Opinion
G037708
7-18-2007
CHARLES KINNEY, Cross-complainant and Appellant, v. SHERRIE OVERTON, Cross-defendant and Respondent.
Charles G. Kinney, in pro. per., for Cross-complainant and Appellant. Marcus, Watanabe, Snyder & Dave, Patricia M. Snyder and Daniel J. Enowitz for Cross-defendant and Respondent.
NOT TO BE PUBLISHED
Cross-complainant Charles Kinney, an attorney appearing in propria persona, comes before us for the third time in relation to certain real property litigation involving cross-defendant Sherrie Overton and others. A judgment having been entered in favor of Overton on quiet title and other causes of action, Kinney now appeals from an order denying his motion to tax costs. We hold that the trial court did not err in denying his motion. The benefits of Code of Civil Procedure section 998 were available to Overton even though her offer to compromise and her expert witness designation were each made before Kinney filed his fifth amended cross-complaint. We affirm the order.
In the text of his opening brief, Kinney requests that this court take judicial notice of the record in the related appeal Kinney v. Overton (G037146, app. pending). This request does not comply with the requirements of California Rules of Court, rule 8.252. However, judicial notice of the record in the related appeal is unnecessary, inasmuch as Kinney designated the record in that appeal as the record in the appeal before us, pursuant to former rule 10, as in effect at the time he filed his notice of designation of record. (See now rule 8.147.) The improperly presented request for judicial notice is therefore moot.
Kinney also argues against the imposition of sanctions for the filing of a frivolous appeal from an order granting Overtons motion to expunge his two posttrial notices of lis pendens. We grant Overtons request for attorney fees as sanctions, inasmuch as Kinney attempted to appeal from a clearly nonappealable order.
I
FACTS
Following an order from the bench granting Overtons Code of Civil Procedure section 631.8 motion for judgment, Kinney recorded two notices of lis pendens against Overtons property. After judgment was entered in favor of Overton and she filed her memorandum of costs, Kinney filed a motion to tax costs. Overton filed a Code of Civil Procedure section 405.30 motion to expunge the two notices of lis pendens, in which she also requested that the court award her attorney fees pursuant to Code of Civil Procedure section 405.38. The court denied Kinneys motion to tax costs, granted Overtons motion to expunge, and awarded her $3,140 in attorney fees in connection with her motion. Kinney filed a notice of appeal from the orders.
Code of Civil Procedure section 405.30 states in pertinent part: "At any time after notice of pendency of action has been recorded, any party . . . may apply to the court in which the action is pending to expunge the notice. . . ." Code of Civil Procedure section 405.38 provides: "The court shall direct that the party prevailing on any motion under this chapter be awarded the reasonable attorneys fees and costs of making or opposing the motion unless the court finds that the other party acted with substantial justification or that other circumstances make the imposition of attorneys fees and costs unjust."
II
DISCUSSION
A. Appeal from Order Granting Motion to Expunge; Request for Sanctions:
Overton filed a motion to dismiss the portion of the appeal from the order granting her motion to expunge the notices of lis pendens and award attorney fees, on the ground that the order was not an appealable order. (Code Civ. Proc., § 405.39.) In her motion to dismiss, Overton requested that this court award sanctions against Kinney for filing a frivolous appeal from that order. This court granted the motion to dismiss the portion of the appeal from the order granting the motion to expunge, leaving in tact the appeal from the order denying the motion to tax costs. In our order, we deferred ruling on Overtons request for sanctions, which we consider now.
Code of Civil Procedure section 405.39 provides in pertinent part: "No order . . . under this chapter [Code Civ. Proc., § 405.30 et seq.] shall be appealable. Any party aggrieved by an order made on a motion under this chapter may petition the proper reviewing court to review the order by writ of mandate. The petition for writ of mandate shall be filed and served within 20 days of service of written notice of the order by the court or any party. The court which issued the order may, within the initial 20-day period, extend the initial 20-day period for one additional period not to exceed 10 days. . . ."
As Overton points out, Kinneys remedy to challenge the order granting the motion to expunge was to file a petition for a writ of mandate within 20 days of service of written notice of the order. Overton served the notice of ruling on Kinney by mail on August 22, 2006. Kinney filed his notice of appeal on October 10, 2006, well after the time period for challenging the order had expired.
Kinney argues that the trial court did not have jurisdiction to hear the motion to expunge, since an appeal with respect to the underlying property issues was pending when the matter was heard. He also argues that the appeal from the order granting the motion to expunge was properly taken because one can challenge jurisdiction at any time. Kinney contends that adherence to the writ procedure of Code of Civil Procedure section 405.39 makes no sense, from the perspective of judicial economy, when an appeal from the underlying matter has been filed.
