Opinion
B295991
03-17-2020
SHARON LOVEYS et al., Plaintiffs and Appellants, v. GREEN HILLS MEMORIAL PARK, Defendant and Respondent.
Law Offices of Noel Weiss and Noel Weiss for Plaintiffs and Appellants. Greenberg Traurig, Eric V. Rowen, Scott D. Bertzyk and Alex Linhardt for Defendant and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. BC629637) APPEAL from a judgment of the Superior Court of Los Angeles County. David Sotelo, Judge. Affirmed. Law Offices of Noel Weiss and Noel Weiss for Plaintiffs and Appellants. Greenberg Traurig, Eric V. Rowen, Scott D. Bertzyk and Alex Linhardt for Defendant and Respondent.
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Appellants are 32 owners of condominiums in a complex directly across from a mausoleum operated by respondent Green Hills Memorial Park (Green Hills). Appellants sued Green Hills and the City of Rancho Palos Verdes (City) for nuisance and related claims concerning Green Hills's installation of a rooftop interment area on the mausoleum. Appellants alleged that the rooftop facility caused noise from burials, mold and pests from the rooftop green area, and invasion of privacy from mourners peering into their homes.
The City subsequently settled and is not a party to this appeal.
Green Hills filed a motion for judgment on the pleadings. Among other things, Green Hill argued that the City had expressly approved the rooftop facility through permits and resolutions. The trial court granted the motion on that ground without leave to amend.
We affirm. Under Civil Code section 3482 and the cases interpreting it, conduct that is done under the express authority of a local law may not be considered a nuisance. The record contains abundant evidence that the conduct Appellants challenge was authorized by local zoning decisions and resolutions. And Appellants have not articulated any viable theory of nuisance that would fall outside the scope of section 3482. The trial court therefore acted within its discretion in denying leave to amend.
Subsequent undesignated statutory references are to the Civil Code.
BACKGROUND
1. Appellants' Allegations
Appellants' allegations are set forth in their operative first amended complaint (Complaint). Consistent with the applicable standard of review, we accept Appellants' allegations as true, except to the extent they are contradicted by facts that are subject to judicial notice and cannot reasonably be controverted.
Appellants own condominiums in the Vista Verde condominium complex (Vista Verde), which is located immediately northwest of the Green Hills mausoleum (Mausoleum). The Mausoleum is eight feet from the Vista Verde property line. From the Mausoleum rooftop, one can see the condominiums facing the Mausoleum and the Vista Verde pool below.
The City issued permits to construct the Mausoleum in 2012, and construction of the Mausoleum was complete in September 2013. Soon after, Appellants learned that Green Hills intended to inter human remains on the rooftop of the Mausoleum.
Appellants raised concerns, and in response the City hired an outside contractor, RCS Investigation (RCS), to examine how Green Hills obtained its land use entitlements. RCS issued a report containing findings that, although unintentional, the City planners had committed "errors and oversights" in how they administered Green Hills's land use entitlement requests. RCS's report concluded that Green Hills had made false representations in its submissions to the City, including in its plans concerning the installation of soil, sod, and an irrigation system on the Mausoleum roof. The report also concluded that the Mausoleum did not comply with the height limit approved by the City.
On September 1, 2015, the City directed Green Hills to apply for a variance of the setback requirements to permit the Mausoleum's location within eight feet of the property line, and barred rooftop interments within 16 feet of the property line. However, on November 17, 2015, after the City had replaced its city attorney, the City passed a resolution revoking its September 1, 2015 order. The Complaint characterizes this resolution (November 17, 2015 Resolution) as "refusing to abate the nuisance occasioned by Green Hills' conduct, and thereby letting Green Hills off the hook by absolving Green Hills from having to follow in this instance the City's zoning laws and development standards which are applicable to every other citizen."
The Complaint alleged a claim against the City for breach of its statutory duty to abate a public nuisance pursuant to Health and Safety Code sections 9575 and 9576. The Complaint also alleged two claims against Green Hills for nuisance and failure to abate a nuisance.
