Srabian v. Triangle Truck Center CA5 ( 2022 )

Filed 8/12/22 Srabian v. Triangle Truck Center CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
LUCILLE SRABIAN et al.,
F080066
Plaintiffs, Cross-defendants and
Respondents, (Super. Ct. No. 15CECG00439)
v.
OPINION
TRIANGLE TRUCK CENTER et al.,
Defendants, Cross-complainants and
Appellants.
APPEAL from a judgment of the Superior Court of Fresno County. Kimberly A.
Gaab, Judge.
Channaveerappa & Phipps, Naresh Channaveerappa and Albert Lee for
Defendants, Cross-complainants and Appellants.
Law Office of Armand Tinkerian and Armand Tinkerian for Plaintiffs, Cross-
defendants and Respondents.
-ooOoo-
SEE CONCURRING AND DISSENTING OPINION
Twin Falls Enterprises, Inc., doing business as Triangle Truck Center (Triangle)
and Larry Buehner (Buehner) (collectively, appellants) were jointly represented
codefendants and cross-complainants in a suit over the alleged conversion of a set of
truck trailers brought by respondents Morris and Lucille Srabian (collectively,
respondents).1 Respondents obtained a jury verdict against Buehner while the jury found
Triangle was not liable on any claims, and a directed verdict was entered against
appellants on their joint cross-complaint against respondents. Both Triangle and
respondents sought an award of costs, and appellants and respondents each filed motions
to strike or tax each other’s costs.
The trial court granted Triangle’s motion to strike respondents’ memorandum of
costs2 after finding Triangle was the prevailing party between itself and respondents but
denied Buehner’s motion to strike after finding respondents were prevailing parties over
Buehner and respondents’ cost memorandum substantially complied with procedural
requirements. The trial court partially granted Buehner’s motion to tax respondents’
costs. After supplemental briefing, the trial court denied respondents’ motion to strike
Triangle’s cost memorandum and partially granted their motion to tax Triangle’s costs.
Buehner and Triangle jointly appeal the trial court’s orders. Buehner claims the
trial court erred in denying his motion to strike respondents’ cost memorandum and,
alternatively, argues the trial court abused its discretion by failing to grant his motion to
tax certain cost items. Triangle contends the trial court erred in granting respondents’
motion to tax Triangle’s costs.
1 Morris Srabian passed away on January 23, 2020, after commencement of this
appeal. On November 10, 2020, this court granted Lucille Srabian’s motion to be
appointed Morris Srabian’s successor in interest. (Code Civ. Proc., § 377.32.)
Undesignated statutory references are to the Code of Civil Procedure.
2 A memorandum of costs is sometimes referred to as a cost memorandum or cost
bill.
2
We conclude the trial court did not err in denying Buehner’s motion to strike
respondents’ costs. As to the order taxing respondents’ cost memorandum, we conclude
respondents’ costs should have been taxed in the amount of $27,235.98, for a total cost
award of $24,660.59. As to the order taxing Triangle’s cost memorandum, we conclude
Triangle’s costs should have been taxed in the amount of $53,723.08, for a total cost
award of $7,411.33. The trial court’s July 31, 2019 and August 29, 2019 orders and
judgments shall be modified accordingly.
FACTUAL AND PROCEDURAL BACKGROUND
This case arises from the parties’ dispute over the purchase, ownership, and
possession of 10 sets of truck trailers. Respondents filed suit against Triangle and Jerry
Chiarito, among several others, on February 10, 2015, alleging claims for conversion and
elder abuse. Chiarito filed a cross-complaint against respondents for breach of a joint
venture and other related claims.
Respondents amended their complaint in January 2017, adding a claim for treble
damages under Civil Code section 3345. In March 2017, respondents filed a doe
amendment naming Buehner, Triangle’s president, as a defendant. Triangle and
Buehner, who were jointly represented, filed a cross-complaint against respondents and
Chiarito in November 2017 for breach of an oral contract, elder abuse, and declaratory
relief. Attorney David Fike, who represented both Chiarito and Triangle prior to
May 2017, substituted out as counsel for Triangle and Buehner due to a conflict of
interest discovered after Buehner joined the litigation, and Triangle and Buehner’s new
counsel retook six depositions. Fike withdrew as Chiarito’s attorney in January 2018,
and Chiarito represented himself through the remainder of the proceedings.
Prior to trial, three other defendants entered into settlement agreements with
respondents and were dismissed from the suit. Trial on respondents’ complaint against
Chiarito, Buehner and Triangle, and on their cross-complaints against respondents, began
in September 2018 and lasted 31 court days. The jury reached a special verdict as
3
follows: Chiarito and Buehner were found jointly and severally liable for $60,000 on
respondents’ conversion claim, which was reduced by $17,000 in offsets for the prior
good faith settlements, for a net judgment of $43,000. Chiarito recovered $37,150 on his
cross-complaint against respondents. Triangle was found not liable on respondents’
claims, and a directed verdict was granted in respondents’ favor on Triangle and
Buehner’s cross-complaint.
Costs and attorneys’ fees were sought by respondents and Triangle. Respondents,
and Triangle and Buehner jointly, filed motions to strike or tax each other’s claimed
costs. As pertinent here, appellants argued respondents’ cost memorandum should be
stricken because Triangle was the prevailing party entitled to costs, not respondents, and
respondents’ cost memorandum was not verified under penalty of perjury. Following
argument at a July 31, 2019 hearing, the trial court adopted its tentative ruling granting
Triangle’s motion to strike respondents’ cost memorandum as Triangle was the
prevailing party between it and respondents. The trial court denied Buehner’s motion to
strike finding: (1) respondents were the prevailing party as they obtained a net recovery
against Buehner; and (2) the cost memorandum substantially complied with the
verification requirement. The trial court partially granted Buehner’s motion to tax
respondents’ costs: it taxed $17,345.33 in costs and awarded respondents $34,551.24 in
costs against Buehner.
The hearing on respondents’ motion to strike Triangle’s cost memorandum was
continued so the parties could provide further briefing as to whether and how Triangle’s
costs should be apportioned to Buehner as a jointly represented but nonprevailing party.
After further briefing and another hearing on August 28, 2019, the trial court taxed
Triangle’s costs by $53,855.58 and awarded Triangle $7,278.83 in costs.3
3 At the conclusion of the August 28, 2019 hearing, the trial court took the matter
under submission. The following day, the trial court issued an order adopting its tentative
ruling without modifications.
4
Triangle and Buehner appeal both orders.
DISCUSSION
I. General Cost Award Principles and Standards of Review
Except as otherwise provided, a prevailing party is entitled as a matter of right to
recover costs in any action or proceeding. (§ 1032, subd. (b).) To obtain costs, the
prevailing party must file and serve a memorandum of costs, which “must be verified by
a statement of the party, attorney, or agent that to the best of his or her knowledge the
items of cost are correct and were necessarily incurred in the case.” (Cal. Rules of Court,
rule 3.1700(a)4 .) Copies of bills, invoices, statements, or other documentation need not
be attached to the memorandum (Jones v. Dumrichob (1998) 63 Cal.App.4th 1258,
1267), but the memorandum must provide enough detail to determine the cost sought is
statutorily awardable (Nelson v. Anderson (1999) 72 Cal.App.4th 111, 132 (Nelson)
[since cost memorandum did not state how subpoenas were served, it could not be
determined from the face of the cost bill whether those items were proper]).
If the items on the face of the cost memorandum appear to be proper charges, the
verified cost memorandum is prima facie evidence of their propriety, and it is the
challenging party who bears the burden to show the costs were not reasonable or
necessary. (Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774.)
To challenge costs, a party must file a motion to strike or tax the costs. A motion
to tax costs that disputes the nature or amount of particular costs generally must be
supported by declarations. (County of Kern v. Ginn (1983) 146 Cal.App.3d 1107, 1113–
1114.) Conclusory statements in a memorandum of points and authorities or a counsel’s
declaration will not suffice. (Rappenecker v. Sea-Land Service, Inc. (1979)
93 Cal.App.3d 256, 266 [conclusory statements in brief and declaration that certain costs
were included to circumvent settlement agreement in other cases insufficient to rebut
4 Further references to rules are to the California Rules of Court.
5
verified cost bill].) The mere filing of a motion to tax costs may be a proper objection to
an item if the necessity of that item appears doubtful, does not appear to be proper on its
face (Nelson, supra, 72 Cal.App.4th at p. 131), or presents a legal question (Fennessy v.
Deleuw-Cather Corporation (1990) 218 Cal.App.3d 1192, 1195–1996 [motion to tax
questioning entitlement to deposition costs incurred by all six defendants represented by
the same counsel was sufficient to place the cost at issue without additional declarations
or affidavits]). If section 1033.5 expressly allows the particular item and it appears
proper on its face, the burden is on the objecting party to show the costs to be
unnecessary or unreasonable. (Nelson, at p. 131.)
If costs are properly placed at issue, the burden of proof shifts to the party seeking
costs to justify them by providing evidence and supporting documentation that the costs
were reasonable and necessarily incurred. (Ladas v. California State Auto. Assn., supra,
19 Cal.App.4th at p. 774; see Jones v. Dumrichob, supra, 63 Cal.App.4th at p. 1267.)
Section 1033.5 lists the items allowable as costs and those that are not. Allowable
costs must be “reasonably necessary to the conduct of the litigation” and “reasonable in
amount.” (§ 1033.5, subd. (c)(2)–(c)(3).) The trial court has broad discretion to
determine what costs were reasonably necessary to the conduct of the litigation and
whether they were reasonable in amount. (Howard v. American National Fire Ins. Co.
(2010) 187 Cal.App.4th 498, 541; § 1033.5, subd. (c)(2).) Whether a cost item was
reasonable in amount and reasonably necessary to the litigation are questions of fact for
the trial court and its decision is reviewed for an abuse of discretion. (Berkeley Cement,
Inc. v. Regents of University of California (2019) 30 Cal.App.5th 1133, 1139, 1140; Doe
v. Los Angeles County Dept. of Children & Family Services (2019) 37 Cal.App.5th 675,
693.) The trial court’s exercise of that discretion will only be disturbed when there is no
substantial evidence to support the trial court’s findings or when there has been a
miscarriage of justice. (Frei v. Davey (2004) 124 Cal.App.4th 1506, 1512.) If the issue
6
is one of statutory construction, however, it presents an issue of law that is reviewed de
novo. (Segal v. ASICS America Corp. (2022) 12 Cal.5th 651, 658.)
II. Order Awarding Respondents’ Costs Against Buehner
Respondents’ cost memorandum, which was submitted on Judicial Council Forms,
form MC-010,5 sought a total of $51,896.57: $2,499.80 for filing and motion fees;
$2,263.40 for jury fees; $12,371.45 for deposition costs; $9,482.95 for service of process
costs; $18,047.90 for court reporter fees; and $7,231.07 for models, enlargements, and
photocopies of exhibits. No exhibits were attached to the cost memorandum and the
amounts sought were not broken down. Respondents’ trial attorney signed the cost
memorandum below the following preprinted statement: “I am the attorney, agent, or
party who claims these costs. To the best of my knowledge and belief this memorandum
of costs is correct and these costs were necessarily incurred in this case.”
Appellants filed a motion to strike respondents’ cost memorandum on the grounds
respondents were not the prevailing parties because Triangle was the mandatory
prevailing party and the cost memorandum was not verified under penalty of perjury, in
violation of rule 3.1700(a)(1). In their alternative motion to tax costs, appellants
challenged the propriety of certain costs.
