Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 05AS01501
ROBIE , J.
Plaintiff Julieanne Shull sued defendants County of Sacramento (the county) and Sacramento County Sheriff Deputies Jennifer Page and Rebecca Purdy, among others, for injures Shull suffered while detained at the Sacramento County Jail. At trial, she prevailed only on her causes of action alleging battery and negligence against Purdy. She now brings this judgment roll appeal challenging a jury instruction, the attorney fee award, and the costs award. Rejecting Shull’s contentions, mostly on the grounds the record is insufficient to prove prejudicial error or abuse of discretion, we affirm the judgment.
A judgment roll appeal is one based only on the clerk’s transcript. (Krueger v. Bank of America (1983) 145 Cal.App.3d 204, 207.)
FACTUAL AND PROCEDURAL BACKGROUND
According to Shull’s second amended complaint, on the morning of February 5, 2004, Shull and her companion Wessel Lewis went to the state capitol to lobby lawmakers for support of legislation preserving old growth forests. After they had finished lobbying, Lewis climbed into the branches of a China fir tree on the capitol grounds to generate public support for the legislation. Shull videotaped the scene, talked to members of the media, and helped hoist Lewis’s bag to him while he was in the tree. Shull was arrested for conspiracy to protest in Capitol Park without a permit and was transported to the Sacramento County Jail. “During her dress-in at the jail,” Deputies Page and Purdy “wantonly assaulted Ms. Shull, causing permanent injury to her left shoulder.”
As is relevant here, Shull sued the county, Page, and Purdy for battery and negligence, the county for false arrest and imprisonment, and Page and Purdy for intentional infliction of emotional distress and violation of Shull’s civil rights under the Bane Act.
“Civil Code section 52.1, commonly known as the Bane Act . . . establishes a private right of action for damages and other relief against a person who ‘interferes by threats, intimidation, or coercion,’ or attempts to so interfere, with the exercise or enjoyment of an individual’s constitutional or other legal right.” (Gillan v. City of San Marino (2007) 147 Cal.App.4th 1033, 1044.)
According to the “judgment on special verdicts,” the jury found Purdy liable for battery by a peace officer and negligent touching and fixed the total damages at $21,060.
The court denied Shull’s motion for attorney fees, awarded Shull $4,017.13 in costs, and awarded the county and Page $1,667.35 in costs.
On appeal, Shull challenges the jury instruction given on the Bane Act, the court’s denial of her attorney fees, and the court’s ruling on costs. Finding no error, we affirm the judgment.
DISCUSSION
I
Shull Has Not Carried Her Burden To Prove Prejudicial Instructional Error
Shull contends the court prejudicially erred in its instruction on the Bane Act. According to Shull, the given instruction added a specific intent element found nowhere in the Bane Act. As we will explain, Shull has not carried her burden to prove prejudicial error because she has provided us with an inadequate record to assess her contention.
As is relevant here, the record contains only the second amended complaint alleging the Bane Act cause of action, the “given” jury instructions in the clerk’s transcript that includes an instruction on the Bane Act, and a statement in the court’s ruling on a motion for judgment notwithstanding the verdict mentioning that Shull “did plead a state claim for violation of her civil rights under the Bane Act and was not successful.” The record does not contain a reporter’s transcript of the evidence at trial, a reporter’s transcript of the instructions given by the court, a reporter’s transcript of the verdicts rendered by the jury, or any written verdict or judgment relating to the Bane Act cause of action.
On this record, we cannot say whether Shull provided any evidence to the jury supporting the Bane Act cause of action, whether the court instructed on the Bane Act cause of action in the manner Shull claims it did, whether the jury rendered a verdict against Shull on the Bane Act cause of action, and if it did, whether a different result was probable had the Bane Act instruction not contained the alleged specific intent element. On this record, Shull has failed to carry her burden of proving prejudicial error. (People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573 [the judgment challenged on appeal is presumed correct, and it is the appellant’s burden to affirmatively demonstrate error].)