The Complaint claimed that the nuisance resulted from various acts associated with the rooftop interments, including: (1) digging plots and conducting funerals that resulted in noise; (2) using amounts of soil, sod, and water for the landscaping that were structurally unsafe; (3) using an irrigation system that caused flies and mold on the Mausoleum wall, threatening Appellants' health; and (4) permitting visitors who peered into the Vista Verde complex, invading Appellants' privacy.
The Complaint sought damages and an injunction "enjoining Green Hills from interring any human remains on the roof of the . . . Mausoleum."
2. Facts Established Through Judicial Notice
Pursuant to Green Hills's request, the trial court took judicial notice of a number of City resolutions and other official documents as well as several court filings. Those documents established the following facts.
a. Approval of the eight foot setback and rooftop interments
In a 2007 resolution (Resolution 2007-33), the City Planning Commission approved revisions to the Green Hills master plan and conditional use permit, subject to conditions of approval. One of those conditions specified an eight foot setback for the Mausoleum.
The conditions also stated that the revision to the master plan "shall be consistent with the 'Master Plan Amendment Submittal Package' booklet dated January 29, 2007, prepared by J. Stuart Todd Inc." (2007 Submittal Package). The 2007 Submittal Package specified that there would be ground burials "located on top of mausoleum," and also included drawings that disclosed ground burials on two levels, including on the top of the Mausoleum.
b. Conditions for rooftop landscaping and burials
The City's November 17, 2015 Resolution concluded that Green Hills was not required to seek a variance for the eight foot setback for the Mausoleum, which the City Planning Commission had previously approved in Resolution 2007-33. The Resolution also imposed conditions on Green Hills's use of the Mausoleum. Those conditions included requirements that: (1) "with the exception of ground cover, no other vegetation shall be planted on the roof of the . . . Mausoleum"; (2) the northern wall of the Mausoleum shall be "screened by a type of wall vine landscaping"; (3) plot preparation, backfilling, burials, and "all associated services" for rooftop interments may only occur between 10:00 a.m. and 3:00 p.m.; (4) amplified sound may not be used on the rooftop other than playing "Taps" for military and first responder burials; (5) all services on the Mausoleum rooftop must be conducted "within temporary covered tenting that is enclosed on a minimum of 2 sides," one of which must be "the north side facing . . . Vista Verde"; and (6) at least one Green Hills employee must attend and monitor every service on the Mausoleum rooftop "to ensure that the services are orderly and comply with these conditions of approval." Another general condition required that irrigation systems be designed to "provide adequate coverage with no over-spray, runoff, or excessive quantities of water output."
c. Appellants' admissions in a prior lawsuit
In February 2016 Appellants filed a lawsuit against the City, seeking a writ and/or an injunction against the City and naming Green Hills as a real party in interest (the Injunction Action). Among other things, Appellants sought an order in that action directing the City to "vacate and set aside" the November 17, 2015 Resolution and requiring Green Hills to obtain a variance. The Injunction Action also sought a judgment stating that the City engaged in an unconstitutional " 'taking' " of Appellants' real property.
Appellants' complaint in the Injunction Action alleged that the City exceeded its authority or abused its discretion in (1) failing to require Green Hills to obtain a variance for its eight foot proximity to Vista Verde; (2) approving the height of the Mausoleum at 32 feet; and (3) approving rooftop burials on the Mausoleum. Appellants specifically alleged that the November 17, 2015 Resolution "granted real party Green Hills the following land use entitlements," which included: (1) "[a] conditional use permit purporting to 'legalize' (and permit) Green Hills to do roof-top burials on the roof of the . . . Mausoleum]"; (2) a conditional use permit "purporting to 'legalize' 13 below-ground interments which encroach 8' within the legally mandated 16' . . . set-back"; and (3) a conditional use permit " 'legalizing' the height of the [M]ausoleum, as constructed, at 32' in direct contravention" of prior land use grants.
