Pacheco v. Tuttle CA2/3 ( 2021 )

Filed 9/22/21 Pacheco v. Tuttle CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on
opinions not certified for publication or ordered published, except as specified by rule
8.1115(b). This opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
RICHARD PACHECO et al., B302508
Plaintiffs and Respondents, (Los Angeles County
Super. Ct. No. KS019694)
v.
GREG S. TUTTLE,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Bruce F. Marrs, Judge. Affirmed.
Paul Cook for Defendant and Appellant.
Jimmy L. Gutierrez A Law Corp. and Jimmy L. Gutierrez;
Pollak, Vida & Barer, Daniel P. Barer and Anna L. Birenbaum
for Plaintiffs and Respondents.
‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗
Defendant and appellant Greg Tuttle (Tuttle) appeals from
an order of the trial court denying Tuttle’s motion to tax costs
and awarding appellate costs of $1,627 to plaintiffs and
respondents Richard Pacheco, Manuel Lozano, and Monica
Garcia (collectively, plaintiffs). Tuttle contends the trial court
was required to hold an oral hearing on his motion to tax costs,
and plaintiffs were entitled to recover, at most, costs of $8.40. We
find no abuse of discretion, and thus we affirm the costs award.
FACTUAL AND PROCEDURAL BACKGROUND
A. Underlying Litigation
On February 23, 2016, Pacheco, a member of the
Baldwin Park City Council, filed a request for a civil harassment
restraining order against Tuttle (Code Civ. Proc.,1 § 527.6), and
obtained a temporary restraining order. Pacheco alleged a course
of conduct by Tuttle, including following Pacheco in his vehicle
during a 2015 reelection campaign, making threatening
statements during a city council meeting, and following Pacheco
and his wife to a restaurant and hotel in Santa Barbara.
On March 4, 2016, Lozano, Baldwin Park’s mayor, and
Garcia, another member of the city council, filed separate
requests for restraining orders against Tuttle, alleging similar
conduct by him. Their requests for temporary restraining orders,
which were heard by a different bench officer, were denied on the
ground that Lozano and Garcia had not sufficiently shown acts of
violence, threats of violence, or a course of conduct that seriously
alarmed, annoyed, or harassed them and caused them
substantial emotional distress.
1
All subsequent undesignated statutory references are to
the Code of Civil Procedure.
2
On March 15, 2016, the matters were reassigned to a third
bench officer, who held a hearing on plaintiffs’ requests for
restraining orders. At the conclusion of the hearing, the trial
court ruled that plaintiffs had failed to meet their burden of
proving harassment by clear and convincing evidence, and it thus
dissolved the temporary restraining order entered in favor of
Pacheco and dismissed the cases.
On April 18, 2016, Tuttle filed a motion seeking attorney
fees of $94,934 under the civil harassment restraining order
statute (§ 527.2) and the private attorney general statute
(§ 1021.5).2 Plaintiffs opposed the motion. After a hearing, the
trial court ruled that the amount Tuttle had requested was
excessive, and it therefore denied the request for attorney fees.
B. Prior Appeal
Tuttle timely appealed from the orders denying his motions
for attorney fees. In an unpublished opinion filed November 20,
2018, we concluded that Tuttle had forfeited his request for
attorney fees pursuant to section 425.16, and the trial court acted
within its discretion in declining to award attorney fees in any
amount. We therefore affirmed the order denying Tuttle attorney
fees. Our disposition stated: “The May 5, 2016 orders denying
Tuttle’s motions for attorney fees are affirmed. Respondents
shall recover their costs on appeal.”
C. Further Trial Court Proceedings
In April 2019, plaintiffs’ appellate counsel, Daniel Barer,
filed in the trial court a memorandum of costs on appeal (Judicial
2
Although Tuttle had filed an anti-SLAPP motion pursuant
to section 425.16, the court did not rule on the motion and Tuttle
did not seek attorney fees under the anti-SLAPP statute.
