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Lara v. Buckley Boradcasting Corporation of Monterey1/30/2002
transcript of the hearing at which the court considered her claim. It therefore is not possible to determine which of Clemons's cost items, if any, were recoverable as a matter of right, and which were not.
Nor do we accept Clemons's contention the trial court was powerless to exercise its discretion to disallow unrecoverable costs absent an objection by Lara. Here the court concluded Clemons had not incurred any costs independently of Buckley. "Costs are allowable if incurred, whether or not paid." (Italics added.) (Code Civ. Proc., § 1033.5, subd. (c)(1).) "To `incur' a fee, of course, is to `become liable' for it (Webster's New Internat. Dict. (3d ed. 1961) p. 1146), i.e., to become obligated to pay it." (Trope v. Katz (1995) 11 Cal.4th 274, 280.) There is nothing in the available record showing Clemons was personally obligated to pay any portion of the defense costs, and that the court was incorrect in concluding she was not. We therefore presume the trial court properly exercised its legal duty in denying Clemons's cost bill. (Thon v. Thompson (1994) 29 Cal.App.4th 1546, 1548-1549.) Appeal by Dannelle Lara (F034053)
Lara appeals from the trial court's denial of her motion for attorney fees made pursuant to Government Code section 12965, subdivision (b). This section is part of the FEHA, and then provided in part:
"In actions brought under this section, the court, in its discretion may award to the prevailing party reasonable attorney fees and costs except where such action is filed by a public agency or a public official, acting in an official capacity." (Stats. 1992, ch. 912, § 7.1, p. 4277.)
The court denied the motion on the ground, apparently, that Lara was not the prevailing party on either of her two causes of action brought under the FEHA: the first for sexual harassment and the second for retaliatory termination.
In view of our determination this case must be remanded for a new trial, we need not reach the question of Lara's attorney fees.
Lara's motion to augment the record to include certain pleadings related to her memorandum of costs, deferred for ruling by this court on May 23, 2000, is granted to the extent the same pleadings were not included in Buckley's motion to augment the record granted by this court on August 31, 2000.
Buckley's motions to dismiss Lara's appeal and to impose sanctions for filing a frivolous appeal are denied.
DISPOSITION
The judgment is reversed and the cause remanded to the trial court for a new trial on the first and fourth causes of action. The trial court is directed to enter special verdicts in the minutes on the second cause of action in favor of Buckley and on the third cause of action in favor of Clemons pending entry of final judgment following retrial. (See Valentine v. Baxter Healthcare Corp. (1999) 68 Cal.App.4th 1467.) Each party shall bear its own costs.
WE CONCUR:
Ardaiz, P.J.
Harris, J.
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