3. The Trial Court's Rulings
Green Hills filed a motion for judgment on the pleadings arguing, among other things, that the City's resolutions authorized the conduct that Appellants' Complaint challenges, precluding a nuisance claim under section 3482. The trial court granted the motion on that ground. The court found that the "clear legal effect" of Resolution 2007-33 and the 2007 Submittal Package was that "Green Hills was permitted to build the [M]ausoleum eight feet from [Appellants'] property line and that burials and interment would be permitted on the [M]ausoleum's roof."
Appellants subsequently filed a motion for a new trial, which the trial court also denied. The trial court awarded costs in favor of Green Hills.
DISCUSSION
1. Green Hills's Alleged Conduct Could Not Be a Nuisance Because It Was Expressly Authorized by Local Law
The trial court ruled that the nuisance claims Appellants assert are precluded as a matter of law under section 3482 because the City authorized the rooftop interments and other conduct related to the Mausoleum that Appellants challenge. We review that decision de novo. (Pang v. Beverly Hospital, Inc. (2000) 79 Cal.App.4th 986, 989.) We "accept as true all material allegations in the complaint." (Kimmel v. Goland (1990) 51 Cal.3d 202, 205.) We may also consider matters that are subject to judicial notice, "including a party's admissions or concessions which can not reasonably be controverted." (Pang, at pp. 989-990.) "[A] court may take judicial notice of something that cannot reasonably be controverted, even if it negates an express allegation of the pleading." (Evans v. California Trailer Court, Inc. (1994) 28 Cal.App.4th 540, 549.)
Section 3482 provides that "[n]othing which is done or maintained under the express authority of a statute can be deemed a nuisance." Although the section refers to a statute, it has been interpreted to apply also to "regulations and other express government approvals," including local ordinances. (Williams v. Moulton Niguel Water Dist. (2018) 22 Cal.App.5th 1198, 1205 (Williams); see Katcher v. Home S. & L. Assn. (1966) 245 Cal.App.2d 425, 429-430 [applying statute to city zoning ordinance].)
Section 3482 requires that the government authorization of conduct challenged as a nuisance be "express." Thus, " ' "[a] statutory sanction cannot be pleaded in justification of acts which by the general rules of law constitute a nuisance, unless the acts complained of are authorized by the express terms of the statute under which the justification is made, or by the plainest and most necessary implication from the powers expressly conferred, so that it can be fairly stated that the Legislature contemplated the doing of the very act which occasions the injury." ' " (Varjabedian v. City of Madera (1977) 20 Cal.3d 285, 291 (Varjabedian).)
The City's resolutions summarized above easily meet this standard in authorizing the conduct that is the subject of Appellants' Complaint. Those resolutions show—either directly or by necessary implication—that the City authorized Green Hills to: (1) maintain interments on the Mausoleum rooftop; (2) conduct rooftop burials and funeral services, subject to conditions intended to abate noise and respect the privacy of the Vista Verde residents; (3) locate the Mausoleum within eight feet of the property line; and (4) maintain vegetation on the Mausoleum rooftop. Indeed, in their Injunction Action Appellants admitted that the City authorized rooftop interments and the Mausoleum's eight foot distance from the property line. Appellants' Complaint similarly admits that the City authorized the eight foot setback. And, during oral argument on the motion for judgment on the pleadings, counsel for Appellants agreed that Green Hills's right to inter remains on the roof "has been adjudicated by the City."
The conditions the City imposed expressly permit vegetation on the Mausoleum rooftop in the form of ground cover. This necessarily implies some system to water that vegetation. As mentioned, the City's conditions require all irrigation systems to avoid "over-spray, runoff, or excessive quantities of water output."
The trial court therefore properly concluded that the City had authorized all the conduct that Appellants challenge in their Complaint. The Complaint does not allege that Green Hills violated any of the conditions that the City established in its maintenance of the Mausoleum rooftop or in its conduct of the burials and funerals that are performed there. Rather, as reflected in Appellants' requested relief, the Complaint challenges the proximity of the Mausoleum to Appellants' condominiums and Green Hills's ability to maintain any rooftop interments on the Mausoleum. Section 3482 precludes such claims.
