Hogan v. DeAngelis Construction CA1/2

Filed 2/17/22 Hogan v. DeAngelis Construction CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or
ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
RONALD HOGAN, et al.,
Plaintiffs and Appellants,
A157615
v.
DEANGELIS CONSTRUCTION, (Sonoma County
INC., et al., Super. Ct. No. SCV230846)
ORDER MODIFYING OPINION
Defendants and Respondents.
AND DENYING REHEARING
BY THE COURT:
It is ordered that the opinion filed herein on January 28, 2022, be
modified as follows:
In the second line on page 5, the following should be added after the
sentence ending with “bond costs were improper in this case”: “The Hogans
note that, when the developers accepted rescission of the contract to purchase
the Gardenview property, the developers agreed to pay ‘all costs and fees
incurred as a result of the purchase.’ The Hogan emphasize the word ‘all,’
apparently arguing that ‘all costs and fees incurred as a result of the
purchase’ should include the costs on appeal awarded to the developers in
Hogan V. But the award of costs on appeal in this case was not incurred ‘as a
result of’ the Hogans’ purchase of the Gardenview property in 2000. Rather,
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the developers are entitled to their costs on appeal because their appeal was
successful.”
The petition for rehearing is denied. This modification does not change
the judgment.
Dated: ____________________ ____________________________
Stewart, Acting P.J.
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Filed 1/28/22 Hogan v. DeAngelis Construction CA1/2 (unmodified opinion)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or
ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
RONALD HOGAN, et al.,
Plaintiffs and Appellants,
A157615
v.
DEANGELIS CONSTRUCTION, (Sonoma County
INC., et al., Super. Ct. No. SCV230846)
Defendants and Respondents.
Plaintiffs Ronald and Victoria Hogan (the Hogans) appeal from an
order denying their motion to tax costs on appeal claimed by defendants
DeAngelis Construction, Inc., Marvin DeAngelis, Gary Pope, and DeAngelis-
Pope Homes (the developers or developer defendants). The Hogans challenge
the award of costs for appeal bond premiums the developers paid in
connection with pursuing their successful appeals. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
We do not repeat the history of this case, which the parties are familiar
with and which is set out in our prior decisions.1 In brief, the parties’
litigation over the rescission of a contract to purchase a home (the
See, e.g., Hogan, et al. v. DeAngelis Construction, Inc., et al. (A138118,
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Jan. 13, 2016) [nonpub. opn.]; Hogan, et al. v. DeAngelis Construction, Inc., et
al. (A146057, A146582, A147273, May 17, 2018) [nonpub. opn.] (Hogan V).
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Gardenview property) resulted in a modified amended judgment filed by the
trial court in April 2010, and conflict over executing this judgment has led to
years of litigation. (See Hogan V, supra.)
As relevant to this appeal, the developers appealed from three trial
court orders issued in 2015: (1) a June 23 order denying its motion for full
satisfaction of judgment and release of bond, (2) an August 25 order stating,
among other things, the developers had the “obligation to pay the mortgage”
on the Gardenview property since May 2004, and (3) a November 16 order
affirming the trial court’s view that the developers were obligated to pay the
mortgage. (Hogan V, supra.)
The developers’ consolidated appeals were successful. In Hogan V,
supra, we vacated the three orders and directed the trial court to “enter a
new order deeming the judgment fully satisfied as to the developers and
releasing the developer defendants’ appellate bond.” (Ibid.) The opinion
concluded, “The developer defendants shall recover their costs on appeal.
(Cal. Rules of Court, rule 8.278(a)(1).)” (Ibid.)
In accordance with Hogan V (decided in May 2018), the developers filed
a memorandum of costs on appeal with the trial court for $34,719.51. It
included $16,394.50 for “[p]remium[s] on any surety bond on appeal” and
$12,426.50 for “[o]ther expenses reasonably necessary to secure surety bond.”
On their costs worksheet, the developers listed costs associated with the bond
incurred from August 24, 2015 to August 24, 2018.
The Hogans filed a motion to strike and/or tax and offset the
developers’ costs, challenging almost all the costs claimed. They argued the
bond premium costs were unnecessary and unreasonable. The developers
opposed, arguing the bond expenses were necessary “given the Hogans[’]
attempts to collect against the bond and refusal to release the bond which
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was one of the orders before the Court of Appeal” [in Hogan V].2 However,
the developers conceded that their request should be reduced by $2,793, an
amount that had been rebated to them after the bond was released.
