Thomas v. St. Joseph Health System CA4/3 ( 2021 )

Filed 10/20/21 Thomas v. St. Joseph Health System CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION THREE
JOHN THOMAS,
Plaintiff and Appellant, G059408
v. (Super. Ct. No. 30-2018-01006678)
ST. JOSEPH HEALTH SYSTEM et al., OPINION
Defendants and Respondents.
Appeal from an order of the Superior Court of Orange County, Martha K.
Gooding, Judge. Affirmed.
West, Webb, Allbritton & Gentry, Gaines West, Kyle Carney; Troutman
Pepper Hamilton Sanders and Oscar A. Figueroa for Plaintiff and Appellant.
Baker & Hostetler, Mark A. Kadzielski, Elizabeth M. Treckler and Jenna
N. Scott for Defendants and Respondents.
* * *
Plaintiff John Thomas appeals from an order awarding costs to defendants
St. Joseph Health System, Covenant Health System (CHS) and Covenant Medical Center
(CMC), after he voluntarily dismissed without prejudice his complaint as to all
defendants. He contends defendants’ costs memorandum was untimely, defendants were
not prevailing parties for purposes of costs recovery and certain costs were unreasonable
in amount or not reasonably necessary to the conduct of the litigation. We find no error
and affirm the order.
FACTS AND PROCEDURAL BACKGROUND
Plaintiff, a medical doctor, sued defendants alleging intentional interference
with the right to practice his profession and unfair competition. The facts underlying the
complaint are not relevant to the issues raised in this appeal.
CHS and CMC specially appeared to move to quash the service of
summons based on lack of personal jurisdiction. They also requested the court dismiss,
or alternatively stay, the action based on the doctrine of forum non conveniens, arguing
Texas was the proper forum for the case. St. Joseph Health System did not join those
motions; it separately demurred to the complaint and moved to strike portions of it.
At plaintiff’s request, and over defendants’ opposition, the court permitted
jurisdictional discovery as to CHS and CMC. Plaintiff engaged in discovery with respect
to the jurisdictional matters raised by defendants, with his counsel deposing five people.
Two of the depositions took place in Texas and the other three in California. Defendants’
counsel traveled to each of the depositions from Los Angeles.
After completing the depositions, plaintiff filed a written opposition to
defendants’ motions. He argued the court had personal jurisdiction over all defendants
and California was the most appropriate forum.
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The trial court held a hearing on all motions. Prior to the hearing, it issued
a tentative order concerning the demurrer and indicated it did not intend to rule on the
jurisdictional motions given its contemplated demurrer ruling. After hearing argument,
the court took the matters under submission.
A few days later, the court issued a minute order providing a tentative
ruling on the motion to quash and the forum non conveniens motion. It stated its further
consideration of the motions altered its decision to hold off ruling on them until plaintiff
filed an amended complaint. As for the merits, the court indicated its intent to grant the
motion to quash due to lack of personal jurisdiction over the moving defendants and
concluded the forum non conveniens motion was moot as a result. Because the parties
did not previously have an opportunity to address a tentative ruling concerning these two
motions, the court set a date for a final hearing on all pending motions.
Less than a week later, and prior to the scheduled hearing, plaintiff filed a
voluntary dismissal without prejudice of the entire action. The court clerk entered the
dismissal that same day.
Defendants filed a memorandum of costs, seeking roughly $10,800. The
majority of the costs were deposition related with the remaining costs relating to filing
and motion fees.
Plaintiff moved to strike costs or, in the alternative, to tax them. He argued
the cost memorandum was untimely, defendants were not “prevailing parties” for
purposes of cost recovery and the requested costs were not reasonably necessary to the
conduct of the litigation or reasonable in amount.
Following a hearing at which there was no appearance on plaintiff’s behalf,
the trial court rejected plaintiff’s arguments and awarded defendants the requested
amount. Plaintiff appealed.
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DISCUSSION
Plaintiff argues the trial court’s denial of his motion to strike or tax costs,
and its concurrent award of costs to defendants was error for three reasons. First, he
claims defendants’ cost memorandum was not timely. Second, he contends defendants
were not “prevailing parties,” as that term is defined in Code of Civil Procedure section
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1032. Third, he asserts the court erroneously failed to strike certain costs he
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characterizes as unreasonable and not supported by evidence. We find no error.
“The right to recover costs is entirely a creature of statute.” (Brown v.