Appellants present a number of reasons why section 3482 should not be applied here. None is persuasive.
Appellants argue that state law does not authorize rooftop interments. However, Appellants do not identify any state statute or regulation that prohibits such interments. Unless local standards conflict with provisions of state law, a local government is permitted, "in the exercise of its police power," to "prescribe such standards governing burial, inurnment, and entombment and such standards of maintenance for cemeteries, including mausoleums and columbariums, as it shall determine to be reasonably necessary to protect the public health or safety, assure decent and respectful treatment of human remains, or prevent offensive deterioration of cemetery grounds, structures, and places of interment." (Health & Saf. Code, § 8115.)
Thus, local governments have the authority to regulate mausoleums so long as their regulation does not conflict with state law. Absent any state law prohibition on rooftop interments, the City could approve rooftop interments and prescribe the conditions for such interments.
Appellants also argue that the number of rooftop interments on the Mausoleum constitutes a nuisance. Appellants claim that the City's November 17, 2015 Resolution permitted an "unspecified number of roof-top interments," which opened the door to "the possibility that excessive use would create a nuisance."
Appellants' argument ignores the conditions that the City imposed on rooftop use. The City limited Mausoleum rooftop burials and funerals to five hours per day, between the hours of 10:00 a.m. to 3:00 p.m., with specific restrictions on noise and requirements for screening. Thus, the City's approval of rooftop interments did address both the amount and the manner of use. By imposing limits, the City necessarily approved use within those limits.
This factor distinguishes this case from cases that Appellants cite. In Varjabedian, the court held that statutes authorizing sewage treatment plants did not expressly, or by necessary implication, authorize the emission of noxious odors from such plants. (Varjabedian, supra, 20 Cal.3d at p. 292.) Similarly, in Wilson v. Southern California Edison Co. (2015) 234 Cal.App.4th 123, 158 (Wilson), the court concluded that the statutes and regulations permitting construction of an electrical substation did not necessarily authorize the "byproduct" of stray voltage affecting a neighboring house. And in Jacobs Farm/Del Cabo, Inc. v. Western Farm Service, Inc. (2010) 190 Cal.App.4th 1502, 1532 (Jacobs), the court concluded that permits allowing the application of pesticides on fields surrounding the plaintiff's land did not authorize the spread of those pesticides to plaintiff's crops.
In those cases, the nature of the harm (noxious odors, electric shocks, and pesticide contamination) did not permit the conclusion that a general authorization to conduct the permitted activity (sewage treatment, electricity generation, and pesticide application) showed "an unequivocal legislative intent to sanction" whatever activity caused the specific harm. (Varjabedian, supra, 20 Cal.3d at p. 291; see Williams, supra, 22 Cal.App.5th at p. 1207 [distinguishing Varjabedian and Wilson on the ground that the act of "allowing the odors to escape" in Varjabedian and the act of "allowing the stray voltage to exist" in Wilson were not authorized by statute].) Here, the harms that Appellants allege (e.g., invasion of privacy and noise) are actually the subject of specific regulations that the City implemented, in the form of requirements for screening, employee supervision of funerals, hours limitations on burials and funerals, and restrictions on amplified sound. Those regulations necessarily imply that whatever noise and invasion of privacy results from conduct that complies with the City's requirements is permitted. As the court observed in Jacobs, cases have applied the protection of section 3482 when the complained-of harm "is the inescapable result of the authorized act." (Jacobs, supra, 190 Cal.App.4th at p. 1532.)
Appellants argue that the City's approvals do not immunize Green Hills's actions from a nuisance claim under section 3482 because Green Hills obtained those approvals through fraud. The argument is based on the assumption that, in a lawsuit between two private parties, this court may refuse to give effect to a local law under section 3482 based on the process through which a city enacted it. Appellants do not cite any authority for the proposition that this court has the power to reject the validity of a local law absent a showing that the law is unconstitutional or a prior finding that the local government acted outside its authority.
