Ducoing Management, Inc. v. Superior Court of Orange County

Introduction

This writ petition demonstrates the importance of the disposition in an appellate opinion in determining the form of judicial relief, particularly when the disposition reverses a judgment and remands for retrial. The disposition articulates what the trial court should do, with clear and understandable instructions, and whether and how the trial court should exercise its discretion upon remand.

Here, this court issued an opinion in an appeal by two plaintiffs, represented by the same counsel, who were both nonsuited at trial. We affirmed the judgment of nonsuit as to the first plaintiff, but reversed the judgment “[i]n all other respects,” and remanded the matter for a retrial by the second plaintiff. Essentially, we left plaintiffs’ claims intact, holding they properly were pursued in their entirety by the second plaintiff, the first plaintiff being superfluous for purposes of recovery. We awarded no costs on appeal. No party filed a petition for rehearing.

Are defendants automatically entitled to recover all their trial costs as prevailing parties from the first plaintiff, without further review by the trial court following the appellate judgment? If yes,…