Zakarian v. Salumbides CA2/5 ( 2015 )

Filed 10/2/15 Zakarian v. Salumbides CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 FIVE
RAZMIK ZAKARIAN, B255237
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC152458)
v.
CONRAD A. SALUMBIDES, JR.,
Defendant and Respondent.
APPEAL from orders of the Superior Court of the County of Los Angeles,
Maureen Duffy-Lewis, Judge. Reversed and remanded.
Zee Law Group, Tappan Zee, Jamie San Gabriel for Plaintiff and Appellant.
Conrad A. Salumbides, Jr., in propria persona, for Defendant and Respondent.
INTRODUCTION
Plaintiff and appellant Razmik Zakarian appeals from postjudgment orders
granting the motion of defendant and respondent Conrad A. Salumbides, Jr. to tax
plaintiff’s costs and awarding sanctions against plaintiff or his counsel or both.1 Plaintiff
contends the trial court erred in granting the motion to tax costs because his
memorandum of costs after judgment was timely, and in it he did not request attorney
fees and did not seek accrued interest as items of costs. Plaintiff also contends the trial
court erred in granting defendant’s request for sanctions. We reverse and remand the
matter to the trial court.
BACKGROUND
Plaintiff filed a lawsuit against defendant that culminated in a judgment entered in
1998. Commencing in 2008, plaintiff filed at least six memoranda of costs after
judgment using Judicial Council form MC-012, the mandated form to be used to request
costs after judgment. In response to each of plaintiff’s memorandum of costs after
judgment, defendant filed a motion to tax costs. Each of defendant’s notices of motion to
tax costs provided that the motion was made pursuant to Code of Civil Procedure section
1033.5,2 and each of the motions stated, inter alia, that plaintiff’s memorandum of costs
after judgment was untimely pursuant to California Rules of Court, rule 3.1700(a). The
trial court granted each of defendant’s motions to tax costs, most of which orders state
that the “request for attorney fees as cost is untimely,” or “[a]ccrued interest in not an
item of cost.”
1
As plaintiff notes, the sanctions order does not state whether plaintiff or his
counsel is liable for the sanctions award or whether both are liable.
2
All statutory citations are to the Code of Civil Procedure unless otherwise noted.
2
The memorandum of costs after judgment at issue in this appeal was served by
plaintiff in December 2013, in which memorandum plaintiff requested under paragraph
number 1 a total of $90 in postjudgment costs, consisting of $25 in fees incurred for the
issuance of a writ for the enforcement of the judgment, and $65 in costs for the levying
officer’s fees. Plaintiff stated in his memorandum of costs after judgment that those costs
were incurred in March 2013.3 Plaintiff also acknowledged in paragraph 4 of the
memorandum of costs after judgment that there was a $4,520.28 “credit,” and stated in
paragraph 5 that the accrued interest on the judgment, accruing at the legal rate from the
date of entry on balances due after partial satisfactions and other credits, was
$119,754.46.
Defendant filed a motion to tax costs, and requested monetary sanctions pursuant
to section 128.7. The trial court granted defendant’s motion and request for sanctions,
stating, “Motion to tax costs GRANTED. [¶] Request for attorney fees as cost is
untimely and accrued interest is not an item of cost. [¶] Defendant’s request for
sanctions under California Code of Civil Procedure section 128.7 is GRANTED in the
amount of $7,500 payable within 30 days.”
DISCUSSION4
A. Motion to Tax Costs
Plaintiff contends that the trial court erred in granting defendant’s motion to tax
costs. Defendant contends, however, that plaintiff did not appeal from the order granting
defendant’s motion to tax costs because in plaintiff’s notice of appeal, plaintiff did not
check the box that he was appealing from “[a]n order after judgment under Code of Civil
3
Writs of execution were issued in March 2013 and January 2014.
4
The issues are the timeliness of the request for costs, and whether the statutory
requirements for sanctions were met. The record is adequate to address these issues.
3
Procedure section 904.1(a)(2).”5 According to defendant, plaintiff only appealed from
the order of sanctions against plaintiff. Defendant reasons that in plaintiff’s notice of
appeal, plaintiff checked only the box that he was appealing “[a]n order or judgment
under Code of Civil Procedure section 904.1(a)(3)-(13),” and section 904.1, subdivision
(a)(12) concerns an order of sanctions.6 We reject defendant’s contention.