As discussed above, the City has the statutory authority to regulate the Mausoleum, so long as its regulation does not conflict with state law. (See Health & Saf. Code, § 8115; see also Gov. Code, § 38771 ["By ordinance the city legislative body may declare what constitutes a nuisance"].) The City also has constitutional authority to do so. (See Cal. Const., art. XI, § 7 ["A county or city may make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with the general laws"].) Absent a showing that a law is unconstitutional, a court does not have the authority simply to disregard it. (See People v. Mello (2002) 97 Cal.App.4th 511, 517.)
A party's fraud in obtaining city approval might provide a basis for a court order against a city requiring that a permit be revoked. (See Health & Saf. Code, § 9525; id., § 9575 ["in case any false statement or misrepresentation is made in any of the plans, specifications or statements submitted or filed for the permit or approval [of a mausoleum or columbarium], the [building] department shall revoke or cancel any permit or approval it has previously issued"].) Indeed, Appellants asserted a claim seeking such an order against the City in their first cause of action in this case. Appellants subsequently executed a settlement agreement with the City in which they agreed to drop that claim along with their Injunction Action. Appellants have cited no statutory basis for treating a city's authorization of mausoleum conditions as invalid due to alleged fraud absent a successful action against the city to revoke that authorization.
Moreover, the City's approval in this case was not limited to approval of a permit by the building department, but, as Appellants' own allegations demonstrate, was embodied in a City resolution that was issued after Green Hills's alleged fraud had already been revealed and considered.
2. The Trial Court Did Not Abuse Its Discretion in Denying Appellants' Motion for a New Trial
Appellants assert that the trial court erred in failing to grant their motion for a new trial based on newly discovered evidence. Appellants cite a resolution that the City adopted on August 7, 2018, concerning a grading permit for the development of new interment sites in a different area of the Green Hills facility not involving the Mausoleum (the August 7, 2018 Resolution). The August 7, 2018 Resolution denied Appellants' appeal of the permit. In doing so, the Resolution rejected Appellants' argument that "no audit or evaluation of density limits has been done and therefore . . . no finding can be made that Green Hills is in compliance with the density limitations of the Master Plan."
In responding to this argument, the August 7, 2018 Resolution stated that "the Master Plan should be used as a reference document only and all future improvements . . . are to be publicly noticed and considered by either the Director (unless appealed to the Planning Commission) or the City Council." Appellants claim that the resolution therefore shows that Green Hills's master plan as a whole was "advisory, not mandatory," and that this showing somehow undermines the trial court's ruling on Green Hills's motion for judgment on the pleadings.
A trial court may grant a new trial on the basis of newly discovered evidence where the moving party shows that "the evidence is newly discovered, reasonable diligence has been exercised in its discovery, and the evidence is material to the moving party's case." (Wood v. Jamison (2008) 167 Cal.App.4th 156, 161; Code Civ. Proc., § 657, subd. (4).) An appellate court reviews a trial court's ruling on a new trial motion under the standard of review appropriate for the particular determination that the trial court made. (Wall Street Network, Ltd. v. New York Times Co. (2008) 164 Cal.App.4th 1171, 1176-1177.) If the trial court's ruling is based on an issue of law, the appellate court reviews it de novo. (Ibid.) Otherwise, the ruling is reviewed for abuse of discretion. (Ibid.)
The trial court denied Appellants' motion on the ground that it raised "nothing new." We review that factual finding for abuse of discretion. We review de novo the legal issue of whether the alleged new evidence was material to the effect of section 3482 on Appellants' claims.
The trial court did not abuse its discretion in finding that Appellants' new trial motion did not identify new evidence. Counsel for Appellants actually referred to the August 7, 2018 Resolution during oral argument on the motion for judgment on the pleadings, arguing that it showed the City had never authorized a "specific number of allowed interments."
Appellants also have not shown that the August 7, 2018 Resolution was material. Regardless of whether the Green Hills master plan was advisory or mandatory with respect to the question of density, as discussed above the City's resolutions themselves specifically authorized rooftop interments on the Mausoleum and imposed conditions on their use, including the hours in which services and burials may be performed. Thus, the City approved use within the scope of those conditions. Appellants have not alleged any failure to comply with those conditions and therefore have not identified any conduct that is actionable as a nuisance.