3
Council Form APP-013). In it, Barer stated under penalty of
perjury that the following items of costs “are correct and were
necessarily incurred in this case on appeal”:
Filing fees: $802.20
Preparation of the original and copies of
clerk’s transcripts or appendix: $259.42
Preparation of reporter’s transcript: $399.84
Printing and copying of briefs: $106.50
Transmitting, filing, and service of
record, briefs, and other papers: $59.80
TOTAL COSTS: $1,627.76
On May 8, 2019, Tuttle filed a motion to tax costs, which he
noticed for hearing eight months later, on January 10, 2020. He
contended: (1) plaintiffs could not recover costs because Barer
had not filed an association of counsel in the trial court;
(2) plaintiffs had not filed any evidence of their claimed appellate
costs;3 (3) plaintiffs were not entitled to recover costs because the
trial court previously had ordered both parties to bear their own
costs; (4) plaintiffs acted with unclean hands, and (5) plaintiffs’
claimed costs were excessive. With regard to the latter
contention, Tuttle challenged each element of plaintiffs’ claimed
3
Tuttle asserted, incorrectly, that plaintiffs should not be
permitted to introduce evidence of their costs in opposition to the
motion to tax because “ ‘new evidence is not permitted with
[additional] papers.’ ”
4
costs, but provided no evidence that such costs were excessive.
Tuttle therefore asked the trial court to deny plaintiffs’ request
for costs in its entirety; in the alternative, he contended plaintiffs
were entitled to recover, at most, costs of $8.40.
On May 9, 2019, Tuttle’s counsel sent a letter to the trial
court requesting dismissal of plaintiffs’ costs memorandum on
the ground that it was filed by “an uninterested party”—namely,
by Attorney Barer, who had represented plaintiffs on appeal, but
had not filed an association of counsel in the trial court.
Thereafter, on May 22, 2019, plaintiffs’ trial attorney filed notice
that he “hereby associates Pollak, Vida & Barer as co-counsel for”
plaintiffs.
On October 22, 2019, the trial court issued a minute order
(1) denying Tuttle’s motion to tax costs, (2) approving plaintiffs’
memorandum of costs, and (3) advancing and vacating the
January 10, 2020 hearing date. The court specifically stated that
in ruling on the motions, it had read and considered the
memorandum of costs on appeal, the motion to tax, this court’s
remittitur, and the court file.4
Tuttle timely appealed from the October 22, 2019 order.
DISCUSSION
Tuttle contends the trial court abused its discretion by
failing to hold an oral hearing on his motion to tax costs. He
further contends the trial court erred by awarding costs in excess
of $8.40 because (1) plaintiffs provided no evidence of their
asserted costs, (2) the costs memorandum was filed by appellate
counsel, who was not of record in the trial court, and (3) plaintiffs
4
Because the hearing was set for January, plaintiffs’
opposition to the motion was not yet due and had not been filed.
5
had unclean hands. As we discuss, none of these claims has
merit.
I.
Legal Principles and Standard of Review
California Rules of Court,5 rule 8.278, provides that the
party prevailing in the Court of Appeal in a civil case “is entitled
to costs on appeal.” (Rule 8.278(a).) Accordingly, unless the
Court of Appeal directs otherwise, the clerk of the court “must
enter on the record, and insert in the remittitur, a judgment
awarding costs to the prevailing party.” (Id., (b)(1), italics
added.)
The prevailing party may recover the following costs,
among others, if reasonable:
“(A) Filing fees;
“(B) The amount the party paid for any portion of the
record, whether an original or a copy or both. The cost to copy
parts of a prior record under rule 8.147(b)(2) is not recoverable
unless the Court of Appeal ordered the copying;
“(C) The cost to produce additional evidence on appeal;
“(D) The costs to notarize, serve, mail, and file the record,
briefs, and other papers;
“(E) The cost to print and reproduce any brief, including
any petition for rehearing or review, answer, or reply.” (Rule
8.278(d)(1).)
To claim appellate costs, a prevailing party must, within
40 days of the issuance of the remittitur, “serve and file in the
superior court a verified memorandum of costs under
5
All subsequent rule references are to the California Rules
of Court.
6
rule 3.1700.” (Rule 8.278(c)(1).) The verified memorandum of
costs “ ‘is prima facie evidence that the costs, expenses and
services therein listed were necessarily incurred.’ ”
(Litt v. Eisenhower Medical Center (2015) 237 Cal.App.4th 1217,
1224 (Litt); Nelson v. Anderson (1999) 72 Cal.App.4th 111, 131
(Nelson).)
