Slavin v. Fink

In Slavin v. Fink (1994) 25 Cal.App.4th 722, Slavin, a building contractor, sued Borinstein, a homeowner, and Fink, her agent, for recovery of construction costs. The trial court ruled Slavin was entitled to recover against Borinstein, but not against Fink. The attorney who had represented both Fink and Borinstein then filed a cost memorandum on behalf of Fink seeking over $ 19,000 in costs. Slavin filed a motion to tax costs, arguing the costs Fink were seeking were really costs which benefited Borinstein, the losing party. The trial court agreed and awarded Fink only about 5 percent of what he was seeking. Fink appealed the apportionment and the appellate court affirmed explaining that the trial court "acted well within its discretion" when it awarded costs in that manner. (Slavin, supra, 25 Cal.App.4th at p. 725.) The court's exercise of its discretion was upheld on appeal. Quoting from another case, the Slavin court stated: " 'In those instances in which several defendants are united in interest and/or join in making the same defenses in the same answer, the allowance or disallowance of an award to prevailing defendants lies within the sound discretion of the court. ' " (Id. at p. 726.) A trial court's exercise of discretion will only be reversed when it exceeds the bounds of reason. " ' "When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court." ' " (Ibid.) In short, plaintiff building contractor sued a property owner and the owner's agent for recovery of construction costs and lost profits relating to a construction project. Defendants were represented by the same counsel. Judgment was rendered in favor of the contractor against the owner, but in favor of the agent vis-a-vis the contractor. The agent filed a cost memorandum, which the contractor moved to strike or tax. The contractor argued that the claimed costs had actually benefited the owner, over whom the contractor had prevailed. (25 Cal.App.4th at p. 724.) At the hearing on the motion, the trial court found that the agent had claimed the same costs as could have been claimed by the owner had the owner been the prevailing party. However, the '"'main'" defendant' in the action was the owner, and the agent had not made any attempt to separate the costs attributable to his own defense as opposed to the defense of the owner. (Ibid.) Based on its familiarity with the case, the trial court allocated the costs between the defendants, finding that the agent was entitled to recover only his appearance fee and 5 percent of the remaining costs he had claimed. ( Id. at p. 725.)