March 8, 1984.

Mackenroth, Seley, Chaffin & Anwyl, and Claudia J. Robinson, Sacramento, for defendant and appellant.

Thompson & Michel, and Thomas B. Spaulding, Sacramento, for intervenor and respondent.

No appearance for plaintiffs.

COUZENS, Associate Justice. ^*

Defendant appeals from the trial court's order striking its cost bill submitted following the voluntary dismissal of a complaint in intervention. We will reverse.

FACTS

Ernest Catello was injured when an oven exploded at his place of employment. He filed a complaint for personal injuries against I.T.T. General Controls as manufacturer of the defective oven. Thereafter, Liberty Mutual Insurance Company, the workers' compensation carrier for Catello's employer, filed its complaint in intervention to recover some $31,000 in benefits paid Catello. ¹

On the first day of trial, Liberty Mutual dismissed its complaint, advising the court that it had reached a lien agreement with Catello. The action proceeded to trial as between the original parties, the jury ultimately returning a verdict in favor of defendant I.T.T.

I.T.T. submitted its cost bill against Liberty Mutual as to those items incurred while the insurance company was in the case. The trial court granted Liberty Mutual's motion to strike the entire cost bill. I.T.T. appeals. ²

DISCUSSION

This appeal raises the issue of whether a defendant is entitled to costs as a matter of course pursuant to Code of Civil Procedure section 1032, subdivision (b), when a plaintiff in intervention voluntarily dismisses its complaint. For reasons hereinafter set forth, we conclude the defendant is entitled to costs attributable to that period of time when the plaintiff in intervention was a party to the principal action.

It is well settled that the awarding of costs to a successful litigant is strictly a creature of statute. (Williams v. Atchison etc. Ry. Co. (1909) 156 Cal. 140, 141, 103 P. 885; 4 Witkin, Cal.Procedure (2d ed. 1971) Judgment, § 80, p. 3242.) The right of defendant to recover costs in the present litigation turns on the interpretation of Code of Civil Procedure section 1032: "[C]osts are allowed of course [p] ... [t]o the defendant ... as to whom the action is dismissed." ³ It is not disputed that Liberty Mutual voluntarily dismissed its complaint. ⁴ The sole question is whether a dismissal of a complaint in intervention is a dismissal of "the action" within the meaning of section 1032.

We begin our analysis by noting that section 1032 was designed to assure a proper allocation of costs dependent upon the outcome of litigation. Accordingly, a defendant is entitled to its costs if the complaint is unfounded, just as much as a successful plaintiff is entitled to its costs. It is not enough, however, that costs should be awarded solely on the final judgment in the action. To so limit recovery would permit an unscrupulous plaintiff with only a marginal chance at recovery and investing only the filing fee to commence an action, forcing the opposing party to engage in expensive discovery, only to dismiss the action prior to final judgment when it appeared the case was sinking, Titanic-like, beneath the waves of overwhelming adverse evidence. Undoubtedly, it was with this evil in mind that the Legislature included an award of costs to the defendant when the plaintiff voluntarily dismissed its action.

Having the purposes of section 1032 in mind, we now turn to the role of an intervenor. "An intervention takes place when a third person is permitted to become a party to an action or proceeding between other persons ...." (Emphasis added.) (Code Civ.Proc., § 387, subd. (a). ⁵) The purpose of allowing intervention is to protect others potentially affected by a judgment, thus obviating delay and multiplicity of suits. (People v. Superior Court (Good) (1976) 17 Cal.3d 732, 736, 131 Cal.Rptr. 800, 552 P.2d 760; County of San Bernardino v. Harsh California Corp. (1959) 52 Cal.2d 341, 346, 340 P.2d 617.) The intervenor becomes a party to the action, with all of the same procedural rights and remedies of the original parties. (Bowles v. Superior Court (1955) 44 Cal.2d 574, 588, 283 P.2d 704; People v. Perris Irrigation District (1901) 132 Cal. 289, 290-291, 64 P. 399; Drinkhouse v. Van Ness (1927) 202 Cal. 359, 371, 260 P. 869.) "Upon being permitted to intervene, the intervenor is to be regarded as a plaintiff or as a defendant in the action (unless he seeks something adversely to both) according as is the party for whose success he seeks to intervene ...." (Boskowitz v. Thompson (1904) 144 Cal. 724, 729, 78 P. 290; Timberidge Enterprises, Inc. v. City of Santa Rosa (1978) 86 Cal.App.3d 873, 879, 150 Cal.Rptr. 606.)