The losing party may dispute any or all the items in the
prevailing party’s memorandum of costs by filing a motion to
strike or tax costs. (Rule 8.278(c)(2); Doe v. Los Angeles County
Dept. of Children & Family Services (2019) 37 Cal.App.5th 675,
693.) If an item of costs appears proper on its face, the burden is
on the objecting party to show the costs to be unnecessary or
unreasonable. (Litt, supra, 237 Cal.App.4th 1217, 1224; Nelson,
supra, 72 Cal.App.4th at p. 131.) Such burden is not met by mere
conclusory statements and arguments contained in the motion to
tax costs; rather, an objection to a facially reasonable and
awardable cost item must be accompanied by evidence or
supporting documentation. (Nelson, at p. 131.) Only if an item of
costs is facially improper does the objecting party’s mere
objection, without more, shift the burden of proving that the costs
were reasonable and necessary onto the party claiming them.
(Ibid.; see also Gorman v. Tassajara Development Corp. (2009)
178 Cal.App.4th 44, 71.) “The [trial] court’s first determination,
therefore, is whether the statute expressly allows the particular
item, and whether it appears proper on its face. [Citation.] If so,
the burden is on the objecting party to show them to be
unnecessary or unreasonable.” (Nelson, at p. 131; see also
Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 855
[same].)
7
“ ‘Generally, a trial court’s . . . award of . . . costs . . . is
reviewed for abuse of discretion.’ (Goodman v. Lozano (2010)
47 Cal.4th 1327, 1332; see Castro v. Superior Court (2004)
116 Cal.App.4th 1010, 1017 [‘the propriety or amount of an
attorney fees award is reviewed using the abuse of discretion
standard’].)” (Jones v. Goodman (2020) 57 Cal.App.5th 521, 532–
533.) “ ‘An abuse of discretion occurs only if the reviewing court,
considering the applicable law and all of the relevant
circumstances, concludes that the trial court’s decision exceeds
the bounds of reason and results in a miscarriage of justice.’
[Citation.] In applying the abuse of discretion standard, ‘we
resolve all evidentiary conflicts in favor of the [decision] and
determine whether [it] “ ‘falls within the permissible range of
options set by the legal criteria.’ ” [Citation.]’ ” (Orange Catholic
Foundation v. Arvizu (2018) 28 Cal.App.5th 283, 292–293.)
II.
The Trial Court Did Not Abuse Its Discretion
by Awarding Appellate Costs of $1,627
A. The Trial Court Was Not Required to Hold an Oral
Hearing on Tuttle’s Motion to Tax Costs
Tuttle contends the trial court erred by denying him a
hearing on his motion to tax costs. Plaintiffs disagree, urging
that it was within the trial court’s discretion to deny the motion
to tax costs without an oral hearing. As we discuss, plaintiffs are
correct.
Our Supreme Court discussed the requirement for an oral
hearing in Lewis v. Superior Court (1999) 19 Cal.4th 1232, 1247
(Lewis), where it considered the issue in the context of a
peremptory writ of mandate. The high court explained that the
right to an oral hearing turns on the intent of the Legislature as
8
expressed in the relevant statutory language. The procedures
governing a peremptory writ of mandate were described in
section 1088, which provided that when a peremptory writ of
mandate was sought, “ ‘[t]he case must be heard by the court,
whether the adverse party appears or not.’ ” (Lewis, at p. 1245,
quoting § 1088.) Although the court noted that although the
“usual and ordinary” meaning of “heard” commonly includes an
auditory component, “when used in a legal sense [it does] not
necessarily encompass oral presentations.” (Id. at p. 1247.)
Thus, the court said, the requirement that a case be “heard” “does
not require an opportunity for an oral presentation, unless the
context or other language indicates a contrary intent.” (Ibid.)
In the case before it, the court held, after examining the
relevant statutory language and history, that an oral hearing was
not required on a petition for a peremptory writ if the appellate
court did not grant a petition for alternative writ or issue an
order to show cause.6 The court explained: “The use of the term
‘heard’ in section 1088, authorizing issuance of a peremptory writ
in the first instance, does not appear to contemplate
consideration of oral argument. In context, the requirement that
the case ‘must be heard’ means that the court cannot issue the
writ by default, but rather must consider and evaluate the
petition before granting the relief requested . . . .” (Lewis, supra,
19 Cal.4th at p. 1250.) Accordingly, “the right to an opportunity
for oral argument on appeal does not extend to proceedings in
6
The court did not articulate its standard of review, but it is
well established that interpretation of a statute is a question of
law that appellate courts review de novo. (E.g., Smith v. LoanMe,
Inc. (2021) 11 Cal.5th 183, 190; People v. Jimenez (2020)
9 Cal.5th 53, 61.)
9
which an appellate court is authorized to issue a peremptory writ
in the first instance.” (Id. at pp. 1260–1261.)
