Boonyarit
Boonyarit v. Payless Shoesource, Inc.
Opinion
Opinion
Willhite, J.
Plaintiff Dina Boonyarit appeals from the judgment awarding defendant Payless Shoesource, Inc. (Payless), prejudgment costs of $587.75 under Code of Civil Procedure section 1032. To be a “prevailing party,” a defendant who has been voluntarily dismissed from the plaintiff’s complaint must secure entry of the order or judgment of dismissal. (§ 1032, subd. (a)(4).) This may be accomplished by filing a proposed judgment of dismissal with the memorandum of costs, and ensuring that the trial court executes the judgment along with the costs award. Because Payless failed to comply with this requirement, the costs award was unauthorized. Therefore, we reverse.
BACKGROUND
On January 25, 2005, plaintiff filed a complaint alleging that she was injured when she slipped on a banana peel in the parking lot of a shopping center. In her sole cause of action for negligence, she named as defendants the owners of the property, as well as 16 tenants whose businesses used the lot. Payless was one of the defendant-tenants.
Payless was not formally served with the complaint, but was mailed a notice and acknowledgment. Plaintiff’s counsel granted Payless an extension to March 21, 2005, within…