Intervenors have been held liable for costs incurred after they joined the litigation when judgment has been entered against them. (Mann v. Superior Court (1942) 53 Cal.App.2d 272, 280, 127 P.2d 970; People v. Campbell (1902) 138 Cal. 11, 23, 70 P. 918; Whitten v. Dabney (1915) 171 Cal. 621, 632-633, 154 P. 312.) Given the purpose of section 1032 and the role of the intervenor previously discussed, we see no reason to establish a different rule when the complaint in intervention is voluntarily dismissed prior to final judgment. ⁶ It is of no consequence that the original action was prosecuted to its conclusion after dismissal of the complaint in intervention. The intervenor here aligned itself with the original plaintiff. The voluntary dismissal of an action by one of several plaintiffs creates liability for costs, even though the balance of the action proceeds to trial. (Spreckels v. Spreckels (1916) 172 Cal. 789, 790, 158 P. 543.)

We also reject Liberty Mutual's contention that in reality it was only seeking recovery from Catello; i.e., that its action only affected what Catello was able to receive since it was merely exercising one of the options authorized by the Labor Code ⁷ for recovery of workers' compensation benefits paid. First, we decline to carve out an exception to the general rule when the intervention is based on the assertion of workers' compensation rights. Second, the argument only relates to the determination of which of the original parties, if any, is aligned with the intervenor. Here, Liberty Mutual filed a complaint against I.T.T. for the recovery of $31,000 in benefits paid and $2,600 in property damage. It incorporated the essential charging allegations of Catello's complaint. Although a complaint in intervention does not create an independent action (Rhode v. National Medical Hosp. (1979) 93 Cal.App.3d 528, 537-538, 155 Cal.Rptr. 797), the complaint at issue would have survived the dismissal of the main action since it sought affirmative relief from defendant. (Klinghoffer v. Barasch (1970) 4 Cal.App.3d 258, 261-262, 84 Cal.Rptr. 350; Bogardus v. Santa Ana W.G. Assn. (1940) 41 Cal.App.2d 939, 951-952, 108 P.2d 52.) Clearly, Liberty Mutual was assuming the posture of a plaintiff in the traditional sense. ⁸

We hold, therefore, that for the purposes of allocating costs pursuant to section 1032, parties in intervention are either entitled to an award of costs or may be held liable for costs in the same manner as the original parties. Liability for costs will be fixed in any given case by determining the intervenor's alignment with the original parties and will be limited to those costs incurred while the intervenor was a party to the action.

The judgment (order) is reversed and the matter is remanded to the trial court for a determination of those costs properly allowable.

BLEASE, Acting P.J., and CARR, J., concur.

* Assigned by the Chief Justice.

1 Liberty Mutual additionally sought recovery of some $2,600 in property damage. Liberty Mutual also insured the employer for property loss and became subrogated to the insured when the damages were paid.

2 An order granting or denying a motion to tax costs, made after final judgment, is reviewable on appeal. (Lacey v. Bertone (1949) 33 Cal.2d 649, 654, 203 P.2d 755; Jimenez v. City of Oxnard (1982) 134 Cal.App.3d 856, 858, fn. 3, 184 Cal.Rptr. 864.)

3 Code of Civil Procedure section 1032 provides, in relevant part:

"In the superior court, except as otherwise expressly provided, costs are allowed of course:

"(a) To plaintiff upon a judgment in his favor; in an action for the recovery of real property; in an action to recover the possession of personal property; in an action for the recovery of money or damages; in a special proceeding; in an action which involves the title or possession of real estate or the legality of a tax, impost, assessment, toll,...