Applying the principles articulated in Lewis, the court in
Brannon v. Superior Court (2004) 114 Cal.App.4th 1203, 1207–
1211 (Brannon) considered whether parties have the right to an
oral hearing in connection with a motion for summary judgment.
The court noted that section 437c “refer[s] in several places to the
requirement of a ‘hearing’ or to a requirement that the motion be
‘heard,’ ” and it concluded that, read in context, “many of these
references are to . . . an ‘oral’ proceeding.” (Id. at p. 1208.) The
court explained: “[S]ection 437c, subdivision (a) provides ‘[n]otice
of the motion and supporting papers shall be served on all other
parties to the action at least 75 days before the time appointed for
hearing.’ (Italics added.) Section 437c, subdivision (b) likewise
states that opposition and reply papers must be filed within a
specified time ‘preceding the noticed or continued date of
hearing.’ (Italics added.) These references to a ‘time appointed
for hearing’ and ‘date of hearing’ as mandatory trigger dates for
the filing of written papers show the Legislature contemplated an
oral hearing date would be part of the mandatory summary
judgment procedures.” (Ibid.)
The court reached a similar conclusion with regard to
demurrers in TJX Companies, Inc. v. Superior Court (2001)
87 Cal.App.4th 747, 750–755 (TJX), concluding that under the
language of the statute, a hearing was required. The court
explained: “A party who demurs to a complaint is entitled to a
‘hearing’ on a specified date. (Cal. Rules of Court, rules 303(c),
325(b).) The court is permitted to change the hearing date to an
earlier or later day ‘on notice prescribed by the court,’ but nothing
in the rules permits it to dispense with the hearing date
10
altogether. (Cal. Rules of Court, rule 325(b).) The rules detail
the procedure concerning rulings on demurrers when one or more
parties fails to appear at ‘the hearing.’ (Cal. Rules of Court, rule
325(d).) With the exception of the tentative ruling procedure
(where the court, by local rule, may adopt a tentative ruling
procedure requiring parties to give advance notice of their intent
to appear at oral argument), the rules are silent regarding
decisions on the basis of the papers alone when the parties have
not submitted. (Cal. Rules of Court, rules 324(a), 325(d).)” (Id. at
p. 752.)
While Brannon and TJX hold that oral proceedings are
required before a court rules on a demurrer and motion for
summary judgment, we are not aware of any authority, and
Tuttle has not pointed us to any, for the proposition that there is
a right to an oral hearing in connection with a motion to tax
costs. Nor are we persuaded that the Rules of Court require such
a hearing. Rule 8.278, which governs awards of appellate costs,
provides for only written submissions to the trial court—namely,
for a “verified memorandum of costs under rule 3.1700” and a
“motion . . . to strike or tax costs.” (Rule 8.278(c).) Rule 3.1700,
to which rule 8.278 refers, also does not require an oral hearing:
It provides that a party claiming costs may “serve and file a
memorandum of costs,” and it permits a party contesting costs to
file and serve a “motion to strike or to tax costs” within 15 days
after service of the cost memorandum.” (Rule 3.1700(a)(1),
(b)(1).) We therefore find no indication in the language of the
Rules of Court that an oral hearing is required in connection with
a motion to tax costs.
Finally, none of the cases on which Tuttle relies supports
the proposition that an oral hearing is required in connection
11
with a motion to tax costs. As we have said, Brannon, supra,
114 Cal.App.4th 1203, and TJX, supra, 87 Cal.App.4th 747, as
well as Harbour Vista, LLC v. HSBC Mortgage Services Inc.
(2011) 201 Cal.App.4th 1496, 1507, addressed entirely different
motions—namely, a motion for summary judgment, a demurrer
to a class action complaint, and a quiet title judgment. 612 South
LLC v. Laconic Limited Partnership (2010) 184 Cal.App.4th 1270(612 South) addressed a motion for attorney fees, but held only
that “under the unique circumstances of this case”—that is,
where the moving party “never had the opportunity to present
evidence” of some of its claimed $243,000 in attorney fees, and it
was not clear whether the trial court ever considered the
nonmoving party’s motion to tax—a remand “for a determination
of the reasonable amount of attorney fees and costs” was
appropriate. (Id. at pp. 1284–1285.) Finally, Carpy v. Dowdell
(1900) 129 Cal. 244, 246, arose in a completely different context,
holding a trial court erred “in refusing to hear the motion to retax
the costs on the ground that said motion was not made in
writing.” (Italics added.)