In opposing the motions, respondents argued they were the prevailing party
against Buehner because they obtained a net monetary recovery, and the cost
memorandum was properly verified because it contained the exact language required by
rule 3.1700(a)(1). To support their claimed costs, respondents submitted the declaration
of their trial attorney, Jeff Reich, in which he declared that an attached nine-page exhibit,
labeled “Exhibit 1,” was his law firm’s final billing listing all the costs incurred in the
action, the exhibit accurately reflected the costs incurred in the case, and the bills were
necessary and proper expenses incurred in representing respondents in the action.
5 Further references to forms are to Judicial Council forms.
7
Respondents also submitted Lucille Srabian’s declaration, in which she stated true and
correct copies of “costs, bills, invoices and expenses” that respondents incurred in the
action were attached as “Exhibit 2,” which is comprised of approximately 175 pages of
invoices.
In its tentative ruling, which the trial court adopted as its order following oral
argument, the trial court denied the motion to strike respondents’ cost memorandum
against Buehner, finding: (1) respondents were the prevailing party as between
themselves and Buehner, since respondents had the net monetary recovery; and (2) while
the cost memorandum did not include the words “under penalty of perjury,” Buehner had
not identified any prejudice from the omission and, in any event, the signature block
substantially complied with rule 3.1700(a)(1). As for Buehner’s motion to tax costs, the
trial court taxed the jury fees $149.93 and court reporter costs $17,195.40 but declined to
tax the other costs. The trial court accordingly awarded respondents $34,551.24 in costs
against Buehner.
On appeal, Buehner argues the trial court erred in denying his motion to strike and,
alternatively, erred in declining to tax cost certain cost items. We address each motion
below.
A. The Motion to Strike
1. Verification of the Cost Memorandum
We first address Buehner’s contention respondents’ cost memorandum did not
comply with applicable verification requirements because it was not signed under penalty
of perjury. Buehner claims the language utilized on form MC-010 is insufficient because
rule 3.1700(a)(1) states the “memorandum of costs must be verified” and the word
“verified” means signed under penalty of perjury as provided in section 2015.5.
According to Buehner, the language on form MC-010 does not even substantially comply
with rule 3.1700(a)(1)’s verification requirement. Buehner notes the Judicial Council’s
8
mandatory form for seeking costs on appeal (form APP-013), the procedure for which is
also governed by rule 3.1700(a)(1), does contain a penalty-of-perjury recital.6
Respondents maintain the trial court did not abuse its discretion in refusing to
strike the memorandum because it was properly verified or, at the very least, it
substantially complied with rule 3.1700(a)(1). Respondents point out the memorandum
was signed and submitted with the required statement on optional form MC-010 that
contains no penalty-of-perjury recital. In fact, respondents note, as far back as 1999, this
form has not contained such a recital, and it has never been incorporated into any
subsequent revisions to the form. Respondents assert the consistent lack of a penalty-of-
perjury recital on the form, even after revisions, reflects the Judicial Council’s
interpretation of its own rule.7
We agree with respondents. Section 1034, subdivision (a) provides:
“Prejudgment costs allowable under this chapter shall be claimed and contested in
accordance with rules adopted by the Judicial Council.” The rule the Judicial Council
adopted, rule 3.1700(a)(1), 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 …. The memorandum of
costs must be verified by a statement of the party, attorney, or agent that to the best of his
or her knowledge the items of cost are correct and were necessarily incurred in the
case.” (Italics added.) Respondents clearly complied with the verification requirement
of rule 3.1700(a)(1) when their attorney signed under the statement on form MC-010 that
contained the italicized language.
6 We grant appellant’s June 10, 2021, request for judicial notice of form APP-013,
revised January 1, 2016.
7 This court previously granted respondents’ April 5, 2021, request for judicial
notice of form MC-010, revised July 1, 1999.
9
Judicial Council rules have the force of statutes so long as they are not inconsistent
with legislative enactments or constitutional provisions. (In re Richard S. (1991)
54 Cal.3d 857, 863.) Section 2015.5 is not inconsistent, as it merely provides, in relevant
part: “Whenever, under any law of this state or under any rule, regulation, order or
requirement made pursuant to the law of this state, any matter is required or permitted to
be supported, evidenced, established, or proved by the sworn statement, declaration,
verification, certificate, oath, or affidavit, in writing of the person making the same (other
than a deposition, or an oath of office, or an oath required to be taken before a specified
official other than a notary public), such matter may with like force and effect be
supported, evidenced, established or proved by the unsworn statement, declaration,
verification, or certificate, in writing of such person which recites that it is certified or
declared by him or her to be true under penalty of perjury, is subscribed by him or her,
and (1), if executed within this state, states the date and place of execution, or (2), if
executed at any place, within or without this state, states the date of execution and that it
is so certified or declared under the laws of the State of California.” (Italics added.)
By its terms, section 2015.5 is permissive, as it allows or permits a verification
requirement to be complied with by the described statement under penalty of perjury.
Section 2015.5, however, does not prescribe the sole necessary form of a verification. 8
As the Legislature expressly directed the Judicial Council to adopt rules for claiming and
contesting prejudgment costs in section 1034, subdivision (a), and respondents’ cost
8 Section 446, subdivision (a) also does not assist Buehner, as it also contains
permissive language. That section provides, in relevant part: “A person verifying a
pleading need not swear to the truth or his or her belief in the truth of the matters stated
therein but may, instead, assert the truth or his or her belief in the truth of those matters
‘under penalty of perjury.’ ” (Italics added.)
10
memorandum complied with the verification requirement found in the rule the Judicial
Council adopted, rule 3.1700(a)(1), respondents memorandum was properly verified.9
Moreover, respondents ultimately submitted Reich’s declaration with their
opposition to Buehner’s motion to strike, which he made under penalty of perjury, in
which he essentially declared the costs incurred were correct and necessarily incurred in
the case. Buehner asserts this cannot cure the failure to verify the original cost
memorandum under penalty of perjury, as rule 3.1700 requires the prevailing party to
serve and file a verified memorandum of costs within 15 days of the mailing of the notice
of entry of judgment. While the trial court may extend the time for filing the cost
memorandum by no more than 30 days (rule 3.1700(b)(3)), Reich’s declaration was filed
well after that time and could not correct the purportedly deficient verification in the cost
memorandum.
While the time provisions for filing a memorandum of costs are mandatory, they
are not jurisdictional. (Hydratec, Inc. v. Sun Valley 260 Orchard & Vineyard Co. (1990)
223 Cal.App.3d 924, 929.) The verification of the cost memorandum is analogous to a
verified complaint, where a defect in the verification is an irregularity that does not affect
jurisdiction and may be cured by amendment even when submitted after the statute of
limitations has run. (United Farm Workers of America v. Agricultural Labor Relations
Bd. (1985) 37 Cal.3d 912, 915.) Here, even though Reich’s declaration with his
9 None of the cases Buehner relies on hold the language required by section 3.1700
is insufficient to verify a memorandum of costs. (See Benach v. County of Los Angeles
(2007) 149 Cal.App.4th 836; Nelson v. Anderson, supra, 72 Cal.App.4th 111; Rayna R. v.
Superior Court (1993) 20 Cal.App.4th 1398; Russell v. Trans Pacific Group (1993)
19 Cal.App.4th 1717, superseded on other grounds as stated in Lee v. Wells Fargo Bank
(2001) 88 Cal.App.4th 1187, 1197; Ladas v. California State Auto. Assn., supra,
19 Cal.App.4th 761; People ex. rel. Dept. of Transportation v. Superior Court (1992)
5 Cal.App.4th 1480; Appleton v. Superior Court (1988) 206 Cal.App.3d 632; Brake v.
Beech Aircraft Corp. (1986) 184 Cal.App.3d 930; Sheeley v. Santa Clara (1963)
215 Cal.App.2d 83; Snodgrass v. Snodgrass (1930) 103 Cal.App. 412.)
11
verification of the claimed costs was submitted after the time for filing the memorandum
of costs, it related back to the filing of the memorandum, which was timely.10
As the cost memorandum properly was verified and, in any event, any deficiency
was cured by Reich’s later filed declaration, the trial court did not err in denying the
motion to strike on this ground.
2. Prevailing Party Finding
Buehner contends the trial court’s finding respondents were the prevailing party
against him is contrary to settled law because there can only be one section 1032
prevailing party and awarding costs to respondents led to an absurd result as he was
ordered to pay costs respondents incurred in losing to Triangle. Buehner asserts there is
no authority to award costs to a party who did not prevail in the action as a whole and the
only party who prevailed in the action as a whole was Triangle.
Section 1032, subdivision (a)(4) defines “prevailing party” for purposes of a
statutory award of costs to include “the party with a net monetary recovery” and “a
defendant as against those plaintiffs who do not recover any relief against that
defendant.” (§ 1032, subd. (a)(4).) “[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 and, if allowed, may apportion costs
10 We recognize Reich’s declaration was signed, “I declare under penalty of perjury
the foregoing is true and correct,” and dated, but it did not state next to the date the
location in California where it was executed, or that it was executed “under the laws of
the State of California” as required by section 2015.5. (Kulshrestha v. First Union
Commercial Corp. (2004) 33 Cal.4th 601, 610‒611 (Kulshrestha).) Buehner, however,
did not object on this basis below; therefore, he forfeited this “technical defect” and the
trial court did not err in accepting the declaration. (Fuller v. Goodyear Tire & Rubber
Co. (1970) 7 Cal.App.3d 690, 693 [lack of objection forfeits claim that declarations are
deficient because they fail to specify where they were executed]; accord, Rader v.
Thrasher (1972) 22 Cal.App.3d 883, 889 [objection that declaration failed to state it was
executed within the State of California cannot be raised for the first time on appeal].)
12
between the parties on the same or adverse sides pursuant to rules adopted under
Section 1034.” (Ibid.)
A defendant who defeats the plaintiff’s claim on a complaint but recovers nothing
on its cross-complaint against the plaintiff is a prevailing party entitled to costs. (Zintel
Holdings, LLC v. McLean (2012) 209 Cal.App.4th 431, 438.) Thus, Triangle, who
prevailed against respondents on their complaint but recovered nothing on its cross-
complaint against respondents, was a prevailing party between itself and respondents.
Respondents, however, qualified as a prevailing party under section 1032 in their
action against Buehner because they obtained a net monetary recovery against him. As
the trial court found, Buehner is jointly and severally liable for the $60,000 judgment
respondents obtained against he and Chiarito, less the $20,000 in setoffs resulting from
the settlements with other defendants, thereby making respondents the prevailing party
against Buehner.
Buehner argues respondents cannot be “the party with a net monetary recovery”
because they did not also obtain a net monetary recovery against Triangle. (§ 1032,
subd. (a)(4).) In Buehner’s view, respondents could not be a prevailing party under
section 1032 unless they obtained a net monetary recovery against all defendants.
Buehner, however, does not cite any authority to support his contention. To the contrary,
a plaintiff who receives a net monetary recovery against one defendant is entitled to costs
against that defendant even if a second defendant obtains a judgment against the plaintiff.
(Gibson v. Thrifty Drug Co. (1959) 173 Cal.App.2d 554, 556 [defendant who obtained
directed verdict against plaintiff entitled to costs against plaintiff, while plaintiff who
obtained jury verdict against another defendant was entitled to costs against that
defendant]; see Oakes v. McCarthy Co. (1968) 267 Cal.App.2d 231, 238, 256‒257
[plaintiffs who obtained jury verdict against some defendants but not others entitled to
recover costs as a matter of course from the defendants against whom they obtained
judgment].)