Desert Christian Center (2011) 193 Cal.App.4th 733, 737.) “Except as otherwise
expressly provided by statute, a prevailing party is entitled as a matter of right to recover
costs in any action or proceeding.” (§ 1032, subd. (b).) “‘“The theory upon which
[costs] are allowed to a plaintiff is that the default of the defendant made it necessary to
sue him, and to a defendant, that the plaintiff sued him without cause. Thus the party to
1
All further statutory references are to the Code of Civil Procedure unless
otherwise specified.
2
The parties do not raise the issue of appealability, but we nevertheless address it
because appealability is jurisdictional. (Baker v. Castaldi (2015) 235 Cal.App.4th 218,
222.) There is a split of authority concerning whether a costs order entered after a
voluntary dismissal without prejudice is an appealable order. (Compare Gassner v. Stasa
(2018) 30 Cal.App.5th 346, 351-355 [costs order following voluntary dismissal without
prejudice is appealable “judgment” because it is a final determination of rights of the
parties in the action], with Mon Chong Loong Trading Corp. v. Superior Court (2013)
218 Cal.App.4th 87, 92 [costs order following voluntary dismissal without prejudice is
not appealable post judgment order, but appellate court in its discretion may treat appeal
therefrom as petition for writ of mandate].) We agree with the reasoning in Gassner,
which found such an order appealable as a final judgment. (Gassner, at pp. 354-355.)
Even assuming arguendo the costs order was not appealable, because plaintiff would
otherwise be deprived of any opportunity for appellate review of the trial court’s order,
we would exercise our discretion to treat the notice of appeal as a petition for a writ of
mandate.
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blame pays costs to the party without fault.”’” (DeSaulles v. Community Hospital of
Monterey Peninsula (2016) 62 Cal.4th 1140, 1147 (DeSaulles).)
The procedure for seeking to recover costs is specified in California Rules
of Court, rule 3.1700. It provides, in relevant part: “A prevailing party who claims costs
must serve and file a memorandum of costs within 15 days after the date of service of the
notice of entry of judgment or dismissal by the clerk under Code of Civil Procedure
section 664.5 or the date of service of written notice of entry of judgment or dismissal, or
within 180 days after entry of judgment, whichever is first.” (Cal. Rules of Court, rule
3.1700(a)(1).)
According to plaintiff, the court clerk signed his request for dismissal and
electronically served it on all parties on December 23, 2019. He contends defendants had
15 days from that date to file a memorandum of costs, but they did not do so. Instead,
they filed their costs memorandum 24 days later.
There is no record of a notice of entry of dismissal being served. Plaintiff
did not serve such a notice, even though he was obligated to so. (§ 1034, subd. (a); Cal.
Rules of Court, rule 3.1390.) The court clerk signed a copy of appellant’s request for
dismissal, indicating dismissal was entered on December 23, 2019. Even assuming
arguendo that document could function as a notice of entry of dismissal, there is no proof
it was served on the parties. The only proof of service in the record related to the
dismissal is one for plaintiff’s filing of the dismissal request.
Because nothing triggered the 15-day deadline, defendants had 180 days
from the entry of dismissal to file their memorandum of costs. (Cal. Rules of Court, rule
3.1700 (a)(1); see Gagnon Co. v. Nevada Desert Inn (1955) 45 Cal.2d 448, 455
[dismissal without prejudice has effect of final judgment because it concludes rights of
parties in the particular action].) There is no dispute they did so.
Turning to defendants’ entitlement to costs, section 1032 defines
“‘prevailing party’” as any one of the following: (1) a “party with a net monetary
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recovery”; (2) a defendant in whose favor a dismissal is entered”; (3) “a defendant where
neither plaintiff nor defendant obtains any relief”; or “(4) a defendant as against those
plaintiffs who do not recover any relief against that defendant.” (Id. subd. (a)(4).) This
list is not exhaustive. “[I]n situations other than as specified, the ‘prevailing party’ shall
be as determined by the court, and under those circumstances, the court, in its discretion,
may allow costs or not . . . .” (Ibid.)
Plaintiff argues defendants were not prevailing parties because his
voluntary dismissal without prejudice was not a dismissal entered in their favor. He
urges us to take a “pragmatic approach” to interpreting the statutory language and claims
the focus should be on “‘which party succeeded on a practical level’” and “‘which party
realized its litigation objectives.’” Plaintiff argues because the dismissal was without
prejudice and because he refiled the case against defendants in a federal district court in
Texas, alleging the same claims based on the same substantive facts, dismissal was not in
defendants’ favor. The same battle is ongoing, simply in a different forum.