3. The Trial Court Did Not Abuse Its Discretion in Denying Leave to Amend
We review the trial court's decision denying leave to amend for abuse of discretion. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) Leave to amend should be given " 'if there is any reasonable possibility that the defect can be cured by amendment.' " (Ibid.) However, the burden is on the plaintiff to show an abuse of discretion. " 'Plaintiff must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading.' " (Ibid.)
Appellants have not made such a showing. Neither in the trial court nor in this court have Appellants identified specific facts that they could allege showing that Green Hills operated the Mausoleum in violation of the conditions that the City imposed or in some other manner that the City's resolutions did not authorize.
In the trial court, Appellants argued generally that they should be given leave to amend to elaborate on the "intensity" of Green Hills's use of the rooftop interments. As discussed above, Green Hills's use of the Mausoleum rooftop was subject to specific conditions on timing and noise. The City authorized use within the scope of those conditions. Appellants did not identify any additional facts they could allege showing that Green Hills violated the conditions that the City imposed through its "intensity" of rooftop use.
Similarly, in this court, Appellants have failed to identify any violation of the conditions the City imposed or other particular acts outside the scope of the use that the City permitted. Appellants argue that the "existence of mold and insects as a health hazard," the invasion of privacy from mourners, and noise pollution from the manner of "Green Hills' operation of the roof-top" were not authorized by the City. This argument identifies only the alleged harm that Appellants claim they suffered. To warrant recognition under section 3482, enactments need not specifically authorize all the potential harmful consequences of permitted conduct; they need only authorize the conduct itself to preclude a claim that the conduct constituted a nuisance. (See Williams, supra, 22 Cal.App.5th at p. 1207.) Appellants have not identified any particular unauthorized conduct that allegedly caused the harms they claim. They have therefore failed to meet their burden to show how any amendment would change the legal effect of their Complaint.
This court invited further briefing from the parties pursuant to Government Code section 68081 on the question of whether Appellants' Complaint could be amended to state a claim concerning alleged harm from the manner in which Green Hills conducted the activities that it argues were authorized by local law.
4. Green Hills's Motion Was Timely
Citing Code of Civil Procedure section 438, subdivision (f)(1), Appellants argue that Green Hills's motion for judgment on the pleadings was not timely because Green Hills had not yet filed an answer to the Complaint when it filed its motion. We need not consider the timing argument, as the trial court had the authority to consider a nonstatutory motion for judgment apart from Code of Civil Procedure section 438. (See Smiley v. Citibank (1995) 11 Cal.4th 138, 145, fn. 2 [upholding a common law motion for judgment on the pleadings]; Stoops v. Abbassi (2002) 100 Cal.App.4th 644, 650 [" 'A motion for judgment on the pleadings may be made at any time either prior to the trial or at the trial itself' "]; see generally Edmon & Karnow, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2019) ¶ 7:277.)
Because of our disposition, we need not consider Green Hills's alternative arguments that judgment in its favor was also justified on the basis of res judicata and the statute of limitations.
5. The Trial Court Did Not Err in Awarding Costs
Appellants argue that the trial court erred in awarding costs on a joint and several basis against the Appellants who remained in the case at the time the motion for judgment on the pleadings was granted, rather than apportioning deposition costs individually to each Appellant who was deposed. Appellants also argue that no costs should have been assessed against particular Appellants who voluntarily dismissed their claims before the motion for judgment on the pleadings was heard because Green Hills did not file timely cost memoranda against those Appellants. We reject both arguments.
Code of Civil Procedure section 1032, subdivision (b) provides for an award of costs in favor of a prevailing party. A prevailing party includes a "defendant in whose favor a dismissal is entered." (Code Civ. Proc., § 1032, subd. (a)(4).) This definition applies to plaintiffs who voluntarily dismiss their claims against a defendant. (See Catello v. I.T.T. General Controls (1984) 152 Cal.App.3d 1009, 1014 (Catello) ["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"].)