Notices of appeal are liberally construed, and it “is sufficient if it identifies the
particular judgment or order being appealed.” (Cal. Rules of Court, rule 8.100(a)(2).)
Our Supreme Court has stated that, “‘[I]t is, and has been, the law of this state that
notices of appeal are to be liberally construed so as to protect the right of appeal if it is
reasonably clear what [the] appellant was trying to appeal from, and where the
respondent could not possibly have been misled or prejudiced.’ [Citations.]” (In re
Joshua S. (2007) 41 Cal. 4th 261, 272; Walker v. Los Angeles County Metropolitan
Transportation Authority (2005) 35 Cal. 4th 15, 22; Tourgeman v. Nelson & Kennard
(2014) 222 Cal. App. 4th 1447, 1455, fn. 6; Corenbaum v. Lampkin (2013) 215
Cal. App. 4th 1308, 1324, fn. 5.)
“The law aspires to respect substance over formalism and nomenclature.” (City of
Shasta Lake v. County of Shasta (1999) 75 Cal. App. 4th 1, 11.) In Ellis Law Group, LLP
v. Nevada City Sugar Loaf Properties, LLC (2014) 230 Cal. App. 4th 244, the appellant
filed a notice of appeal, checking the box on the notice of appeal specifying that it was
appealing an “‘order or judgment under Code of Civil Procedure section 904.1(a)(3)-
(13).’” (Id. at p. 250.) The respondent contended that the notice of appeal was defective
because the appellant did not check the correct box. (Ibid.)
5
Section 904.1, subsection (a)(2) provides that an appeal may be taken “[f]rom an
order made after a judgment made appealable by paragraph (1).” Subsection (a)(1) of
section 904.1 provides that an appeal may be taken from a judgment, except for certain
judgments not applicable here.
6
Section 904.1, subsection (a)(12) provides that an appeal may be taken “[f]rom an
order directing payment of monetary sanctions by a party or an attorney for a party if the
amount exceeds five thousand dollars ($5,000).”
4
In rejecting the respondent’s contention, the court In Ellis Law Group, LLP v.
Nevada City Sugar Loaf Properties, LLC, supra, 230 Cal. App. 4th 244 stated, “Given that
the appeal lies under Code of Civil Procedure section 904.1, subdivision (a)(2), [the
appellant] did check the wrong box on the notice of appeal form by indicating an appeal
based on subdivision (a)(3)-(13). However, the mistake is not fatal to the
appeal. . . . [A] notice of appeal is sufficient if ‘it is reasonably clear what appellant was
trying to appeal from, and where the respondent could not possibly have been misled or
prejudiced.’ [Citation.] Here, the notice of appeal clearly indicated the subject of the
appeal was the order entered on September 10, 2012, which can only refer to the order
granting attorney fees to [the respondent]. Consequently, the notice of appeal was
sufficient even if the wrong box was checked to identify the particular subdivision of
Code of Civil Procedure section 904.1 that authorizes this appeal.” (Id. at p. 251.)
The notice of appeal here stated that the subject of the appeal was the order
entered on March 5, 2014, and the March 5, 2014, minute order is comprised of only
three substantive sentences, two of which sentences relate to the grant of defendant’s
motion to tax costs, and one of which sentences relate to the grant of defendant’s request
for sanction. By indentifying that the subject of the appeal was the order entered on
March 5, 2014, “it is reasonably clear what [plaintiff] was trying to appeal from.” (In
Ellis Law Group, LLP v. Nevada City Sugar Loaf Properties, LLC, supra, 230
Cal.App.4th at p. 251.) Plaintiff tried to appeal both the order granting defendant’s
motion to tax costs and the order granting defendant’s request for sanctions. The notice
of appeal is sufficient to appeal both orders.
In addition, defendant has not been prejudiced. Not only did plaintiff indentify the
date of the order that was the subject of the appeal, he states in his opening brief that, “A
post judgment order . . . granting a motion to tax costs . . . is appealable under CCP §
904.1(a)(2) . . . ,” and argues extensively why the trial court erred in granting defendant’s
motion to tax costs. About two and one-half months later, defendant filed his brief.