13
As these cases demonstrate, where there are multiple defendants, each is
considered separately when determining who is the prevailing party between the plaintiff
and each defendant. This principle also applies to suits involving one defendant and
multiple plaintiffs, as demonstrated in Andersen v. Pacific Bell (1988) 204 Cal.App.3d
277. There, the defendant obtained summary judgment against multiple plaintiffs,
although the action continued as to two plaintiffs. (Id. at pp. 281 & 282, fn. 3.) The
defendant was entitled to costs as a matter of right from the plaintiffs against whom it
obtained summary judgment without regard to any “hypothetical, future right” the
remaining plaintiffs might have to recover their costs if they ultimately won. (Id. at
pp. 286‒287.)
These cases show there can be multiple prevailing parties under section 1032 in an
action that involves multiple plaintiffs or defendants. While Buehner asserts there can be
only one section 1032 prevailing party entitled to mandatory costs, the authorities he cites
do not involve multiple plaintiffs or defendants. At best, they stand for the proposition
that a single plaintiff and single defendant cannot both be prevailing parties against each
other under section 1032. (McLarand, Vasquez & Partners, Inc. v. Downey Savings &
Loan Assn. (1991) 231 Cal.App.3d 1450, 1454‒1455 [“when neither the plaintiff nor the
defendant who has filed a cross-complaint prevails, the defendant is the prevailing party
entitled to costs”]; Cal. Judges Benchbook: Civil Proceedings – Trial (CJER 2021)
Costs, Attorney’s Fees, and Interest, § 16.6, p. 948, citing Sharif v. Mehusa, Inc. (2015)
241 Cal.App.4th 185, 194 [for cost awards under § 1032, subd. (a)(4), “there is a single
prevailing party”; case involved one plaintiff and one defendant].)
Buehner complains that allowing respondents to recover costs against him is
unfair because he is required to pay costs respondents incurred in losing to Triangle. But
that is not a reason to strike the entire cost bill. Rather, Buehner could challenge certain
cost items on the ground he is not liable for costs respondents owe Triangle. (Gibson v.
Thrifty Drug Co., supra, 173 Cal.App.2d at p. 556 [plaintiff may not recover amounts she
14
is liable for due to an unsuccessful prosecution of an action against a third party as well
as against a defendant as to who she is successful].)
In sum, the trial court did not err in finding respondents were the prevailing party
against Buehner and denying his motion to strike on that ground.
B. The Motion to Tax Costs
1. Models, Blowups, and Photocopies of Exhibits
In their cost memorandum, respondents sought an aggregate amount of $7,231.07
for models, blowups, and photocopies. In the motion to tax costs, Buehner’s attorney
declared respondents did not use any models or blowups at trial and they offered only
497 pages of trial exhibits that were admitted into evidence, which would reasonably cost
only $49.70 to photocopy at 10 cents per page. In their opposition to the motion,
respondents asserted their cost memorandum identified the amount claimed, which costs
were “clearly identified” in the exhibits attached to Lucille’s and Reich’s declarations.
While Buehner’s reply did not address this issue, Buehner’s attorney argued at the
hearing on the motion that none of the invoices supported the $7,231.07 claimed. The
attorney repeated his assertion that approximately 497 pages of actual trial exhibits were
used and asked the court to apply a reasonable rate, such as 10 cents per page, for
photocopying trial exhibits. The trial court declined to tax these costs, explaining
Buehner failed to contest or object to the “extensive documentation” respondents
provided.
On appeal, Buehner contends the trial court’s order should be reversed because:
(1) he was not required to contest or object to the documentation in his reply brief and he
objected orally at the hearing; (2) it is undisputed respondents had no models or blowups;
and (3) respondents did not refute they offered only 497 pages of trial exhibits or that the
reasonable cost to photocopy those pages was 10 cents per page. Buehner asserts a
source check of respondents’ supporting documents shows there is nothing to support an
award for models, blowups, or photocopies of exhibits; therefore, the trial court abused
15
its discretion in declining to tax costs and respondents should be awarded only $49.70 as
recoverable costs.
Section 1033.5 expressly allows for the recovery of the costs of “[m]odels, the
enlargements of exhibits and photocopies of exhibits … reasonably helpful to aid the trier
of fact.” (§ 1033.5, subd. (a)(13).) This category of costs is broad and may include items
such as photocopying of exhibits, the rental of equipment such as projectors and
technicians (Ripley v. Pappadopoulos (1994) 23 Cal.App.4th 1616, 1623 [projector]);
(Green v. County of Riverside (2015) 238 Cal.App.4th 1363, 1373–1374 [technician to
“monitor … equipment and quickly resolve any glitches”]), and the creation of videos or
PowerPoint presentations and the personnel to support them (Science Applications
Internat. Corp. v. Superior Court (1995) 39 Cal.App.4th 1095, 1104 [creation of videos];
Bender v. County of Los Angeles (2013) 217 Cal.App.4th 968, 990–991 [PowerPoint
presentations and personnel to support them]).
Respondents’ memorandum of costs listed only a cost total for this entire category
without providing a single detail. While these costs are expressly allowed by statute, an
aggregate dollar amount without any itemization does not provide a basis to conclude the
costs are facially proper and reasonable in amount. When it cannot be determined if a
cost item is facially proper, the cost memorandum is insufficient to constitute prima facie
evidence of the necessity or reasonableness of the cost sought and an objection to such an
item, even without supporting evidence, shifts the burden to the party seeking the cost to
provide evidence of the cost’s reasonableness. (Nelson, supra, 72 Cal.App.4th at p. 132.)
Respondents’ cost memorandum was insufficient to constitute prima facie evidence of
the necessity or reasonableness of the costs sought and Buehner’s objection shifted the
burden to respondents to provide evidence of the necessity for and reasonableness of
costs.11
11 Respondents contend Buehner waived this issue by failing to raise the issue in a
timely manner, citing a case that involves invited error, Van Sickle v. Gilbert (2011)
16
While respondents provided a summary of expenses in the billing statement
attached to Reich’s declaration and attached invoices to Lucille’s declaration, they did
not offer a complete list of the costs claimed in this category or otherwise explain the
necessity of the costs. Our review of the invoices does not reveal any charges that would
fall within this category and while there are items in the billing statement attached to
Reich’s declaration that could fall within this category, respondents do not explain how
these items were necessary to aid the jury. The trial court placed the burden on Buehner
to challenge the invoices, but it was respondents’ burden to provide substantiating
evidence, not Buehner’s. As the cost memorandum did not constitute prima facie
evidence of the reasonableness or proper nature of the costs, the trial court erred in
declining to tax this cost upon Buehner’s objection. (See Nelson, supra, 72 Cal.App.4th
at p. 132; cf. Benach v County of Los Angeles, supra, 149 Cal.App.4th at pp. 856‒857
[court’s award of photocopying costs not abuse of discretion because it was supported by
cost memorandum and supporting documents].) The cost award of $7,231.07 for models,
blowups, and photocopies of exhibits is stricken.
2. Deposition Costs
In moving to tax the $12,371.45 in deposition costs respondents were seeking,
Buehner’s attorney asserted he asked respondents to provide a breakdown of their costs
and supporting invoices, but they did not, and without that, he was prevented from
providing a detailed explanation why the costs should be taxed. Buehner nevertheless
argued the costs were excessive because Triangle paid a higher price for taking and
transcribing the depositions, and for original transcripts, because it noticed most of the
depositions, and he should not be saddled with deposition expenses incurred prior to his
being brought into the action on March 10, 2017.
196 Cal.App.4th 1495, 1528. However, Buehner did raise the issue by objecting in his
motion to tax costs.
17
In their opposition, respondents asserted Reich’s declaration and accompanying
exhibits confirmed the amount sought; the statute does not authorize reduction of costs
based on the party’ court reporters are not allowed to charge parties different fees for
deposition transcripts; and the depositions were necessary to prosecute the case against
all parties, including the claims and defenses against Triangle and Buehner.
While Buehner’s reply did not address this issue, Buehner’s attorney stated at oral
argument on the motion that from his detailed review of the invoices, they only supported
$9,711.27 in deposition costs. He further argued costs should be apportioned because
some were incurred well before Buehner was named as a defendant in March 2017. In
declining to tax costs, the trial court explained Buehner failed to provide any further
objection in his reply brief after respondents provided support for the deposition costs,
respondents argued the deposition costs were necessary for their arguments and
preparation for trial, and Buehner did not provide any legal authority for his position that
he should not be required to pay costs from before he entered the lawsuit.
On appeal, Buehner argues he was not required to object in his reply brief, and he
did object at the hearing by arguing respondents’ invoices did not add up to the claimed
deposition costs. Buehner asserts the listing of deposition costs attached to Reich’s
declaration only adds up to $11,651.43, which includes duplicative deposition costs, and
when the actual invoices attached to Lucille’s declaration are examined, the deposition
costs add up only to $9,771.43. Buehner argues because substantial evidence does not
support the trial court’s ruling, the trial court abused its discretion in declining to tax the
deposition costs.
We agree. Respondents’ memorandum of costs listed only a total for deposition
costs without providing cost details, for example, segregating them by deponent. While
these costs are expressly allowed by statute, an aggregate dollar amount without any
itemization does not provide a basis to conclude the costs are facially proper and
reasonable in amount. Buehner’s objection to the costs as excessive therefore placed the
18
burden on respondents to provide evidence of the reasonableness of the claimed
deposition costs. (Nelson, supra, 72 Cal.App.4th at p. 132.)12
While the billing summary attached to Reich’s declaration includes deposition
costs, and there are deposition invoices attached to Lucille’s declaration, respondents did
summarize or itemize the deposition costs. The trial court placed the burden on Buehner
to point out the deficiencies in the claimed costs once respondents produced the billing
summary and invoices, but that was not his burden. Moreover, he did object at the
hearing.
The issue before us is whether there is substantial evidence to support the trial
court’s decision to award $12,371.45 in deposition costs. Buehner points us to the
deposition invoices attached to Lucille’s declaration, which he asserts adds up to
$9,771.43. Our review of those invoices shows they actually add up to $9,711.87. We
agree with Buehner the remaining invoices attached to Lucille’s declaration are either not
for deposition costs or are duplicative. Accordingly, the evidence supports an award of
$9,711.87 in deposition costs, not the $12,371.45 claimed by respondents.
Respondents contend Buehner waived this issue by not raising it earlier. Buehner,
however, objected to the costs as excessive in his motion to tax costs and at oral
argument on the motion. Respondents contend we cannot second guess the trial court’s
finding they provided support for the deposition costs, citing the abuse of discretion
standard articulated in Goodman v. Lozano (2010) 47 Cal.4th 1327, 1339. Our review for
whether that support justifies the amount of costs, however, is for substantial evidence.
(Frei v. Davey, supra, 124 Cal.App.4th at p. 1512 [where trial court makes no findings,
the reviewing court infers all findings necessary to support the judgment and examines
the record to see if substantial evidence supports the implied finding].) We infer from the
12 Respondents contend Buehner waived this issue by failing to raise the issue in a
timely manner, but Buehner did raise the issue by objecting in his motion to tax costs.
19
trial court’s ruling that it found the documents respondents provided supported the
amount of claimed deposition costs. But, as we have explained, the invoices do not
support the total amount claimed. Respondents do not contend otherwise or point us to
documents that support an award of additional costs. Accordingly, the trial court erred in
not taxing these costs, which should be taxed by $2,659.58 ($12,371.45 minus
$9,711.87).