The trial court had discretion to apportion costs under Code of Civil Procedure section 1032. (Acosta v. SI Corp. (2005) 129 Cal.App.4th 1370, 1374 (Acosta).) Because Appellants pursued a single theory of liability against Green Hills in a single action represented by the same attorney, the trial court acted within its discretion in awarding costs on a joint and several basis. (Id. at pp. 1375-1379.)
However, where some plaintiffs voluntarily dismiss their claims while an action is still pending, it is appropriate to assess costs against the dismissed plaintiffs only for the time that their claims were pending. (Catello, supra, 152 Cal.App.3d at p. 1012.) The trial court appears to have followed that procedure here. Appellants do not argue to the contrary.
Appellants argue that their damage claims were different and they could have asserted their individual claims in separate lawsuits. The same was true in Acosta, where plaintiffs were individual homeowners whose homes were allegedly damaged by faulty construction. (Acosta, supra, 129 Cal.App.4th at pp. 1373-1374.) The court nevertheless held that the trial court was not required to apportion costs among the plaintiffs, because the plaintiffs had "joined together (represented by the same attorney) in a single theory of liability against a defendant who prevailed." (Id. at p. 1376.)
Appellants also argue that, under California Rules of Court, rule 3.1700, Green Hills was required to file a costs memorandum against each Appellant who voluntarily dismissed his or her claim within 15 days of each dismissal. Rule 3.1700(a)(1) states that a "prevailing party who claims costs must serve and file a memorandum of costs within 15 days after the date of service of the notice of entry of judgment or dismissal by the clerk under Code of Civil Procedure section 664.5 or the date of service of written notice of entry of judgment or dismissal, or within 180 days after entry of judgment, whichever is first."
Appellants do not cite any authority for their argument that the "dismissal" referenced in this rule includes a voluntary dismissal by a particular plaintiff when other plaintiffs continue to prosecute the same claim against a defendant. We conclude that, in such a situation, the defendant is not required to file a costs memorandum until final judgment or dismissal of the action. That is because, before final judgment, the trial court will not know whether the defendant is the prevailing party with respect to the claims that the dismissed plaintiffs asserted. That finding may affect the costs for which the plaintiffs who voluntarily dismissed their claims may be liable.
Should the remaining plaintiffs prevail against the defendant, the plaintiffs who previously dismissed their claims should not be liable for the defendant's costs as if the defendant were a prevailing party. The court in Burrow v. Pike (1987) 190 Cal.App.3d 384, 400, came to this conclusion with respect to a party who intervened on the side of the plaintiff and later dismissed its claim against the defendant, who ultimately lost. The court concluded that "[p]ursuant to Code of Civil Procedure section 1032 a defendant is entitled to costs only upon a judgment in his favor. To permit losing defendants to transfer their expenses of litigation to one who has intervened on the side of the plaintiff imposes a heavy penalty indeed upon an intervener who has elected to dismiss his complaint." (Id. at pp. 400-401.) The court concluded that the intervener could be liable only for costs incurred "during the time [the intervener] was a party that would not have been incurred but for" the party's intervention. (Id. at p. 401.)
In Fries v. Rite Aid Corp. (2009) 173 Cal.App.4th 182, 188, the court held that a dismissed defendant must file a costs memorandum within 15 days of the dismissal, even though the action continues with respect to other parties. That situation is distinguishable because a defendant that has been fully dismissed from an action is clearly already a prevailing party under Code of Civil Procedure section 1032, subdivision (a)(4).
Until the trial court granted Green Hills's motion for judgment on the pleadings, it could not have known whether Green Hills would prevail on the claims that the dismissed Appellants had asserted. It was therefore appropriate for Green Hills to wait to seek costs from those Appellants until after the final judgment had been entered.
DISPOSITION
The judgment is affirmed. Green Hills Memorial Park is entitled to its costs on appeal.
NOT TO BE PUBLISHED.
LUI, P. J. We concur:
ASHMANN-GERST, J.
CHAVEZ, J.