Defendant accordingly was not mislead that plaintiff was appealing from the order
granting defendant’s motion to tax costs, and defendant had ample opportunity to respond
5
to plaintiff’s contention that the trial court erred in granting defendant’s motion to tax
costs. “Respondent is simply trying to take advantage of a mistake made by appellant.
[T]his court should not aid respondent unless compelled to do so by controlling principles
of law.” (Evola v. Wendt Construction Co. (1958) 158 Cal. App. 2d 658, 661.)
1. Standard of Review
We review a trial court’s order granting or denying a motion to tax costs for abuse
of discretion. (Seever v. Copley Press, Inc. (2006) 141 Cal. App. 4th 1550, 1556-1557.)
That is, we will reverse such an order only when the trial court’s action is arbitrary,
capricious or patently absurd, resulting in a manifest miscarriage of justice.
(People v. Carrington (2009) 47 Cal. 4th 145, 195; Ghadrdan v. Gorabi (2010) 182
Cal. App. 4th 416, 421; Maughan v. Google Technology, Inc. (2006) 143 Cal. App. 4th
1242, 1249-1250.) “Interpreting a statute is . . . a matter of law, which we review de
novo. [Citation.]” (Chaaban v. Wet Seal, Inc. (2012) 203 Cal. App. 4th 49, 52.)
2. Analysis
The trial court granted defendant’s motion to tax costs because plaintiff’s
“[r]equest for attorney fees as cost is untimely and accrued interest is not an item of
costs.” The trial court erred, as a matter of law, in so ruling however because defendant’s
motion to tax costs was based on authority concerning prejudgment, not postjudgment
costs; plaintiff’s memorandum of costs after judgment was timely; and in the
memorandum of costs, plaintiff did not request attorney fees and or seek to recover
accrued interest as items of cost, items which were the basis of the trial court’s decision.
Section 685.040 generally authorizes a judgment creditor’s recovery of
postjudgment enforcement costs. Section 685.050, subdivision (a) states that the
judgment creditor may recover certain specified postjudgment costs relating to the
enforcement of the judgment, and section 685.070, subdivision (b) permits the filing of a
memorandum of costs to recover them. On December 20, 2013, pursuant to section
6
685.070, plaintiff utilized judicial council form MC-012 to claim certain postjudgment
costs.
Section 685.070, subdivision (c) authorizes the judgment debtor to file a noticed
motion to have the postjudgment costs taxed. Defendant’s notice of motion to tax costs
here provides that the motion is made pursuant to section 1033.5. Section 1033.5 is the
wrong statute on which defendant may seek to tax plaintiff’s claimed costs after
judgment. Section 1033.5 authorizes a motion to tax prejudgment costs; “costs incurred
in the litigation up to and including entry of judgment.” (Lucky United Properties
Investment, Inc. v. Lee (2010) 185 Cal. App. 4th 125, 137.) Unlike section 685.070,
subdivision (c), it does not authorize a motion to tax postjudgment costs. “Costs of suit
incurred before entry of judgment are recoverable as part of the judgment. (The
procedure for claiming prejudgment costs and the recoverable costs are items set forth in
[sections] 1032-1038 and [California Rules of Court, rule] 3.1700.) [¶] A judgment
creditor also is entitled to the ‘reasonable and necessary costs’ incurred in enforcing the
judgment . . . .” (Ahart, Cal. Practice Guide: Enforcing Judgments and Debts (The
Rutter Group 2015) ¶ 6:33, p. 6A-16, first italics added; Lucky United Properties
Investment, Inc. v. Lee, supra, 185 Cal.App.4th at pp. 137-138.)