3. Filing and Motion Fees and Jury Fees
Respondents sought $2,499.80 in filing and motion fees, which they claimed under
item one of the cost memorandum, and $2,263.40 in jury fees, which they claimed under
item two of the cost memorandum. In his motion to tax costs, Buehner argued the filing
and motion fees were inflated, as respondents only incurred $995 in filing and motion
fees for the first paper filing fee and motion and stipulation filing costs, which should be
reduced by $300 because respondents filed motions that were neither reasonable nor
necessary. Buehner asserted the filing and motion fees claimed should be taxed by
$1,704.50, leaving $695 in allowable costs. With respect to the claimed jury fees,
Buehner argued they should be taxed because it was unknown how respondents came up
with $2,263.40, as the trial court’s records indicated respondents paid only $150 in jury
fees, while Triangle and Chiarito paid a total of $4,526.94. Buehner asserted the claim
therefore should be taxed by $2,113.40, leaving a net allowable amount of $150.
In their opposition, respondents asserted under a heading entitled, “The $2,499.80
for Filing, Motion & Jury Fees Are Recoverable,” the claimed expenses were clearly
identified in the supporting documentation. Respondents gave the following as examples
of “court filing fees”: (a) $435; (b) $65.40 for a motion; (c) $24.20 for a stipulation;
(d) $3.60 for an amended complaint; (e) $7.20 for two requests for dismissal; (f) $3.50
for a proof of service; (g) $60 times two, $5.40 times two, $3.60 and $20 for a first
amended complaint; (h) $3.60 for a filing fee; (i) “$2,113.47 (jury fees)”; (j) $3.60 times
three for proposed and actual special verdict and jury instructions; (k) $3.60 times two for
20
filing fees; and (l) $103.42 for a joint list of instructions. As for Buehner’s contention
they should be taxed $300 for unreasonable and unnecessary motions, respondents argued
the denial of a motion did not mean it was neither reasonable nor necessary. Under a
separate heading, respondents argued the $2,263.40 in jury fees were recoverable because
the documents they provided supported that amount.
Buehner’s reply brief did not address this claim, but at the hearing, Buehner’s
attorney argued because respondents’ opposition admitted $2,113.47 in jury fees was
included in their claim for filing and motion fees, the filing and motion fees should be
reduced by $2,113.47. The trial court, in addressing the filing and motion fees, noted
Buehner was arguing the figure was inflated because some of the fees were for motions
that were not reasonably necessary. The trial court declined to tax the filing and motion
fees, as it agreed with respondents the denial of a motion did not mean it was
unnecessary. With respect to jury fees, the trial court decided to tax the claimed cost by
$149.93, as the exhibit attached to Reich’s declaration evidenced a jury fee of $2,113.47
was paid.
On appeal, Buehner asserts because respondents admitted in their opposition to the
motion to tax costs that the filing and motion fees claimed in item one included $2,113.47
in jury fees and respondents also claimed as jury fees the same amount under item two,
the trial court erred by allowing a duplicative recovery of $2,113.47 in jury fees when it
refused to tax the filing and motion fees claimed in item one. Buehner argues there is no
basis to allow double recovery of jury fees and therefore the total cost award should be
reduced by $2,113.47.
It is not clear, however, that the jury fees were included with the filing and motion
fees. While the costs respondents listed as examples of court filing fees did include jury
fees, when the other costs are added up with the jury fees, the amount exceeds the
$2,499.80 claimed. Our review of the billing summary attached to Reich’s declaration
shows there are additional filing and motion fees that were not included in the example
21
respondents gave in their opposition to the motion to tax costs. Therefore, Buehner has
not shown the trial court abused its discretion in awarding both $2,499.80 in filing and
motion fees and $2,113.47 in jury fees.
4. Service of Process Costs
Respondents sought an aggregate amount of $9,482.95 for costs of service of
process. Buehner argued below these costs should be taxed because respondents did not
specify who conducted the service and how service was effectuated despite being
requested to do so. Buehner pointed out respondents sued at least seven named
defendants, but only three went to trial, with the other defendants either being dismissed
or settled with respondents agreeing to bear their own costs. Buehner asserted the
claimed amount was patently unreasonable, as it broke down to $3,160.98 per defendant.
In their opposition, respondents asserted service on every person was “clearly
identified” in the exhibits attached to Reich’s and Lucille’s declarations, and Buehner
failed to provide legal authority that their costs must be reduced because some defendants
were dismissed or settled. Respondents argued Buehner was misleading the court by
claiming $3,160.98 per person in service of process costs for three defendants, as service
of process consisted of multiple legal documents for multiple persons, including all
defendants, cross-defendants, and third-party witnesses and custodians of record.
While not addressed in his reply brief, at oral argument, Buehner’s attorney argued
the invoices showed respondents incurred $638.16 to serve parties who settled with
respondents, in which respondents agreed to bear their own costs, which Buehner should
not be forced to pay. The attorney further argued: (1) respondents were not entitled to
$63.77 incurred to serve Triangle; (2) only $109 was incurred to serve Buehner with a
summons; (3) another $109 was incurred to serve Robert Vera, who was a third party;
(4) while invoices attached to Lucille’s declaration totaled $2,167.04, they did not detail
the purpose for the messenger deliveries and clearly were not service of process costs
because they likely were incurred to serve documents on other parties; (5) $262.08 was
22
incurred to serve Chiarito, which was not Buehner’s responsibility; and (6) the remaining
portion of the claimed service of process costs were for messenger fees, which are not
service of process fees.
In declining to tax the service of process costs, the trial court explained Buehner
did not provide any legal support for his assertion that costs should be reduced because
certain parties settled and service costs were incurred not just for service of process of
pleadings, but for all other documents and subpoenas.
On appeal, Buehner argues the trial court should have taxed the service of process
costs because: (1) $638.16 of the claim was incurred to serve parties who settled with
respondents in which respondents agreed to bear their own costs and were not reasonably
incurred against Buehner; (2) $63.77 was incurred to serve Triangle; (3) $262.08 was
incurred to serve Chiarito; and (4) respondents misclassified messenger fees and expert
witness fees as service of process costs, noting the invoices for respondents’ two retained
expert witnesses are included with the invoices respondents submitted in support of the
cost claim. Buehner also asserts respondents’ claim is insufficient because they failed to
identify who served the process and how it was served.
“Whether and in what amount the expenses for service of process are allowed
depends upon who served the process and what amount is allowed to a public officer in
this state for such service.” (Nelson, supra, 72 Cal.App.4th at p. 132; § 1033.5,
subd. (a)(4).) Since respondents’ cost memorandum, which sought $9,482.95 in service
of process costs without itemization or explanation and which does not state how the
subpoenas were served, it cannot be determined from the face of the cost bill whether the
items are proper. (Nelson, at p. 132.)
As the cost memorandum was insufficient, on Buehner’s objection, it was
respondents’ burden to establish the necessity and reasonableness of the service costs.
Respondents provided a summary of invoices from First Legal, along with the actual
invoices, to support the claimed costs, which identified who was served and when. While
23
the invoices do not expressly state how process was served, and neither Reich’s nor
Lucille’s declaration address that issue, the trial court reasonably could infer from the use
of a process service company that service was accomplished by registered process server.
(Citizens for Responsible Development v. City of West Hollywood (1995) 39 Cal.App.4th
490, 506 [no abuse of discretion in awarding service of process costs where the party
seeking costs set forth in detail in its cost memorandum each item of service claimed,
attached copies of proofs of service to its opposition to the motion to tax costs, and each
item was served by a registered process server].)
As for the specific items Buehner challenges on appeal, he has not shown the trial
court abused its discretion in declining to tax costs. Buehner asserts he should not be
responsible for the costs of serving Triangle and Chiarito, but only makes conclusory
allegations as to why he should not be charged and does not cite any authority to support
his contention. As for the cost of serving the defendants who settled before trial, with
whom respondents agreed to waive costs, Buehner does not have the right to benefit
from the cost-waiver provisions of those settlement agreements. (Nelson, supra,
72 Cal.App.4th at pp. 129‒130.) The trial court reasonably could find the costs of service
were reasonably necessary to the conduct of the litigation.
As for Buehner’s claims respondents misclassified messenger and expert witness
fees as service of process costs, Buehner does not identify what invoices were incurred
for messenger fees and while respondents provided invoices for expert witness fees and
costs with Lucille’s declaration, the summary of First Legal’s invoices does not include
the expert witness fees and costs. The cost summary, which totals $9,532.80 when
$2,020.65 in deposition costs are deducted from the $11,553.45 total, provides substantial
evidence to support the trial court’s award of $9,482.95 in service of process costs.
Accordingly, the trial court did not abuse its discretion in declining to tax these costs.
24
III. Order Granting Respondents’ Motion to Tax Triangle’s Costs
Triangle submitted a verified cost memorandum seeking a total of $61,134.41:
$555 for filing and motion fees; $3,320 for jury fees; $15,951.69 for deposition costs;
$4,568.20 for service of process costs; $300 for witness fees; $19,087.29 for court
reporter fees; $462.85 for models, enlargements, and photocopies of exhibits; $276.47 for
electronic filing or service fees; and $16,612.91 for lodging, food, toll, and mileage costs
related to trial, and costs related to CourtCall, overnight delivery, and postal services.
Respondents filed a motion to strike those costs, arguing Triangle was not a
prevailing party. Alternatively, and relevant to the issues on appeal, respondents argued
Triangle’s costs must be apportioned among the defendants and Triangle’s deposition
costs were duplicative.
After ordering supplemental briefing, the trial court granted respondents’ motion
to tax Triangle’s costs, ordered costs taxed by $53,855.58, and awarded Triangle
$7,278.83. On appeal, Triangle challenges several aspects of the trial court’s order.
A. Triangle’s Burden of Proof
Triangle contends the order taxing its costs should be reversed because
respondents did not support their motion to tax costs with sufficient evidence to show the
claimed costs were unnecessary or unreasonable. Triangle points out that while
respondents submitted the declaration of attorney Paul Hager in support of their motion,
Hager did not address either the reasonableness or the necessity of the cost items.
Instead, Hager addressed the events surrounding the taking of the depositions and
Chiarito’s roll in the litigation. Triangle further points out respondents submitted the
declaration of attorney Armand Tinkerian with their supplemental reply brief, in which
he stated only that he told Triangle’s attorney that court reporter fees should be limited to
$55 per day and attorneys cannot claim their lodging or food as costs. Triangle asserts
these declarations are insufficient to satisfy respondents’ burden of proof.
25
In their motion, respondents primarily contested Triangle’s costs on the ground
they needed to be apportioned between Triangle and the nonprevailing defendants,
Buehner and Chiarito. Respondents argued the filing fees, jury fees, cost of service of
process, and court reporter fees needed to be apportioned, the second round of
depositions were not necessary or permissible costs for Triangle’s defense of the
complaint, no models or enlargements were produced, and the fees for the category
labeled “other costs” appeared unnecessary and unreasonable.
In its opposition to the motion, Triangle argued respondents failed to meet their
burden of proving the cost items were not allowable. While Triangle submitted
declarations from Buehner and its attorneys, Triangle did not supply any invoices or other
documentation of the claimed costs. In their reply, respondents argued the entire cost
memorandum should be stricken because Triangle failed to produce documents to
support its claimed costs. Triangle filed objections to respondents’ reply, along with
supporting supplemental declarations. Triangle argued it was not obligated to present
documentation in support of its cost memorandum because respondents had not made a
sufficient objection to shift the burden of proof to Triangle. Triangle’s attorney declared
the claims for filing and jury fees were supported by the court’s online register of actions,
while the other components of the cost claim were supported by those invoices the
attorney’s office was able to locate, which were attached as Exhibit O. The attorney
further declared there may be other invoices, but they had not been located.
