Expansion of Recoverable Costs in New CRC 8.278(d)(1) Is Not Retroactive

Andreini & Co. v. MacCorkle Insurance Service, No. A133473 (D1d2 Sept. 25, 2013)

The court addresses two questions about costs recoverable by a successful appellant. First, does the prior version of Rule of Court 8.278, which does not expressly permit a party to recover the cost of borrowing money to post a cash deposit in lieu of an appellate bond, nonetheless permit the appellant to recover its interest cost expense after a successful appeal? Relying on the rationale of last year’s Supreme Court decision in Rossa v. D.L. Falk Construction, Inc., 53 Cal. 4th 387 (2012), the court says no. Second, does a new version of the rule, as modified by the Judicial Council effective January 1, 2013, to overrule Rossa, and which now expressly permits the recovery of the “fees and net interest expenses incurred to borrow funds to deposit with the superior court in lieu of a bond or undertaking,” see Cal. R. Ct. 8.278(d)(1)(G), apply retroactively to the 2010 judgment in this case? Relying on standard retroactivity principles, and recognizing that applying the new rule would increase the cost bill by more than $200,000, the court declined to apply the new rule retroactively in the absence of any express intent by the Judicial Council that it should do so. Reversed.