The trial court issued a tentative ruling ordering the Hogans to pay the
developer defendants $31,926.51 after granting the motion to tax costs as to
the $2,793 in premium costs refunded to the developers and denying the
Hogans’ motion as to all other costs. The tentative ruling stated the verified
memorandum of costs was prima facie evidence of the propriety of the costs,
and the Hogans “failed to submit sufficient facts to demonstrate the costs
were not reasonable or necessary.” No party contested the tentative ruling,
and the court adopted its tentative ruling in an order filed April 9, 2019.
DISCUSSION
Under California Rules of Court, rule 8.278(d)(1)(F), a prevailing party
in a civil appeal may recover, if reasonable, “[t]he cost to procure a surety
bond, including the premium, the cost to obtain a letter of credit as collateral,
and the fees and net interest expenses incurred to borrow funds to provide
security for the bond or to obtain a letter of credit, unless the trial court
determines the bond was unnecessary.”3
2We note that, sometime between August and November 2015, the
Hogans filed a motion to enforce liability on the developers’ existing appeal
bond, and in the trial court’s November 16 order, the court declined to rule on
the motion. (Hogan V, supra.)
3 Under Code of Civil Procedure section 917.1, an “undertaking” (or
surety bond) is required to stay enforcement of any trial court “judgment or
order” for “[m]oney or the payment of money” pending appeal. (Code Civ.
Proc., § 917.1, subd. (a)(1).) “The purpose of the undertaking requirement is
‘to protect the judgment won in the trial court from becoming uncollectible
while the judgment is subjected to appellate review.’ ” (Leung v. Verdugo
Hills Hospital (2008) 168 Cal.App.4th 205, 211–212.)
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Where “ ‘the items appear to be proper charges, the verified
memorandum [of costs] is prima facie evidence that the costs, expenses and
services therein listed were necessarily incurred by the defendant [citations],
and the burden of showing that an item is not properly chargeable or is
unreasonable is upon the [objecting party].’ ” (Nelson v. Anderson (1999) 72
Cal.App.4th 111, 131.) Generally, we review a trial court’s award of costs for
abuse of discretion. (Goodman v. Lozano (2010) 47 Cal.4th 1327, 1332.)
On appeal, the Hogans state the issue presented is “Are the costs of a
bond recoverable by defendants when their appeal is denied and the
judgment is affirmed?” As we have described, however, the developers’
appeals decided by Hogan V were successful, and the orders they appealed
were vacated, not affirmed. To the extent the Hogans claim the developers
were not the prevailing party in Hogan V, they are mistaken.
Although the Hogans acknowledge that “[b]ond costs are recoverable
when a judgment is overturned,” they argue that did not happen in this case
as “[t]he original 2007 judgment was not overturned.” Their focus on the
judgment is misplaced. An appeal bond is required to stay enforcement of
any “judgment or order” for the payment of money. (Code Civ. Proc., § 917.1,
subd. (a)(1).) The appeal bond requirement is not limited to final
“judgments.” Here, the developers appealed from orders that denied their
request for satisfaction of judgment and effectively ordered them to pay the
mortgage. Thus, an appeal bond was necessary if the developers wanted to
stay enforcement of the orders making them liable for the mortgage.
The Hogans also seem to suggest the developers are improperly seeking
costs for an appellate bond they initially undertook in 2007. The developers,
however, only sought costs associated with maintaining the appellate bond
from August 2015 to release of the bond in 2018. The Hogans’ remaining
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arguments are difficult to understand and do not convince us the bond costs
were improper in this case.
In sum, bond costs are recoverable costs (Cal. Rules of Court, rule
8.278(d)(1)(F)), and the trial court found the Hogans failed to meet their
burden of showing the bond costs claimed by the developer defendants were
unreasonable or unnecessary. We cannot say this finding was an abuse of
discretion. Accordingly, the April 9, 2019, order denying in part the Hogan’s
motion to tax costs is affirmed.
Finally, the Hogans filed a request for judicial notice asking this court
to take notice of two federal code sections, 42 United States Code section 407
and 29 United States Code section 1056. They do not explain how these
statutes may be relevant to the appeal and they do not cite these statutes in
their opening brief. We deny the request because the statutes are not
relevant to determination of the issues on appeal. (See State Compensation
Insurance Fund v. ReadyLink Healthcare, Inc. (2020) 50 Cal.App.5th 422, 442
[denying unopposed request for judicial notice “on the ground that the
materials are not relevant to our determination of issues on appeal”].)
DISPOSITION
The trial court’s order of April 9, 2019, granting in part and denying
the Hogans’ motion to strike and/or tax and offset costs is affirmed. The
Hogans’ request for judicial notice is denied.
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_________________________
Miller, J.
WE CONCUR:
_________________________
Stewart, Acting P.J.
_________________________
Kline, J.*
A157615, Hogan v. DeAngelis Construction, Inc., et al.
*Assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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