The trial court, in continuing the hearing on respondents’ motion, ordered the
parties to address the apportionment standards articulated in Charton v. Harkey (2016)
247 Cal.App.4th 730, 743‒745.13 With respect to whether Triangle was required to
13 Under Charton, “[a] prevailing party who is represented by the same counsel as a
nonprevailing party may only recover those costs the prevailing party incurred and were
reasonably necessary to the prevailing party’s conduct of the litigation, not the other
jointly represented parties’ conduct of the litigation.” (Charton, supra, 247 Cal.App.4th
at p. 744.) “Whether to award costs that were incurred by both the prevailing party and
26
provide documentation of the costs sought, the trial court explained a proper objection
places the cost items at issue and puts the burden on the party seeking costs to support its
claim. The trial court stated that since the parties must address the Charton issue,
Triangle should use the opportunity to support its claimed costs with complete invoices.
With its supplemental opposition, Triangle provided additional invoices its
attorney was able to locate, along with copies of checks and bank and credit card
statements. In its August 29, 2019 ruling on respondents’ motion to tax costs, the trial
court found Triangle did not adequately allocate the costs between itself and Buehner
and, based on its analysis of the evidence presented in the case, costs would be allocated
50/50 between Triangle and Buehner. With respect to certain cost items, the trial court
found Triangle failed to satisfy its burden of showing its entitlement to certain costs,
specifically the filing fees, costs of service of process, photocopies of exhibits, and the
items claimed under the category of other costs.
The trial court did not err in placing the burden of showing it was entitled to its
claimed costs on Triangle. While respondents only addressed the issue of apportionment
in their motion papers and not in either supporting declaration, respondents’ objection
was a proper one that shifted the burden to Triangle to show its costs were reasonably
necessary to the conduct of its litigation, as opposed to Buehner. Triangle’s
memorandum of costs only listed a cost total for each of these items without providing a
breakdown of the costs or any detail about them. Therefore, respondents did not have
any information about the specific items of Triangle’s costs. Without an itemization of
those items, as opposed to a mere aggregate dollar amount, there was nothing more
nonprevailing party, and were reasonably necessary to the conduct of the litigation for
both the prevailing and nonprevailing party, is left to the trial court’s sound discretion
based on the totality of the circumstances.” (Ibid.) A trial court may not make an across-
the-board reduction based on the number of jointly represented parties, however, because
that fails to consider the necessity or reasonableness of costs as required by section
1033.5, subdivision (c). (Charton, at pp. 744‒745.)
27
respondents could have established by declaration or other evidence to show how
Triangle should have apportioned its costs or whether the costs were proper. (Fennessy v.
Deleuw-Cather Corp., supra, 218 Cal.App.3d at pp. 1195‒1196 [motion to tax
questioning individual defendant’s entitlement to deposition costs incurred by all six
defendants represented by the same counsel was sufficient to place the cost at issue
without additional declarations or affidavits]; Nelson, supra, 72 Cal.App.4th at p. 132
[when it cannot be determined from the face of the cost bill whether the items were
proper, it is the burden of the party seeking the cost of those items to establish their
necessity and reasonableness].)
As such, it was Triangle’s burden to prove it should be apportioned 100 percent of
its costs, most of which were incurred jointly with Buehner, a nonprevailing defendant,
after Buehner was added to the lawsuit. Satisfying this burden necessarily required
Triangle to present the nature of the costs incurred in each category requested, the
associated costs, and explain why they should be apportioned solely to it. The trial court
did not abuse its discretion in finding Triangle bore this burden. To the extent
respondents articulated other challenges to Triangle’s costs, the support for those
objections is considered more specifically below.
B. Deposition Costs
Respondents challenged the $15,951.69 in claimed deposition costs, arguing they
were incurred by other defendants and contained costs solely related to the unsuccessful
cross-complaint. Respondents further argued some of the deposition costs were
needlessly duplicative because Triangle insisted on retaking many depositions after
Buehner was added as a defendant in March 2017. Hager explained in his supporting
declaration that after Buehner was added to the lawsuit, defense counsel discovered a
conflict of interest and appellants obtained new counsel, who rescheduled most of the
prior depositions. Hager claimed the second round of depositions took much longer than
the original ones even though they essentially covered the same material.
28
Triangle asserted in its opposition the first round of depositions was limited in
scope and inadequate to prepare a defense. According to Triangle, the costs associated
with retaking six depositions were reasonable and necessary and would have been
incurred regardless of whether Buehner had been named a defendant.
In reply, respondents argued Triangle’s failure to provide documentation of its
costs was fatal to its request, and the deposition costs must be apportioned among all
three defendants so the most Triangle could recover is one-third of the claimed amount.
Although Triangle responded by arguing the burden never shifted to it to provide
documents to support its cost claims, Triangle provided invoices to support its deposition
costs, along with invoices to support its other claimed costs, but it did not summarize the
invoices or itemize the deposition costs.
In its supplemental opposition, Triangle reiterated only six depositions were
retaken and maintained none of its costs should be apportioned to Buehner. Triangle
asserted invoices for the deposition transcripts were included in Exhibit O and the
amount requested for depositions included $1,180.32 in mileage and toll charges for
travel to Fresno and Merced for depositions.
In their supplemental reply, respondents reasserted retaking depositions after
Triangle’s new counsel was retained was unnecessary and excessive. They argued no
deposition costs should be awarded because Triangle failed to provide supporting
documentation. Finally, they contended any award of costs should be minimal as
Triangle failed to achieve its litigation goals or the costs should be apportioned between
the three defendants who went to trial.
The trial court first noted respondents were not challenging $244.30 of the
deposition costs, which were for transcripts obtained before Buehner was brought into the
action. The trial court found the second set of depositions was reasonably necessary for
the conduct of the case, but it would be unjust to require respondents to pay for two sets
of depositions due to Triangle’s error; therefore, the remaining depositions would be
29
taxed by the amount of the first depositions. The trial court, however, found it difficult to
determine from the invoices Triangle submitted how much was expended on the first
depositions, so it divided the remaining deposition costs of $15,707.39 ($15,951.69
minus $244.30) in half, for a total of $7,853.70. The trial court further found, based on
the amount of testimony at trial concerning Triangle as opposed to Buehner, the
deposition costs should be reduced by 50 percent, for a total of $3,926.85, and awarded a
total of $4,171.15 to Triangle for deposition costs.
On appeal, Triangle argues the order taxing its deposition costs must be reversed
because the trial court arbitrarily divided the costs in half based on its inability to assess
how much was spent on the first round of depositions. Triangle asserts the trial court
should have determined from the invoices it filed how much was expended on the
depositions or ordered Triangle to do it. Triangle also maintains because respondents did
not challenge any of the deposition expenses as “bogus” there was no need to determine
whether invoices supported the claimed amount.
We find no abuse of discretion. It is true that the trial court has a duty to
determine whether a cost is reasonable in need and amount, and “absent an explicit
statement by the trial court to the contrary, it is presumed the court properly exercised its
legal duty.” (Thon v. Thompson (1994) 29 Cal.App.4th 1546, 1548‒1549.) But this does
not require the trial court to sift through invoices that are not summarized or collated to
determine which are offered in support of the claimed costs. Here, the trial court
determined Triangle was not entitled to recover the cost of the first round of depositions
—a ruling Triangle does not contest. The deposition invoices were interspersed among
invoices for other claimed costs, which together totaled approximately 78 pages, and the
deposition costs were not summarized. It was not incumbent on the trial court to
ascertain which, if any, of these invoices supported the costs for depositions that were not
being taxed. Given Triangle’s failure to itemize its deposition costs, the trial court, which
30
presided over the trial, reasonably could conclude Triangle should recover only half the
claimed costs.
Although Triangle asserts it did not have the burden to produce invoices to support
the depositions costs, it was not necessarily the failure to provide invoices that caused the
trial court to cut the deposition costs in half. Rather, Triangle failed to itemize the costs
so the trial court could readily determine which costs were associated with the first round
of depositions. Without such an itemization, it was reasonable for the trial court to
estimate the deposition costs by dividing them in half. There was no abuse of discretion.
C. Service of Process Costs
The trial court granted respondents’ motion to tax costs for service of process in its
entirety because Triangle did not satisfy its burden of showing entitlement to those costs.
Specifically, the trial court found while Triangle submitted invoices in support of the
fees, it did not attempt to summarize or collate them.
Triangle argues it was not its duty to summarize and collate the invoices because
respondents failed to furnish a declaration to challenge this item. Respondents, however,
raised the issue of apportionment of costs between Triangle and the nonprevailing
defendants in their motion to tax costs. As such, as we explained above, it was
incumbent on Triangle to establish why service of process costs should be apportioned
solely to it rather than some portion to Buehner.
Here, the invoices Triangle submitted were not categorized or meaningfully
organized. While invoices were not strictly necessary as there was no objection Triangle
actually incurred these costs, Triangle still had to establish each of these costs was
reasonably necessary to the conduct of its litigation as opposed to Buehner, which
required basic details about the costs that would allow the trial court to meaningfully
evaluate them in light of the parties’ claims and evidence presented at trial.
Without a summarization or collation of the invoices, the trial court was left to sift
through more than 100 pages, locate those that might be relevant or related to service of
31
process costs, and ascertain from those invoices who was served, for what purpose, at
what cost, compare that information with the arguments in Triangle’s brief, and assess it
in light of the claims and evidence presented at trial. Triangle therefore did not satisfy its
burden to show how these costs were reasonably necessary to the conduct of its litigation
and the trial court did not abuse its discretion in taxing all of Triangle’s service of process
costs.
D. Witness Fees
Respondents argued in their motion the $300 in witness fees Triangle sought
needed to be apportioned among Triangle and the other defendants. In their supplemental
reply brief, respondents argued the witness fees should be reduced and apportioned
because their testimony benefitted Buehner as well as Triangle. The trial court taxed the
witness fees down to $35 pursuant to Government Code section 68093, and apportioned
the fee by 50 percent, for a total amount of $17.50.
On appeal, Triangle asserts the trial court overlooked the fact there were three
witnesses and Government Code section 68093 authorizes mileage costs in addition to
the $35 limit per witness. Triangle points to copies of three checks written to three
witnesses—Alvin Smith, Jose Trevino, and David Sweet—which total $300, that was
included among the documents provided with Triangle’s supplemental opposition.
Respondents do not challenge this claim on appeal.
Government Code section 68093 provides that “witness’ fees for each day’s actual
attendance, when legally required to attend a civil action or proceeding in the superior
courts, are thirty-five dollars ($35) a day and mileage actually traveled, both ways,
twenty cent ($0.20) a mile.” As there were multiple witnesses paid who were eligible for
reimbursement for mileage, the trial court’s conclusion that only one $35 fee was
permissible under the statute was incorrect. While respondents argued in their
supplemental reply brief that Triangle failed to show the witness fees were reasonable,
which respondents did not argue in their motion, it was respondents’ burden to provide
32
more than a conclusory allegation. Therefore, Triangle was entitled to $300 in costs for
witness fees. The apportionment, however, was well within the court’s discretion based
on its assessment of the trial testimony, and Triangle does not challenge that aspect of the
trial court’s order. Applying the 50 percent apportionment the trial court adopted,
Triangle is entitled to $150 in witness fees and mileage costs.
IV. Respondents’ Motion for Sanctions
Respondents filed a motion for sanctions against Triangle and Buehner for the
filing of a frivolous appeal. Section 907 provides: “When it appears to the reviewing
court that the appeal was frivolous or taken solely for delay, it may add to the costs on
appeal such damages as may be just.” Likewise, rule 8.276(a) provides that an appellate
court has authority to “impose sanctions … on a party or an attorney for: [¶] Taking a
frivolous appeal or appealing solely to cause delay….”