We disagree. A trial court has jurisdiction to hear a motion to expunge a notice of lis pendens, even when an appeal is pending. (United Professional Planning, Inc. v. Superior Court (1970) 9 Cal.App.3d 377, 383-386.) Given this clear case law, Kinney has no viable basis for asserting that the trial court had no jurisdiction to hear the motion. Plainly, Code of Civil Procedure section 405.39 governs the manner in which review of the order granting the motion to expunge may be obtained. Kinney did not comply with the provisions of the statute.
In an effort to avoid suffering the consequences of this fatal error, Kinney requests that this court either modify or "void" Code of Civil Procedure sections 405.38 and 405.39. This we cannot do. It is not the province of this court to modify statutes. (See Greyhound Lines, Inc. v. County of Santa Clara (1986) 187 Cal.App.3d 480, 487 [role of court is to interpret, not rewrite statutes].) That is the province of the Legislature. Kinney should know better.
Code of Civil Procedure section 405.39 clearly bars an appeal from the order granting the motion to expunge, including the attorney fees award contained therein. "`[A]n appeal taken despite the fact that no reasonable attorney could have thought it meritorious ties up judicial resources and diverts attention from the already burdensome volume of work at the appellate courts. Thus, an appeal should be held to be frivolous . . . where it indisputably has no merit — when any reasonable attorney would agree that the appeal is totally and completely without merit. [Citation.] [Citation.]" (Bank of California v. Varakin (1990) 216 Cal.App.3d 1630, 1637-1638.) Kinneys attempted appeal from the nonappealable order is frivolous and justifies the imposition of sanctions. (Papadakis v. Zelis (1992) 8 Cal.App.4th 1146, 1149 [appeal from nonappealable order is frivolous, justifying sanctions].) Overton requests that, at a minimum, she should be awarded sanctions in the amount of $1,085, for attorney fees incurred in bringing the motion to dismiss. We agree. Overton is awarded $1,085 in attorney fees as sanctions.
B. Appeal from Order Denying Motion to Tax Costs:
(1) Introduction
Overton, as the prevailing party under Code of Civil Procedure section 1032, filed a memorandum of costs in which she claimed $ 8,075.38 in total costs. That total included $5,298.50 in witness fees and $463.91 in costs for models, blowups, and photocopies of exhibits. Overton described the witness fees as expert fees per Code of Civil Procedure section 998, paid to The Boss Law Firm. She had engaged David G. Boss, a lawyer with expertise in real property and chains of title, to testify as to both the status of her title and the viability of Kinneys claims. Kinney filed a motion to tax costs, in which he requested the court to strike from Overtons memorandum of costs the amounts for witness fees and the costs for models, blowups, and photocopies of exhibits. The court denied Kinneys motion.
(2) Expert witness fees
Kinney cites Code of Civil Procedure section 1033.5, subdivision (a)(8), which provides that allowable costs include "[f]ees of expert witnesses ordered by the court." He also cites section 1033.5, subdivision (b)(1), which disallows "[f]ees of experts not ordered by the court," except when otherwise expressly permitted by law. Kinney says that, inasmuch as Overton never called any expert witness at trial, no expert was ever ordered by the court and no fees are recoverable under section 1033.5, subdivision (a)(8).
Overton, however, makes her claim for expert witness fees as costs under Code of Civil Procedure section 998. Section 998 provides in pertinent part: "(a) The costs allowed under Sections 1031 and 1032 shall be withheld or augmented as provided in this section. [¶] (b) Not less than 10 days prior to commencement of trial . . . , any party may serve an offer in writing upon any other party to the action to allow judgment to be taken or an award to be entered in accordance with the terms and conditions stated at that time. . . . [¶] (c)(1) If an offer made by a defendant is not accepted and the plaintiff fails to obtain a more favorable judgment or award, the plaintiff . . . shall pay the defendants costs from the time of the offer. In addition, . . . the court . . . , in its discretion, may require the plaintiff to pay a reasonable sum to cover costs of the services of expert witnesses . . . actually incurred and reasonably necessary in either, or both, preparation for trial . . . , or during trial . . . , of the case by the defendant. . . ."
Overton points out that in January 2004, she made a Code of Civil Procedure section 998 offer to compromise. She offered to pay Kinney $10,000 in exchange for a dismissal, with prejudice, of his fourth amended cross-complaint. Kinney did not accept her offer, with the result that the matter proceeded to trial in April 2006. Because Overton was the prevailing party at trial, she urges that she is entitled to expert witness fees as costs under section 998. (Regency Outdoor Advertising, Inc. v. City of Los Angeles (2006) 39 Cal.4th 507, 531-533.)
Kinney disputes this analysis, for two reasons. First, he says that Overtons offer to compromise was directed to his fourth amended cross-complaint, which was later replaced by his fifth amended cross-complaint. He says this means that her offer was ineffective as against his fifth amended cross-complaint. However, Kinney has cited no authority for the proposition that the benefits of Code of Civil Procedure section 998 evaporate if the plaintiff files an amended pleading after the defendant has made an offer to compromise. It is his burden, as appellant, to show reversible error. (Del Real v. City of Riverside (2002) 95 Cal.App.4th 761, 766.)