Whether a party falls within one of the four categories authorizing the
recovery of costs as a matter of right is a question of law we review de novo. (Charton v.
Harkey (2016) 247 Cal.App.4th 730, 739.) Since the issue raised by plaintiff involves
determining the meaning of the phrase “in whose favor dismissal is entered,” we apply
traditional principles of statutory interpretation. We begin with the language of the
statute, giving the words their usual, ordinary meaning, and we end there if the words are
unambiguous. (Renee J. v. Superior Court (2001) 26 Cal.4th 735, 743.)
In their ordinary sense, the phrases “in favor of” or “in one’s favor” mean
“to the benefit of” or “to one’s advantage.” (Merriam-Webster Dict. Online (2021)
[as of Oct. 8, 2021], archived at:
.) Thus, when a dismissal is entered to the benefit of, or
to the advantage of, a defendant, the defendant qualifies as a prevailing party and is
entitled to costs as a matter of right.
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Here, plaintiff’s voluntary dismissal was preceded by a series of events. In
response to the complaint, two of the defendants moved (1) to quash service of summons
and the operative complaint due to lack of personal jurisdiction, and (2) to dismiss or stay
the litigation on the basis of forum non conveniens. The third defendant filed a demurrer
and motion to strike portions of the operative complaint. Jurisdictional discovery ensued
at plaintiff’s insistence, despite defendants’ objection, including five depositions which
took place in California and Texas.
Thereafter, the trial court held a hearing on all the motions. At that time, it
indicated to the parties it did not intend to rule on the motion to quash and the motion
grounded in forum non conveniens due to its tentative disposition of the demurrer. It
took the matters under submission and later changed course about ruling on the former
motions. The court issued a written “tentative ruling” granting the motion to quash based
on lack of personal jurisdiction and finding the forum non conveniens motion moot as a
result. “[B]ecause the parties did not have the opportunity to review a tentative ruling
and address argument to it, the [c]ourt continue[d] the hearing on all [pending] motions,”
setting a date certain for the hearing.
Four days after the court issued the tentative ruling in defendants’ favor,
plaintiff filed a request for voluntary dismissal without prejudice of the entire action.
Approximately five weeks later, plaintiff filed suit against defendants in a federal district
court in Texas—the very forum defendants had urged was proper—alleging similar state
and federal claims.
This procedural sequence of events leads to only one conclusion—
plaintiff’s voluntary dismissal was in defendants’ favor. The dismissal was not based on
a settlement or a stipulation of the parties, and there was no waiver of costs. (See
DeSaulles, supra, 62 Cal.4th at pp. 1152-1153 [voluntary dismissal following settlement
with net monetary recovery to the plaintiff does not entitle the defendant to costs as
prevailing party].) Rather, the dismissal appears to have resulted from plaintiff’s own
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recognition that the case was not viable in California, and instead needed to be filed in
Texas. As a result of the dismissal, defendants no longer had to defend a seemingly
untenable case against them in California. This type of situation is precisely the target of
the Legislature’s inclusion of dismissal as a basis for a defendant’s entitlement to costs.
(See id. at p. 1153 [section 1032 prevailing party “definition was intended to promote the
equitable rule that unsuccessful plaintiffs could not evade the cost statute by dismissing
their suit”].)
Contrary to plaintiff’s assertion, at the time of the dismissal in California,
there was no pending case filed in Texas. The fact the Texas case is ongoing is
irrelevant. The Texas case has a life of its own in a different forum, subject to different
procedural rules and potentially different substantive rules and law. Its pendency does
not impact the characterization of the way this case terminated.
Plaintiff’s reliance on attorney fees, particularly that concerning Civil Code
section 1717, is also misplaced. Civil Code section 1717 does not define “prevailing
party,” but it expressly states “there shall be no prevailing party for purposes of this
section” when an action is voluntarily dismissed. (Id., subd. (b)(2).) In contrast, section
1032 defines the term “prevailing party” and the definition is particular to by-right cost
recovery under that statute. (DeSaulles, supra, 62 Cal.4th at p. 1147.) We must assume
the Legislature meant what it said (Tracy v. Municipal Court (1978) 22 Cal.3d 760, 764),
and we may not add words to the statute under the guise of statutory interpretation
(Minish v. Hanuman Fellowship (2013) 214 Cal.App.4th 437, 468).