As explained by our high court, an appeal should be deemed “frivolous only when
it is prosecuted for an improper motive—to harass the respondent or delay the effect of
an adverse judgment—or when it indisputedly has no merit—when any reasonable
attorney would agree that the appeal it totally and completely without merit. [Citation.]
[¶] … [T]he punishment should be used most sparingly to deter only the most egregious
conduct.” (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650‒651.)
The appeal was not frivolous. Although the parties are in vociferous disagreement
on certain issues, we find nothing in the briefs that suggest the appeal was prosecuted for
an improper motive. Respondents’ motion for sanctions is denied.
DISPOSITION
The trial court’s July 31, 2019 order taxing respondents’ costs is modified insofar
as the trial court improperly awarded costs for models, blowups, and photocopies of
exhibits and declined to tax a portion of the deposition costs. The matter is remanded to
the trial court with directions to strike the $7,231.07 awarded for models, blowups, and
33
photocopies of exhibits; tax the deposition costs by $2,659.58; and award total costs to
respondents in the amount of $24,660.59.
The trial court’s August 29, 2019 order taxing Triangle’s costs is modified insofar
as the court improperly taxed witness fees. The matter is remanded to the trial court with
directions to vacate that part of the order taxing witness fees by $282.50 and awarding
$17.50 in witness fees, and instead tax the witness fees by $150 and award $150 for
witness fees; and award total costs to Triangle in the amount of $7,411.33.
In all other respects, the trial court’s July 31, 2019 and August 29, 2019 orders are
affirmed. The parties shall bear their own costs on appeal. (Rule 8.278(a)(3).)
DE SANTOS, J.
I CONCUR:
LEVY, ACTING P. J.
34
MEEHAN, J., Concurring and Dissenting.
I concur and join with the majority’s opinion as to Triangle’s costs in part III. of
the Discussion as well as the majority’s conclusions in part IV. of the Discussion. I
respectfully part company with the majority, however, in its interpretation of California
Rules of Court, rule 3.1700(a)(1) (rule 3.1700(a)(1)). Because the word “verified” is a
term of art that means to be sworn, I am unable to conclude, as the majority does, that
respondents’ cost memorandum1 complied with rule 3.1700(a)(1) as it was neither sworn
nor certified under penalty of perjury. For this reason, I dissent from part II. of the
Discussion of the majority’s decision.
I. Interpretation of Rule 3.1700(a)(1)
A. Standard of Review
My interpretation of rule 3.1700(a)(1) is necessarily grounded in the principles of
statutory construction. The Judicial Council is authorized to adopt rules for court
administration, practice and procedure, and perform other functions prescribed by statute.
(Cal. Const., art. VI, § 6, subd. (d).) The Judicial Council rules are treated with the
dignity as statutes so long as they are not inconsistent with legislative enactments or
constitutional provisions. (In re Richard S. (1991) 54 Cal.3d 857, 863.) If a rule is
inconsistent with a statute, the statute controls. (Hess v. Ford Motor Co. (2002) 27
Cal.4th 516, 532; In re Alonzo J. (2014) 58 Cal.4th 924, 937.) Courts “independently
review interpretations of California Rules of Court, applying the usual rules of statutory
construction.” (In re William M.W. (2019) 43 Cal.App.5th 573, 583; accord, Alan v.
American Honda Motor Co., Inc. (2007) 40 Cal.4th 894, 902 [“The ordinary principles of
statutory construction govern our interpretation of the California Rules of Court.”].)
1 I use the terms “cost memorandum,” “memorandum of costs” and “cost bill”
interchangeably.
The familiar rules of statutory interpretation are well established. “‘“When
construing a statute, a court seeks to determine and give effect to the intent of the
enacting legislative body.” [Citation.] “‘We first examine the words themselves because
the statutory language is generally the most reliable indicator of legislative intent.
[Citation.] The words of the statute should be given their ordinary and usual meaning
and should be construed in their statutory context.’ [Citation.] If the plain,
commonsense meaning of a statute’s words is unambiguous, the plain meaning
controls.”’” (Catlin v. Superior Court (2011) 51 Cal.4th 300, 304.) “[W]hen the
language is susceptible of more than one reasonable interpretation, we look to a variety of
extrinsic aids, including the ostensible objects to be achieved, the evils to be remedied,
the legislative history, public policy, contemporaneous administrative construction, and
the statutory scheme of which the statute is a part.” (Nolan v. City of Anaheim (2004) 33
Cal.4th 335, 340.)
B. Plain Language of Rule 3.1700(a)(1) Unambiguously Requires a Cost
Memorandum To Be Sworn
1. “Verified” is a Term of Art
In construing rule 3.1700(a)(1), I begin with the text of the rule itself.
Rule 3.1700(a)(1) requires that a memorandum of costs “be verified by a statement of the
party, attorney, or agent that to the best of his or her knowledge the items of cost are
correct and were necessarily incurred in the case.” The majority ascribes a general lay
definition to the word verified as meaning to demonstrate or to support. Applying this
meaning, the majority concludes so long as a cost memorandum is supported by the
requisite statement that the items of cost are correct and necessarily incurred, the
memorandum is properly verified. While this reflects a well-established interpretive
principle that words or phrases in a statute should be given their usual and ordinary
dictionary meaning (In re Friend (2021) 11 Cal.5th 720, 730), this canon of construction
yields to a technical-meaning exception when words have acquired a peculiar meaning in
2.
the law (ibid.; accord, Brown v. Superior Court (2016) 63 Cal.4th 335, 351; see Civ.
Code, § 13 [words and phrases are to be construed according to “approved usage,” but
“such others as may have acquired a peculiar and appropriate meaning in law … are to be
construed according to such peculiar and appropriate meaning”]; accord, Code Civ. Proc.,
§ 16).2
“Terms of art ‘are words having specific, precise meaning in a given specialty.’”
(People v. Gonzales (2017) 2 Cal.5th 858, 871, fn. 12.) When a drafting body uses a
term of art, we presume the drafter was aware of the ramifications of its choice of
language. (Creutz v. Superior Court (1996) 49 Cal.App.4th 822, 828–829 [word
“confession” has a distinct meaning in criminal law whose meaning Legislature was
presumed to be aware].) The word “verified” utilized repeatedly in the Code of Civil
Procedure has a specific and long-standing meaning, although it is not defined by statute.
In multiple statutory contexts, including historically for a memorandum of costs, verified
or verification refers to a sworn statement or one that is certified under penalty of perjury.
Originally enacted in 1872 and similar to its current form, section 446 requires that
certain pleadings “shall be verified” and specifies that this verification shall be by
affidavit: “and where a pleading is verified, it shall be by the affidavit of a party” or, in
certain circumstances, verified by the affidavit of an attorney or other person with
knowledge of the facts (id., subd. (a)). Since 1955, the statute permits this verification
requirement to be fulfilled alternatively by asserting the truth of the matters under penalty
of perjury. (Ibid.; see Stats. 1955, ch. 873, § 1, p. 1488.)
Since at least 1873, and up until its repeal in 1986, former section 1033 provided
that a memorandum of costs “must be verified by the oath of the party” or an attorney or
agent stating to the best of that person’s knowledge and belief the items are correct and
2 All further statutory references are to the Code of Civil Procedure, unless
indicated otherwise.
3.
have been necessarily incurred in the action. (Stats. 1872, Code Amendments (1873–
1874), ch. 383, § 139, pp. 343–344, italics added; Stats 1899, ch. 20, § 1, pp. 21–22;
Stats. 1929, ch. 482, § 3, p. 846; Stats. 1931, ch. 860, § 1, p. 1761; Stats. 1933, ch. 744,
§ 192, p. 1902; Stats. 1937, ch. 550, § 1, p. 1579; Stats. 1945, ch. 828, § 5, p. 1527; Stats.
1951, ch. 1737, § 142, pp. 4135–4136; Stats. 1955, ch. 513, § 1, p. 991; Stats. 1967,
ch. 1230, § 2, pp. 2997–2998; Stats. 1970, ch. 602, § 1, p. 1182; Stats. 1982, ch. 812, § 2,
p. 3102.)
Historically, verifying by oath was accomplished by using sworn affidavit
procedures. (See Ray v. Clark (1922) 57 Cal.App. 467, 468 [attorney affidavit attached
to the cost memorandum]; see also Snodgrass v. Snodgrass (1930) 103 Cal.App. 412, 413
[purported affidavit of verification signed by attorney, but jurat was not completed].) For
150 years, California law has defined an affidavit as “a written declaration under oath”
(§ 2003), taken by “any officer authorized to administer oaths” (§ 2012). This statutory
prerequisite of a sworn verification was no doubt a reflection that cost memoranda were
to establish factual matters in legal proceedings, and, although hearsay, the sworn nature
of the document provided it with indicia of reliability and trustworthiness warranting its
consideration as evidence.
Courts employed the term “verified” to reflect the sworn nature of cost
memoranda and built an evidentiary burden-shifting framework predicated on the concept
that a facially proper “verified” cost memorandum has evidentiary value. (See, e.g.,
Miller v. Highland Ditch Co. (1891) 91 Cal. 103, 105–106 [uncontroverted “verified”
cost bill that appears facially proper should control decision of the court; but when
charges are facially improper, burden is on claimant to introduce further evidence to
justify and sustain charges]; Haydel v. Morton (1937) 18 Cal.App.2d 695, 696 [“verified
memorandum” is prima facie evidence that properly appearing charges were sustained; if
evidence is uncontroverted, memorandum is sufficient in form and substance to sustain
award of costs]; Oak Grove School Dist. v. City Title Ins. Co. (1963) 217 Cal.App.2d
4.
678, 698–699 [facially proper “verified” memorandum is prima facie evidence of costs
necessarily incurred by claimant, and burden of showing item not properly chargeable is
on opposing party; if opposing party challenges memorandum by affidavit or other
evidence, then burden is on claimant to show items charged were necessary and material
to the action].)
When the Legislature overhauled the cost award provisions in 1986, it repealed
section 1033 and enacted, among other sections, section 1034, subdivision (a), which
provides that allowable prejudgment costs are to be claimed and contested in accordance
with the rules adopted by the Judicial Council. (Stats. 1986, ch. 377, §§ 10, 15,
pp. 1579–1580.) Consistent with the well-established statutory terminology and
extensive case authority, the Judicial Council promulgated a rule that required cost
memoranda be “verified.” While the repealed section 1033’s use of the phrase “verified
by the oath of the party” was not incorporated into the Judicial Council’s subsequent and
former rule 870 (now rule 3.1700), it nevertheless retained the “must be verified”
requirement, as it does currently.
The promulgation of this rule produced no discernible reaction from courts that a
“verified” cost memorandum as articulated under the new rule meant something different
than it always had under the statute. Courts continued to rely on the case authority
developed under the statute to treat a “verified” cost memorandum as prima facie
evidence of costs incurred, and employed the same burden shifting framework—all of
which was predicated on a sworn cost memorandum. (See, e.g., Ladas v. California State
Auto. Assn. (1993) 19 Cal.App.4th 762, 774.) This reliance was logical because there
was no basis for courts to assume the new rule’s use of the term “verified” had morphed
into something different than the statute had always required.