Second, Kinney says that Overtons expert witness was designated when his fourth amended cross-complaint was the operative pleading. He argues that she should not be entitled to recover fees based on an expert witness designation that was not directed to his fifth amended cross-complaint. Again, Kinney cites no authority for the proposition that expert witnesses must be redesignated every time the opposing party files an amended pleading and that the failure to redesignate makes Code of Civil Procedure section 998 inapplicable. He has not met his burden to demonstrate error. (Del Real v. City of Riverside, supra, 95 Cal.App.4th at p. 766.)
Furthermore, Overton draws our attention to the fact that the fourth amended cross-complaint and the fifth amended cross-complaint, each of which named numerous cross-defendants, were nearly identical with respect to the causes of action against her. Kinney has made no argument to persuade us that either Code of Civil Procedure section 998 becomes inapplicable, or a requirement to redesignate expert witnesses emerges, every time a plaintiff files an amended pleading that contains no substantive changes with respect to the causes of action against the defendant in question.
(3) Exhibit costs
Next, Kinney maintains that Code of Civil Procedure section 1033.5 does not permit Overton to recover her costs for models, blowups, and photocopies of exhibits. Section 1033.5, subdivision (a)(12) provides that "[m]odels and blowups of exhibits and photocopies of exhibits may be allowed if they were reasonably helpful to aid the trier of fact." Section 1033.5, subdivision (b), however, provides in pertinent part: "The following items are not allowable as costs, except when expressly authorized by law:
[¶] . . . [¶] (2) Investigation expenses in preparing the case for trial. [¶] (3) Postage, telephone, and photocopying charges, except for exhibits." Kinney asserts that Overtons costs were part of the investigation process preparatory to trial, so they are disallowed.
Overton, on the other hand, correctly points out that Code of Civil Procedure section 1033.5, subdivision (b)(3) does not disallow photocopy charges incurred with respect to exhibits. She also emphasizes that her costs would clearly have been allowable under section 1033.5, subdivision (a)(12) had she completed trial instead of bringing a successful motion for judgment. As Overton persuasively argues, she should not be denied the costs simply because she prevailed on a motion for judgment.
Code of Civil Procedure section 1033.5, subdivision (c)(4) provides: "Items not mentioned in this section and items assessed upon application may be allowed or denied in the courts discretion." This provision has been interpreted to permit the recovery of the type of costs in question in instances in which the matter has not proceeded to the conclusion of trial. In Applegate v. St. Francis Lutheran Church (1994) 23 Cal.App.4th 361, for example, the plaintiff dismissed the action on the date set for trial. (Id. at p. 363.) He then filed a motion to tax costs with respect to the defendants unused trial exhibits. (Ibid.) The trial court denied the motion and the appellate court affirmed. (Id. at pp. 362-363.)
The appellate court in Applegate v. St. Francis Lutheran Church, supra, 23 Cal.App.4th 361, stated: "It was within the trial courts discretion to allow the costs for [exhibits] pursuant to [Code of Civil Procedure] section 1033.5, subdivision (c)(2) if they were reasonably necessary to the conduct of the litigation. Here defendants had exhibits made for a trial which was never held because plaintiff dismissed the action on the day of trial. . . . Until a dismissal was filed, defendants were forced to continue preparing for trial in the matter. The exhibits prepared were `reasonably necessary to the conduct of the litigation. An experienced trial judge recognized that it would be inequitable to deny as allowable costs exhibits which a prudent attorney would prepare in advance of trial, and which were not used only because the action was dismissed by the opposing party on the day of trial. Under these circumstances, the trial court did not abuse its discretion in allowing these items as costs under subdivision (c)(4)." (Id. at p. 364, fns. omitted.)
In the case before us, the exhibits were unused only because Overton, as the defendant, prevailed on a motion for judgment at the close of Kinneys case in chief. Because Kinney pressed his case to trial, Overton was required to prepare for trial, and to prepare her exhibits for trial, no less than the defendants in Applegate v. St. Francis Lutheran Church, supra, 23 Cal.App.4th 361. Moreover, to deny her recovery of her exhibit costs in this context would be to penalize a successful litigant for utilizing a statutory procedure designed to streamline judicial proceedings. (Code Civ. Proc., § 631.8; Pettus v. Cole (1996) 49 Cal.App.4th 402, 424 [purpose of statute].)
III
DISPOSITION
The order denying the motion to tax costs is affirmed. Kinney shall pay $1,085 to Overton as sanctions with respect to the frivolous appeal from the order granting her motion to expunge the notices of lis pendens. Overton shall recover her costs on appeal.
A copy of this opinion shall be forwarded to the State Bar, in compliance with the provisions of Business and Professions Code section 6086.7, subdivision (a).
We concur:
SILLS, P. J.
FYBEL, J.