Case Study: Carter V. Cohen

As Tenants correctly note, a prevailing party is entitled to recover costs in any action. (Code Civ. Proc. § 1032, subd. (b).) Where provided by a fee-shifting contractual provision, attorney’s fees qualify as “costs” for that purpose. (Code Civ. Proc. § 1033.5, subd. (a)(10)(A); Civ. Code § 1717, subd. (a).) However, Code of Civil Procedure section 1033 (“Section 1033”), subdivision (b)(1), provides the trial court discretion to deny or limit a prevailing party’s costs where “the party could have brought the action in the small claims division but did not do so.”
Section 1033’s purpose is “is ‘to discourage plaintiffs from “over filing” their cases’ and thereby ‘wast[ing] judicial resources.’ ” (Carter v. Cohen (2010) 188 Cal.App.4th 1038,