Because the relevant provisions in the Rules of Court make
no reference to an oral hearing, and no case has required a
hearing in connection with a motion to tax costs, we cannot
conclude that an oral hearing was required here. We therefore
reject Tuttle’s contention that the trial court erred by failing to
hold an oral hearing before denying the motion to tax costs.
B. The Trial Court Did Not Abuse Its Discretion by
Ordering Costs “Without Evidence”
Tuttle next contends the trial court abused its discretion by
awarding costs to plaintiffs “without [any] evidence.” The claim
lacks merit.
12
First, Tuttle contends the trial court erred in awarding
costs because plaintiffs “filed no evidence to prove any of their
cost[s], except a memorandum of costs.” As plaintiffs correctly
note, however, the law is clear that the verified memorandum of
costs is prima facie evidence of their propriety. (612 South,
supra, 184 Cal.App.4th 1270, 1285; see also Nelson, supra,
72 Cal.App.4th at p. 131.) Here, plaintiffs timely submitted a
verified costs memorandum in the trial court, and thus they
made a prima facie case that those costs were recoverable.
Moreover, because plaintiffs’ claimed costs were facially proper—
that is, they were the kinds of costs specifically made recoverable
by rule 8.278(d)—the burden of showing that an item was not
properly chargeable or was unreasonable was on Tuttle, not on
plaintiffs. (Nelson, supra, 72 Cal.App.4th at p. 131.)
Second, Tuttle contends plaintiffs were not entitled to
recover their appellate filing fees “because government agencies
are not required to pay a filing fee under Cal. Gov. Code § 6103,”
and so if plaintiffs paid filing fees, it was “unreasonable” and a
“mistake.” Assuming without deciding that plaintiffs were not
required to pay appellate filing fees under Government Code
section 6103,7 those fees nonetheless would be recoverable under
Government Code section 6103.5, which provides that if a
judgment is recovered by a public agency not required to pay
filing fees, the judgment “shall include . . . the amount of the
filing fee . . . which would have been paid but for Section 6103,”
and when collected on the judgment, that amount is due and
7
Government Code section 6103, subdivision (a), provides
that filing fees are not required of public entities or public officers
acting in their official capacities.
13
payable to the court clerk. (Gov. Code, § 6103.5, subds. (a), (b),
italics added.) As one court has explained, “It is apparent that
section 6103.5 considers the filing fees to be an existing debt that
simply remains unpaid. Filing fees are therefore costs incurred
but not paid, which are recoverable under the general costs
statute.” (Guillemin v. Stein (2002) 104 Cal.App.4th 156, 163–
164.) The trial court therefore did not err in awarding filing fees;
indeed, it lacked discretion to do otherwise.8
Third, Tuttle contends plaintiffs were not entitled to
recover costs for the preparation of a respondents’ appendix
because “Tuttle prepared [an appellant’s] appendix and hence,
plaintiffs’ work was redundant.” As we have said, rule
8.278(d)(1)(B) specifically provides that a prevailing party is
entitled to recover fees associated with preparing the appellate
record, and thus these costs presumptively were recoverable.
Neither in the trial court nor on appeal did Tuttle present any
evidence that the respondents’ appendix was duplicative of the
appellant’s appendix; moreover, a cursory review of the
appendices filed in the prior appeal in which these costs were
incurred reveals that respondents’ appendix contains primarily
documents omitted from appellant’s appendix, and thus it was
not redundant of that appendix. The trial court thus did not err
in awarding plaintiffs record preparation fees.
Fourth, Tuttle contends that plaintiffs were not entitled to
recover the costs associated with obtaining a copy of the
8
On October 27, 2020, plaintiffs sought judicial notice of the
fact that they were required to pay, and actually paid, filing fees.
Because plaintiffs’ payment of filing fees is not relevant to our
analysis, we will deny the request for judicial notice.
14
reporter’s transcript because “Tuttle prepared and filed the
reporter[’s] transcript[]—not the plaintiffs,” and plaintiffs
purchased the transcript before the attorney fee award in the
underlying case was entered. We are not persuaded. Rule 8.278
specifically provides that a prevailing party is entitled to recover
the amount paid “for any portion of the record, whether an
original or a copy or both.” (Italics added.) Plaintiffs therefore
were entitled to recover the costs associated with procuring their
copy of the reporter’s transcript in the prior appeal from the
denial of attorney fees. Further, while rule 8.278 provides that a
prevailing party may not recover the cost “to copy part of a prior
record under rule 8.147(b)(2)” (italics added), there is no evidence
that any part of the reporter’s transcript for which costs were
awarded was part of the record of a prior appeal. Plaintiffs
therefore were entitled to recover the costs of obtaining a copy of
the reporter’s transcript.