The trial court in granting defendant’s motion to tax costs stated, inter alia, that the
“Request for attorney fees as cost is untimely . . . . Defendant’s motion to tax costs stated
that plaintiff’s memorandum of costs after judgment was untimely pursuant to California
Rules of Court, rule 3.1700(a) because it was not served and filed by at least 180 days
after entry of judgment. Rule 3.1700(a) does not apply to the timeliness of plaintiff’s
memorandum of costs after judgment; it concerns the timeliness of a request for
prejudgment costs. (Kaufman v. Diskeeper Corp. (2014) 229 Cal. App. 4th 1, 7 [“Rule
3.1700 is entitled ‘Prejudgment costs.’ Rule 3.1700(a)(1) . . . addresses ‘[t]rial
costs’. . .”].) Plaintiff’s memorandum of costs after judgment was timely filed. A
memorandum of costs after judgment is timely if it is filed within two years after the
claimed costs have been incurred. (§ 685.070.) According to the memorandum of costs
after judgment, plaintiff’s claimed postjudgment costs were incurred about nine and one-
7
half months prior to the filing of the memorandum of costs. Defendant did not dispute
when the costs were claimed to have been incurred.
Plaintiff sought costs to which he was presumably entitled. Section 685.050,
subdivision (a) states that if a writ is issued to enforce a judgment, the costs and interest
to be satisfied in a levy under the writ include the fee for issuance of the writ and the
levying officer’s costs for performing the duties under the writ. Section 685.070, permits
the filing of a memorandum of costs regarding the enforcement of a judgment, stating
that the judgment creditor may claim as costs the fee for issuance of the writ and the
levying officer’s costs. Those costs may be claimed as a matter of right (Lucky United
Properties Investment, Inc. v. Lee, supra, 185 Cal.App.4th at p. 138), and plaintiff
claimed them. The memorandum of costs form provided that “[a]ttorney fees” may be
claimed “if allowed by Section 685.040,[7]” but plaintiff did not claim such fees.
The trial court in granting defendant’s motion to tax costs stated, inter alia, that
“accrued interest is not an item of costs.” Plaintiff did not seek accrued interest as an
item of costs. Section 695.210 provides in part, “The amount required to satisfy a money
judgment is the total amount of the judgment as entered or renewed with: [¶] . . . [¶] (b)
The addition of interest added to the judgment as it accrues pursuant to Sections 685.010
to 685.030, inclusive.” Section 685.010, subdivision (a) provides, “Interest accrues at the
rate of 10 percent per annum on the principal amount of a money judgment remaining
unsatisfied.” Judicial council form MC-012 requires a declaration of accrued interest;
“[i]nterest on the judgment accruing at the legal rate from the date of entry on balances
due after partial satisfactions and other credits . . . .” Plaintiff declared that accrued
7
Section 685.040 provides, “The judgment creditor is entitled to the reasonable and
necessary costs of enforcing a judgment. Attorney’s fees incurred in enforcing a
judgment are not included in costs collectible under this title unless otherwise provided
by law. Attorney’s fees incurred in enforcing a judgment are included as costs collectible
under this title if the underlying judgment includes an award of attorney’s fees to the
judgment creditor pursuant to subparagraph (A) of paragraph (10) of subdivision (a) of
Section 1033.5.” “The judgment creditor may claim costs authorized by Section 685.040
by noticed motion.” (Section 685.080, subdivision (a).)
8
interest totaled $119,754.46. That declaration of accrued interest in not set forth as an
item of costs that plaintiff was seeking.
The only costs sought by plaintiff were those specifically authorized by statute,
and they were timely. There was no apparent basis for the trial court to tax costs that
plaintiff sought. It is not clear, however, whether the trial court even addressed plaintiff’s
$90 in costs, as the minute order references only attorney fees, accrued interest, and
sanctions. Thus, we remand this matter to the trial court to determine if there is any basis
to tax the $90 in costs.
B. Sanctions
In defendant’s motion to tax costs, he requested that the trial court “permit” him to
file a motion for sanctions “Against Plaintiff and/or Plaintiff’s Counsel” pursuant to
section 128.7, “or in the alternative, impose monetary sanctions against Plaintiff’s
counsel in the amount of $10,000 for five years of continuous, unnecessary and frivolous
conduct.” Defendant contended that over the span of five years, the trial court granted
defendant’s motions to tax costs filed in response to each of “Plaintiff’s counsel’s
‘identical’ requests for costs.” Defendant argued that the trial court granted each of his
motions to tax costs “for the same legal reasons: untimeliness, and ‘accrued interest is
not a proper item of costs that would appear on a cost bill.’” Defendant argued in support
of his request for sanctions that the memorandum of costs after judgment that is at issue
on appeal, like plaintiff’s prior memoranda of costs, is “frivolous” and “only serve[s] to
compel all concerned . . . to unnecessarily expend time, effort, resources and money to
defendant unwarranted claims.”