As for the costs awarded, plaintiff contends certain costs were unreasonable
and should have been stricken. Specifically, he argues approximately $8,000 in
deposition related costs were unwarranted because some amounts were for “unspecified”
items and other amounts were for local travel by defendants’ counsel. He further argues
even permissible travel costs were substantially larger than those incurred by his counsel
in conjunction with the depositions.
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Allowable costs under section 1032 must be “reasonable in amount” and
“reasonably necessary to the conduct of the litigation rather than merely convenient or
beneficial to its preparation.” (§ 1033.5, subds. (c)(2) & (3).) “‘If the items appearing in
a cost bill appear to be proper charges, the burden is on the party seeking to tax costs to
show that they were not reasonable or necessary. On the other hand, if the items are
properly objected to, they are put in issue and the burden of proof is on the party claiming
them as costs.’ [Citation.] We review for abuse of discretion the trial court’s
determination that costs were reasonably necessary.” (Lowry v. Port San Luis Harbor
Dist. (2020) 56 Cal.App.5th 211, 222.)
Deposition related costs are generally allowable unless the opposing party
demonstrates the taking of the deposition was unnecessary. (§ 1033.5, subd. (a)(3); see
County of Kern v. Ginn (1983) 146 Cal.App.3d 1107, 1113.) Plaintiff made no such
argument below and does not do so on appeal. And there is good reason. The
depositions were conducted at plaintiff’s request notwithstanding evidence from
defendants showing a lack of personal jurisdiction by California courts.
Focusing on defendants’ costs memorandum, plaintiff appears to challenge
its specificity, noting defendants did not simultaneously file what he refers to as a
“customary worksheet” breaking down the deposition related costs. But the only initial
requirement for a party requesting costs is the filing of a verified memorandum of costs.
(Cal. Rules of Court, rule 3.1700(a)(1).) The need for further detail and elaboration may
later present itself if the opposing party moves to tax costs and properly puts some or all
the costs at issue, as plaintiff eventually did here. Until that time, however, there is no
additional burden on the moving party.
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As for particular costs challenged through plaintiff’s motion to strike or tax
costs, the only specific costs plaintiff claims were erroneously awarded by the trial court
are travel related costs for defendants’ counsel to attend three depositions held in the city
of Irvine.3 He claims the depositions were “local” for defendants’ counsel and thus such
“routine” costs were unavailable. However, the sole California case plaintiff cites
concerns nondeposition related travel costs. (Ladas v. California State Automobile Assn.
(1993) 19 Cal.App.4th 761, 776.) He overlooks that “travel expenses to attend
depositions” are expressly made recoverable by the costs statute. (§ 1033.5, subd.
(a)(3)(C).)
Similarly, without merit is plaintiff’s assertion the travel costs for
defendants’ counsel to attend the two depositions held in Texas were unreasonable
because they were higher than his counsel’s travel costs. The fact that costs are not the
lowest possible does not make them inherently unreasonable. (Landwatch San Luis
Obispo County v. Cambria Community Services Dist. (2018) 25 Cal.App.5th 638, 646.)
A declaration by defendants’ counsel stated the roughly $1,550 in travel costs for the
three days spent in Texas for the depositions consisted of flights, lodging, parking and
meals. It is not beyond the bounds of reason to conclude such costs were reasonable
given that they only exceeded plaintiff’s counsel’s costs by about $450. (See Blackman
v. Burrows (1987) 193 Cal.App.3d 889, 893 [abuse of discretion shown when action is
arbitrary, capricious or without basis in reason].)
3 For the first time in his reply brief, plaintiff challenges the reasonableness of
costs associated with defendants’ rental of a videoconferencing facility to hold the three
Irvine depositions. “‘Obvious reasons of fairness militate against consideration of an
issue raised initially in the reply brief of an appellant.’” (Reichardt v. Hoffman (1997) 52
Cal.App.4th 754, 764.)
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DISPOSITION
The order is affirmed. Defendants are entitled to costs on appeal.
MARKS, J.*
WE CONCUR:
MOORE, ACTING P. J.
GOETHALS, J.
*Judge of the Orange Super. Ct., assigned by the Chief Justice pursuant to article VI,
section 6 of the California Constitution.
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