What is more, the specific legal meaning of “verified” is not unique to the cost
memorandum context. In every statutory context of which I am aware, the word
“verified,” even without an express sworn oath or affidavit requirement, has long been
5.
understood to mean a sworn statement. For example, as originally enacted in 1931,
repealed section 53052 of the Government Code provided that claims for injury or
damaged property as a result of a dangerous or defective condition of a public property
must be presented by “a verified claim for damages.” (Stats. 1931, ch. 1167, § 1,
pp. 2475–2476.) In Hoffman v. City of Palm Springs (1959) 169 Cal.App.2d 645, the
court explained “‘[t]he term “verified,” as applied to claims against municipalities
[pursuant to Government Code, repealed section 53052], has a settled meaning, and
refers to an affidavit attached to the claim, as to the truth of the matters therein set forth.
[Citations.] The chief test of the sufficiency of an affidavit is whether it is so clear and
certain that an indictment for perjury may be sustained on it if false. [Citations.]’” (Id. at
pp. 648–649.) A few years later, this was echoed in Sheeley v. City of Santa Clara
(1963) 215 Cal.App.2d 83, 85 (Sheeley).
Likewise, several statutes pertaining to writ petitions each require a “verified”
petition. (§§ 1069, 1086, 1103, subd. (a).) Much like repealed section 53052 of the
Government Code, these statutes do not specify the nature of the verification. And, just
like repealed section 53052 of the Government Code, case authority has interpreted
“verified” to mean sworn by affidavit. (Star Motor Imports, Inc. v. Superior Court
(1979) 88 Cal.App.3d 201, 203–204 (Star Motor) [verification under § 1086 requires an
affidavit verifying the truth of the matters covered in it and may not be made upon
“‘information and belief’”]; Perlman v. Municipal Court (1979) 99 Cal.App.3d 568, 573
[§ 1103 requires affidavit verifying the truth of the matters covered]; New York
Knickerbockers v. Workers’ Comp. Appeals Bd. (2015) 240 Cal.App.4th 1229, 1236
[§ 1069 petition requires affidavit verifying truth of matters covered by it], citing Star
Motor, supra, at p. 204 & Seckels v. Department of Industrial Relations (1929) 98
Cal.App. 647, 648.)
Examination of this history compels me to the conclusion that “verified” is a term
of art with a well-known and definite legal meaning that long predated any formulation of
6.
rule 3.1700(a)(1). By incorporating the word “verified” into its rule, there is an
interpretive presumption the Judicial Council intended the word to have the same
meaning it had been ascribed by the statute for more than a century and the case authority
developed under the statute. (See Brown v. Superior Court, supra, 63 Cal.4th at p. 351
[“‘“The rule of construction of statutes is plain. Where they make use of words and
phrases of a well-known and definite sense in the law, they are to be received and
expounded in the same sense in the statute.”’”]; see also Air Wisconsin Airlines Corp. v.
Hoeper (2014) 571 U.S 237, 248 [“‘[I]t is a cardinal rule of statutory construction that,
when Congress employs a term of art, it presumably knows and adopts the cluster of
ideas that were attached to each borrowed word in the body of learning from which it is
taken.’”].)
If the Judicial Council had intended to eliminate the traditional sworn statement
requirement for cost memoranda, it could have selected among several other terms in
crafting the rule. For example, the rule could have been written to require that the
memorandum of costs be supported by a statement of the party; or that the memorandum
of costs include a statement of the party; or that the memorandum of costs must be signed
by a statement of the party. Instead, the rule requires that a “memorandum of costs must
be verified by a statement of the party, attorney, or agent that to the best of his or her
knowledge the items of cost are correct and were necessarily incurred in the case.”
(Rule 3.1700(a)(1), italics added.) An interpretation of the rule should give effect to the
term of art the Judicial Council selected. (See City of San Jose v. Superior Court (1993)
5 Cal.4th 47, 55 [courts should ordinarily reject interpretations that render particular
terms of a statute mere surplusage; courts should instead give every word some
significance].)
7.
2. The Operation of Section 2015.5 Does Not Bear On the
Interpretation of Rule 3.1700
In light of the specific and long-settled meaning of “verified” in this and all other
statutory contexts of which I am aware, I cannot agree that a “verified” cost
memorandum under rule 3.1700(a)(1) means anything less than it always has—a sworn
statement attesting the items of cost are correct and necessarily incurred. Buehner argues
the only way to verify a cost memorandum is to sign it under penalty of perjury as
required under section 2015.5, but this confuses a modernized procedure with the historic
and specific meaning of the term verified.
In 1957, the Legislature enacted section 2015.5, which provides a permissive
alternative to sworn statement requirements. Under section 2015.5, when parties are
legally required to provide a sworn statement of some kind—e.g., a verified cost
memorandum—the statute provides for an alternative certification under penalty of
perjury that must be accepted as the legal equivalent to a sworn statement. Thus, since
1957, parties submitting cost memoranda have had a choice: they may provide a verified
memorandum by a sworn oath-and-affidavit procedure or they may submit a
memorandum with an unsworn certification under penalty of perjury, which is treated as
“verified”—i.e., sworn. Parties may not, however, elect to do neither.
The majority rejects Buehner’s argument by noting that section 2015.5 is not
inconsistent with their interpretation of rule 3.1700(a)(1), and they point out
section 2015.5 does not prescribe the sole necessary form of verification. While these are
correct observations and responsive to Buehner’s conflated argument, they do not bear on
the interpretive analysis. The established meaning of “verified” and the specific form it
must take in the prejudgment cost memorandum context flow from the original
prejudgment cost statute, the case authority developed under it, and the many other
consistent statutory uses of the term; it does not derive from section 2015.5. Rather,
section 2015.5 mentions “verification” in providing a nonexhaustive list of actions or
8.
statements that might be required to be sworn under a law, rule, order or regulation of this
state. Indeed, when various provisions of the Code Civil of Procedure—including
repealed section 1033—require something to be “verified,” it must be sworn. This is
when section 2015.5 becomes operative and offers a certification under penalty of perjury
as an alternative.
Section 2015.5 helps explain why the parties frame their arguments around
whether cost memoranda must be certified under penalty of perjury, but it provides no
insight into the substantive interpretation of rule 3.1700(a)(1).
C. The Most Reasonable Interpretation of Rule 3.1700(a)(1) Requires a
Cost Memorandum To Be Sworn
Rule 3.1700(a)(1)’s utilization of the word “verified” plainly requires a cost
memorandum to be sworn—as has been required since at least 1873. But even if I were
inclined to agree that rule 3.1700(a)(1)’s use of the word “verified” is ambiguous and
subject to more than one reasonable interpretation, I would nonetheless conclude the
interpretation that cost memoranda must be sworn is most reasonably consistent with the
purpose of the rule. (Gattuso v. Harte-Hanks Shoppers, Inc. (2007) 42 Cal.4th 554, 567
(Gattuso).) A different interpretation—that a “verified” cost memorandum must be
merely supported by a statement that the costs listed were correct and necessarily
incurred—creates concerning consequences. The initial of these is evidentiary, which I
will address first, but I have related and equal reservations about how such an
interpretation affects our fidelity to a long-standing, developed body of caselaw and how
it implicates fairness to parties opposing cost requests.
Importantly, a memorandum of costs is a hearsay document used to establish
matters in a judicial proceeding; being “verified” by a sworn statement—or, alternatively,
certified under penalty of perjury in conformity with section 2015.5—is a necessary
prerequisite to better ensure its trustworthiness and reliability. “In judicial proceedings,
the trustworthiness of the evidence and the reliability of the factfinding process depend
9.
upon the notion that persons who possess relevant information appear in court and
undergo cross-examination.” (Kulshrestha v. First Union Commercial Corp. (2004)
33 Cal.4th 601, 608 (Kulshrestha).) The conditions for live testimony—such as the
witness’s capacity to understand the duty to tell the truth and the promise under oath or
penalty of perjury to testify truthfully—convey the need for honesty and the sanction for
false testimony. (Ibid.) When statements are not made by a witness testifying in court
before the factfinder, they are hearsay when offered for their truth and are, therefore, less
reliable. (Ibid.) In limited judicial proceedings, however, hearsay evidence—particularly
written statements—may serve as the sole or primary evidence of relevant facts. (Id. at
p. 609.) Oath-taking procedures, such as for affidavits or, alternatively, certifying
statements under penalty of perjury, are essential to help prevent perjury. (Ibid.)
Stemming from these concerns as to hearsay documents, the high court in Kulshrestha
held that a declaration offered to defeat summary judgment that does not materially
conform to section 2015.5’s unsworn declaration requirements is invalid and
inadmissible as evidence. (Kulshrestha, supra, at p. 618.)
Based on similar considerations, the court in Star Motor rejected a writ petition
verified by counsel “‘under penalty of perjury, upon information and belief’” and
dismissed the proceedings. (Star Motor, supra, 88 Cal.App.3d at p. 203.) The court
explained an affidavit based on “‘information and belief’” is hearsay; although
section 446 allows verification on information and belief, that section relates to pleadings
that do not serve as proof of facts. (Star Motor, supra, at p. 204.) The court pointed out
that an affidavit that is to be used as evidence serves a different purpose—a ruling of a
court that is to be based on facts cannot be based upon the belief of the affiant. (Ibid.)
Often, the court explained, the petitioner’s entitlement to relief will depend on the factual
showing based on the verified papers of the applicant. (Id. at p. 205.)
A memorandum of costs serves a similar purpose to the writ petition or a
declaration in a summary judgment proceeding in that it provides evidence for the court
10.
to make a factual determination about a cost award. Interpreting “verified” to mean
anything less than a sworn attestation entirely undermines a cost memorandum’s
evidentiary value. (See e.g., Barnhart v. Kron (1891) 88 Cal. 447, 449–450
[memorandum of costs supported by affidavit of attorney, “unless controverted, should
control the decision of the court”].) If a “verified” cost memorandum does not mean one
that is sworn, as it always has, then the memorandum and all of its contents are merely
hearsay statements without any hallmark of trustworthiness or reliability that a sworn
statement provides. The memorandum becomes nothing more than a note to the court
with no evidentiary force—it simply cannot serve as prima facie evidence sufficient on
its own to support an award of costs just because it appears facially proper and is
unopposed. While the formality of a sworn document may seem like an inconsequential
act, it is an essential prophylactic against perjury and provides a layer of reliability and
trustworthiness to hearsay documents admissible in a legal proceeding and used by the
courts to make factual determinations.
Blended with this, giving evidentiary weight to unsworn cost memoranda
necessarily disturbs a developed body of caselaw around the burden-shifting framework
on which prejudgment cost decisions have long been predicated. Inasmuch as caselaw
has indelibly treated a sworn and facially proper cost memorandum as prima facie
evidence, it has also dictated such a memorandum operates to shift the burden to the
opposing party to prove the costs are not correct, unreasonable or unnecessarily incurred.
(See, e.g., Wilson v. Nichols (1942) 55 Cal.App.2d 678, 682–683.) To shift the burden of
proof to the opposing party based on an unsworn cost memorandum is akin to placing the
burden on the challenger at the outset. Moreover, if the claimant is not required to
provide a sworn statement of costs, there is no legitimate basis to require the challenging
party to produce admissible evidence to properly contradict issues of fact in the cost
memorandum. The burden-shifting framework, the fairness to the challenging party, and
integrity of the court’s decision-making all rest on a verified—i.e., sworn—cost
11.
memorandum. (See Gattuso, supra, 42 Cal.4th at p. 567 [where language is ambiguous,
court should consider consequences of each possible construction and should infer
enacting body intended interpretation producing practical and workable results, not one
producing absurdity or mischief].)