Defendant failed to follow the requirements of section 128.7, including the
requirement that he file a separate motion for sanctions. In addition, because the trial
court erred in granting defendant’s motion to tax costs at issue here, the trial court could
not grant defendant’s request for sanctions, even if such a request was proper. The
failure to object would not forfeit the issue because there is no question that plaintiff did
not comply with section 128.7, a pure question of law that may be addressed on appeal.
9
(Martorana v. Marlin & Saltzman (2009) 175 Cal. App. 4th 685, 699-700; accord, Li v.
Majestic Industry Hills LLC (2009) 177 Cal. App. 4th 585, 593.)
DISPOSITION
The orders are reversed and the matter is remanded to the trial court consistent
with this opinion. Plaintiff is awarded his costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
MOSK, J.
I concur:
KRIEGLER, J.
10
TURNER, P.J., Concurring
I concur in the judgment. I agree that the motion to tax costs could not be granted
for the reasons stated. And as this is an error appearing on the face of the record, no
reporter’s transcript is necessary. (Kucker v. Kucker (2011) 192 Cal. App. 4th 90, 93
[“Since appellants have not provided a reporter’s transcript of the hearing on the petition,
‘we must treat this as an appeal “on the judgment roll.”[]. . . .’”]; Nielsen v. Gibson
(2009) 178 Cal. App. 4th 318, 325 [when no reporter’s transcript is provided, “review is
limited to determining whether any error ‘appears on the face of the record.’”] )
As to the Code of Civil Procedure section 128.7 sanctions issue, I would affirm for
the following reasons. Plaintiff, Tappan Zee, interposed the following written objection
to the sanctions motion—defendant, Conrad A. Salumbides, is a pro se litigant who
cannot recover attorney fees. (Musaelian v. Adams (2009) 45 Cal. 4th 512, 520; Sands &
Associates v. Juknavorian (2012) 209 Cal. App. 4th 1269, 1237.) That objection does not
address the broader issue of whether a sanction designed to deter frivolous conduct
should be imposed irrespective of costs or attorney fees. (Optimal Markets, Inc. v. Salant
(2013) 221 Cal. App. 4th 912, 920-91; Trans-Action Commercial Investors Ltd. v.
Firmaterr (1997) 60 Cal. App. 4th 352, 368-369.)
The sole grounds relied upon by the trial court, as set forth in its written statement
of reasons issued after the conclusion of the oral proceedings, for imposing sanctions
were: there had been six previous motions to tax costs; the attorney fee request was
untimely; and accrued interest was not a cost item. As my colleagues have explained, no
attorney fee request was made and costs were not sought for accrued interest. Thus, this
aspect of the trial court’s exercise of discretion is incorrect. And, it is questionable
whether Code of Civil Procedure section 128.7 can apply under these circumstances. The
triggering event for the filing of the sanctions motion was the submission of a proper cost
memorandum which was not frivolous in any respect. Simply stated, the sanctions order
cannot stand under the present circumstances.
A sound argument can be made that the judgment should be reversed as to the
sanctions issue but the trial court given leave to exercise its discretion on different
grounds. This is particularly true given the absence of an adequate record of the actual
hearing on the sanctions motion. (Maria P. v. Riles (1987) 43 Cal. 3d 1281, 1295; In re
Kathy P. (1979) 25 Cal. 3d 91, 102.) However, defendant has not sought such a
disposition in his brief nor at oral argument. Thus, he has forfeited the right to seek to
have the trial court reconsider its sanctions ruling once the remittitur issues. (Tiernan v.
Trustees of Cal. State University & Colleges (1982) 33 Cal. 3d 211, 216, fn. 4; Johnston
v. Board of Supervisors (1947) 31 Cal. 2d 66, 70 disapproved on another point in Bailey v.
County of Los Angeles (1956) 46 Cal. 2d 132, 139.)
TURNER, P. J.
2