Fifth, Tuttle urges that plaintiffs were not entitled to
recover $106 for printing and copying briefs because their brief
was unnecessarily long and “[b]y law, the plaintiffs, a
government agency, are only allowed to charge $0.15 a page.” In
fact, the cost “to print and reproduce any brief” is recoverable
pursuant to rule 8.278(d)(a)(E), and thus plaintiffs were entitled
to recover the printing costs they actually incurred to reproduce
their respondents’ brief. Moreover, Tuttle cites no authority, and
we are not aware of any, for the proposition that a government
agency may recover only 15 cents per page.9 The costs associated
with printing the respondents’ brief therefore were recoverable.
9
We decline to consider the unpublished superior court
ruling cited by Tuttle in which the court awarded copying costs of
15
Finally, Tuttle suggests plaintiffs should not have been
awarded anything for serving briefs and records because “[a]ll
service was done electronically or by email.” Tuttle provides
absolutely no evidence to support this claim, however, and
plaintiffs’ proofs of service in the prior appeal state that the
respondents’ brief and appendix were served on Tuttle’s attorney
and the trial court by mail. Thus, Tuttle has not established that
the trial court erred in awarding plaintiffs service costs incurred
in the prior appeal.
C. The Trial Court Did Not Abuse its Discretion by
Accepting a Cost Memorandum from an “Uninterested
Party”
Tuttle next contends that the trial court erred by accepting
a costs memorandum filed by Attorney Daniel Barer, whom
Tuttle characterizes as an “uninterested party.” In fact, Barer
was plaintiffs’ appellate counsel, and thus he was the proper
person to declare under penalty of perjury what plaintiffs’
appellate costs were. Further, the memorandum of costs on its
face reflected that it was filed on behalf of plaintiffs, who clearly
were interested parties. While Tuttle asserts Barer should not
$.15/page. (See, e.g., Aixtron, Inc. v. Veeco Instruments Inc.
(2020) 52 Cal.App.5th 360, 399 [refusing to consider
“unpublished, tentative decision from the superior court in
Los Angeles County . . . in an unrelated case that has no
precedential value and is not citable authority. (Cal. Rules of
Court, rule 8.1115(a) [unpublished appellate court or superior
court appellate department opinions ‘must not be cited or relied
on by a court or a party in any other action’]; Bolanos v. Superior
Court (2008) 169 Cal.App.4th 744, 761 [citation of unrelated trial
court order improper].)”].)
16
have been permitted to file the costs memorandum because he
was not counsel of record at the time he filed the costs
memorandum, Tuttle cites no authority for the proposition that a
party’s appellate counsel must file an association of counsel in
the trial court in order to file a cost memorandum on a client’s
behalf. We therefore conclude the trial court properly considered
the costs memorandum.
D. The Trial Court Did Not Abuse its Discretion by
Awarding Costs Under the Unclean Hands Doctrine
Tuttle contends, finally, that plaintiffs were not entitled to
an award of costs because they “acted and are still acting with
unclean hands.” Not so. A party who prevails in the Court of
Appeal in a civil case is statutorily entitled to recover appellate
costs (rule 8.278(a)(1) [prevailing party “is entitled to costs on
appeal”], italics added), and, moreover, this court expressly
awarded plaintiffs appellate costs in the prior appeal.
Accordingly, the trial court had no discretion to deny a costs
award on the basis of plaintiffs’ allegedly unclean hands. (See,
e.g., Snukal v. Flightways Manufacturing, Inc. (2000) 23 Cal.4th
754, 774, fn. 5 [“the terms of the remittitur define the trial court’s
jurisdiction to act”]; Griset v. Fair Political Practices Com. (2001)
25 Cal.4th 688, 701 [“The order of the reviewing court is
contained in its remittitur, which defines the scope of the
jurisdiction of the court to which the matter is returned.”].)
17
DISPOSITION
The order awarding appellate costs and denying Tuttle’s
motion to tax costs is affirmed. Respondents’ request for judicial
notice, filed October 27, 2020, is denied. (See fn. 8, ante.)
Respondents are awarded their appellate costs.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
EDMON, P. J.
We concur:
LAVIN, J.
EGERTON, J.
18