Defining “verified” to mean something less than a sworn statement also creates a
peculiar inconsistency with all the other uses of the word “verified” in the Code of Civil
Procedure I have identified, and it would be an anomaly among cost award procedures
the Legislature has articulated historically and currently. For example, a memorandum
submitted for an award of postjudgment costs related to judgment enforcement must be
“executed under oath.” (§ 685.070, subd. (b).)3
I am similarly unconvinced that the Judicial Council forms highlighted by the
parties offer any conclusive or persuasive insights into the Judicial Council’s intent with
respect to rule 3.1700(a)(1)’s “verified” requirement. Optional form MC-010 for
prejudgment costs and mandatory form APP-013 for appellate costs were both created
pursuant to rule 3.1700(a)(1). (See § 1034, subds. (a)–(b); Cal. Rules of Court,
rule 8.278(c)(1).) Form APP-013 contains a penalty-of-perjury recital while form MC-
010 does not. Even if I could conclude that these forms, standing alone without any
additional information, are a reflection of the Judicial Council’s intent with respect to
rule 3.1700(a)(1) and the word “verified,” they point equally in different directions.
Nor am I persuaded interpreting “verified” to mean a sworn statement will disrupt
the administration of cost awards given the omission of a penalty-of-perjury recital on
form MC-010. Despite its decades-long existence, the use of form MC-010 has remained
optional. This record sheds no light on how the Judicial Council envisioned its use, how
3 Notably, Judicial Council Forms, form MC-012 for postjudgment costs contains a
penalty-of-perjury recital, in keeping with section 685.070, subdivision (b)’s requirement
that such a memorandum be executed under oath.
Further references to forms are to Judicial Council Forms.
12.
extensively the form is actually utilized, or whether most parties or attorneys certify it
under penalty of perjury as appellants did here. Perhaps many parties and their attorneys
elect to submit their own cost memorandum in the prejudgment costs context because,
unlike appellate costs, prejudgment costs can be extensive in variety and number of
items, which possibly cannot be thoroughly reflected on the form.
For example, as the majority astutely points out in its analysis with respect to
Beuhner’s motion to tax, respondents’ memorandum of costs submitted on form MC-010
failed to give any itemization of the amount sought for models, blowups and photocopies
of exhibits rendering the memorandum facially deficient in that regard. Although
respondents did not do so here, where there are large numbers of items of cost within a
category, it may be that parties frequently supplant the form with their own declaration—
for the very reason at issue with respondents’ memorandum here—to provide adequate
details about their costs. In the end, form MC-010’s lack of a penalty-of-perjury recital
may have little practical significance if parties are otherwise certifying it under penalty of
perjury or are electing to submit their own cost memoranda certified under penalty of
perjury.
D. Conclusion
In sum, I find rule 3.1700(a)(1)’s inclusion of the word “verified” plainly requires
cost memoranda be sworn. Even if the term “verified” was ambiguous or created an
ambiguity, the long-standing meaning of the term in this and every other statutory context
establishes the most reasonable and workable interpretation of “verified” is to be sworn.
This not only creates consistency with the extensive caselaw built on the predicate
foundation a “verified” cost memorandum is one that is sworn, but it is also consistent
with other uses of the term in the Code of Civil Procedure and aligns with the
requirements for requesting an award of postjudgment costs. Finally, and importantly, it
maintains the evidentiary value of cost memoranda and reinforces to claimants the
importance of accuracy and truthfulness in making cost requests.
13.
II. Cost Memorandum Was Not Verified in Substantial Compliance With
Rule 3.1700(a)(1)
While the trial court found that respondents’ memorandum of costs substantially
complied with rule 3.1700(a)(1)’s verification requirement, I reach a different conclusion.
In some instances, technical deficiencies with verification requirements may be deemed
substantially compliant. For example, in Sheeley, the claimant verified a claim under
repealed section 53052 of the Government Code by following the affidavit procedures
and swearing upon oath before her attorney (acting as notary) that the claim was true.
(Sheeley, supra, 215 Cal.App.2d at pp. 84–85.) The attorney, however, submitted an
acknowledgment form rather than the verification form. (Id.at p. 85.) The appellate
court concluded this was substantial compliance with the verification requirement
because the oath had actually been taken, and the city had been notified of the fact of
verification. (Id. at p. 86.)
In Pacific Southwest Airlines v. Dowty-Rotol, Ltd. (1983) 144 Cal.App.3d 491(Pacific Southwest), the party seeking prejudgment costs provided a verification stating
only that the information in it was true. (Id. at p. 495.) The court concluded “the
verification substantially met the requirement” under former section 1033 that required
verification “to the best of [the signor’s] knowledge and belief, the items claimed as costs
are correct.” (Pacific Southwest, supra, at p. 495.) There was no indication, however,
the statement was not sworn or certified under penalty of perjury.
In this case, the required statement—attesting the costs were correct and
necessarily incurred—conformed to rule 3.1700(a)(1) generally, but it was not verified—
i.e., not sworn or certified under penalty of perjury. The failure to provide a sworn
statement or, alternatively, one certified under penalty of perjury cannot substantially
comply with a requirement to do so—without it, the memorandum of costs is an
evidentiary nullity. (See Kulshrestha, supra, 33 Cal.4th at p. 618 [declaration invalid and
not admissible as evidence when signed under penalty of perjury in a manner that
14.
materially deviated from § 2015.5’s requirements]; see also Snodgrass v. Snodgrass,
supra, 103 Cal.App. at p. 414 [reversing denial of motion to strike unverified
memorandum of costs because oath jurat was not signed by officer having power to
administer it or anyone else].)
III. Counsel’s Subsequent Declaration Did Not Cure the Verification Defect
The majority concludes that Reich’s declaration offered in response to Buehner’s
motion to tax respondents’ costs was sufficient to cure any verification defect in the
memorandum. While I agree generally that verification defects in the original
memorandum of costs can be cured, I respectfully disagree any such cure was
accomplished here.
Although mandatory, the deadline to file a memorandum of costs is not
jurisdictional, and it can be amended after the deadline has expired. (Hydratec, Inc. v.
Sun Valley 260 Orchard & Vineyard Co. (1990) 223 Cal.App.3d 924, 929 [deadline for
filing cost memorandum not jurisdictional]; Pacific Southwest, supra, 144 Cal.App.3d at
p. 495 [trial court did not abuse discretion in accepting an amended verification of a
memorandum of costs]; see generally Ambriz v. Kelegian (2007) 146 Cal.App.4th 1519,
1527–1528 [holding trial court should have permitted party to cure any perceived defect
in attorney’s declaration when attorney offered to do so at oral argument on dispositive
motion].)
Reich offered a declaration in opposition to Buehner’s motion to tax, but that
declaration did not attest to the correctness and the necessary incurrence of the costs
listed in the cost memorandum, it attested that all of the bills listed in the statement
attached to the declaration were necessary and proper expenses. As it turns out, those are
not one in the same thing. In reviewing Buehner’s motion to tax, the majority points out
the documentation attached to Reich’s declaration does not align with the totals claimed
in the cost memorandum in significant respects.
15.
Moreover, as the majority notes, Reich’s declaration was deficient because it was
not properly sworn under penalty of perjury in the manner required under section 2015.5.
While I agree Buehner’s lack of objection to the defect in Reich’s declaration forfeited
any claim the trial court erred in relying on the declaration to assess costs, the declaration
was nonetheless legally deficient. The defective declaration cannot, as a matter of law,
cure the nearly identical defect in the cost memorandum. And, in any event, Reich’s
declaration was never offered for the purpose of curing the unverified cost memorandum,
and, therefore, Buehner did not have an appropriate opportunity to object to its use on
that basis.
IV. Prejudicial Error
To prevail on appeal, an appellant must establish both error and prejudice from
that error. (Champir, LLC v. Fairbanks Ranch Assn. (2021) 66 Cal.App.5th 583, 597.)
The existence of additional documentation offered to support respondents’ cost
memorandum in this case leads to a question of whether the verification defect may be
deemed harmless. (Cal. Const., art. VI, § 13 [no judgment shall be set aside unless the
error has resulted in a miscarriage of justice]; Evid. Code, § 353 [no verdict, finding,
judgment or decision shall be reversed unless admitted evidence should have been
excluded and resulted in a miscarriage of justice]; O’Hearn v. Hillcrest Gym & Fitness
Center, Inc. (2004) 115 Cal.App.4th 491, 500 (O’Hearn) [miscarriage of justice should
only be declared when, after examining the entire cause, including the evidence, it is
reasonably probable a result more favorable to appealing party would have been reached
in absence of the error].)
On one hand, had the trial court stricken the cost memorandum as unverified, it
would have had no occasion to reach the supporting documentation and ultimately award
costs. In that sense, any award of costs to respondents is prejudicial to Buehner. On the
other hand, all costs were put at issue by Buehner and the respondents provided evidence
16.
to support the totals sought in the memorandum. To the extent cost items were proven by
further evidence, the error is likely subject to a harmless error analysis.
Nonetheless, no matter how I examine the effect of the error, I arrive at the
conclusion the failure to strike the memorandum of costs was harmful to Buehner
because respondents were permitted to recover costs sought in the memorandum that
were never properly verified or proven. All categories of respondents’ costs were
challenged by Buehner in his alternative motion to tax the memorandum of costs, and
respondents provided two declarations with attached documentation in response. As the
majority articulates well, not all the costs sought for deposition and for models,
enlargements and photocopies of exhibits were fully substantiated with additional
documentation, yet the trial court awarded the total requested for these cost items exactly
as it appeared in the cost memorandum. Further, although not an issue on appeal with
respect to Buehner’s motion to tax, my examination of the supporting documentation
substantiates only about half of the $2,499.80 in filing and motion costs sought in the cost
memorandum and awarded.4 Since the additional documentation did not substantiate
these costs, the trial court necessarily relied exclusively on the unverified cost
memorandum to award them. That resulted in harm to Buehner.
4 In concluding respondents’ cost memorandum was unverified and, thus, the
motion to strike should have been granted, I do not reach the trial court’s ruling on
Buehner’s alternative motion to tax. I refer above to the majority’s analysis with respect
to Buehner’s alternative motion to tax because it is relevant to my assessment of
prejudicial error. (O’Hearn, supra, 115 Cal.App.4th at p. 500 [state law error assessed by
examining the entire record to determine whether it is reasonably probable that a result
more favorable to the appealing party would have been reached absent the error].) In
reviewing the entire record, the award of deposition costs, the costs awarded for models,
blowups and photocopies of exhibits, and the costs associated with motion and filing fees
are not fully and properly substantiated by the supporting documentation. To the extent
unsubstantiated properly by supporting evidence, such costs were necessarily awarded
solely based on the unverified cost memorandum, which resulted in harm to Buehner.
17.
Notably, this issue circles back to my evidentiary concerns about unverified cost
memoranda. Despite the shortcomings in the additional evidence, the trial court
nonetheless awarded the exact total sought in the cost memorandum in making its award
of filing and motion costs, deposition costs, and the costs of models, enlargement and
photocopies of exhibits. This highlights the risk of unverified cost memoranda—they can
be ascribed evidentiary weight and can sometimes drive an award of costs even when
those costs are neither verified nor adequately proven with additional evidence. I hasten
to note nothing in the record indicates the unsubstantiated costs here were anything but
good faith mistakes. Yet, this is exactly why the sworn nature of the cost memorandum
is important—it reminds all claimants and their attorneys of the need for accuracy and the
grave responsibility they have with respect to the truth and correctness of the costs being
sought. (See Kulshrestha, supra, 33 Cal.4th at p. 609 [declarations under penalty of
perjury ensure witness understands grave responsibility assumed with respect to the
truth].)
Based on the foregoing, I respectfully dissent from the majority’s conclusions in
part II. of the Discussion, but concur with the majority’s conclusions in parts III. and IV.
of the Discussion.
MEEHAN, J.
18.