II
The Trial Court Did Not Abuse Its Discretion In Denying Shull Attorney Fees
Shull contends the court abused its discretion in denying her request for attorney fees both pursuant to title 42 United States Code section 1988 and Code of Civil Procedure section 1021.5. We disagree that the court’s ruling under either statute was an abuse of discretion.
A
Denial of Attorney Fees Pursuant To Title 42 United States Code Section 1988
A trial court may, in its discretion, award attorney fees to the prevailing party in an action under title 42 United States Code section 1983. (42 U.S.C. § 1988(b); Jones & Matson v. Hall (2007) 155 Cal.App.4th 1596, 1610.) While Shull concedes she did not plead a claim under title 42 United States Code section 1983, she contends the court abused its discretion in not awarding her attorney fees because she “plainly argued and established that she pleaded and proved a battery claim against an officer which was the equivalent of a . . . 1983 [claim],” and the court made “manifestly erroneous factual findings which are unsupported by substantial evidence, and applied the wrong standards.”
As is relevant here, title 42 United States Code section 1983 states in part: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.”
In a written “final ruling on motion for . . . attorney fees,” the court stated in part: “A state claim for battery against a peace officer is not necessarily the same as a federal claim for excessive force. . . . It does not arise out of the same nucleus of facts. The claims have different antecedents. . . . [M]any cases have concluded that every battery under state law does not necessarily result in a constitutional violation.” The court concluded, “[u]nder the facts of this case and the nature of the pleadings and the jury’s verdict, [Shull] is not entitled to attorney fees pursuant to 42 USC section 1988.”
Shull’s contention fails for a similar reason her first contention failed. Shull has failed to provide us with the reporter’s transcript of the trial, so we do not know the evidence presented to support her battery cause of action and cannot assess whether that evidence and any other evidence the parties presented at trial would have been sufficient to support a cause of action under title 42 United States Code section 1983. Without the evidence presented at trial, we are unable to say whether the court abused its discretion in denying an award of attorney fees where part of that decision was made on the facts of the case.
B
Denial Of Attorney Fees Pursuant To Code Of Civil Procedure Section 1021.5
Code of Civil Procedure section 1021.5 provides that “[u]pon motion, a court may award attorneys’ fees to a successful party against one or more opposing parties in any action which has resulted in the enforcement of an important right affecting the public interest if: (a) a significant benefit, whether pecuniary or nonpecuniary, has been conferred on the general public or a large class of persons, (b) the necessity and financial burden of private enforcement, or of enforcement by one public entity against another public entity, are such as to make the award appropriate, and (c) such fees should not in the interest of justice be paid out of the recovery, if any.”
“On review, ‘[a]n appellate court may reverse a trial court decision denying attorney fees under section 1021.5 for a prejudicial abuse of discretion.’” (State Water Resources Control Bd. Cases (2008) 161 Cal.App.4th 304, 312.)
Here, the trial court ruled as follows: Shull “succeeded in a personal injury action which was entirely to her own benefit. The action has not resulted in the enforcement of an important public right. The record also fails to support a conclusion that the necessity and litigation burden was out of proportion to her individual stake in the matter. [Shull] therefore is not entitled to attorney fees under Code of Civil Procedure section 1021.5.”
Shull contends “the court’s conclusory findings are not supported by substantial evidence, so the court’s decision to deny fees constitute[s] an abuse of discretion.”
Shull has not carried her burden to show an abuse of discretion. “In a judgment roll appeal based on a clerk’s transcript, every presumption is in favor of the validity of the judgment and all facts consistent with its validity will be presumed to have existed. The sufficiency of the evidence is not open to review.” (Bond v. Pulsar Video Productions (1996) 50 Cal.App.4th 918, 924.) Accordingly, her contention fails.
III
The Trial Court Did Not Abuse Its Discretion In Awarding Costs
Shull contends the court erred in: (1) awarding the county and Page $1,232.85 in costs, which represented two-thirds of the total costs incurred by all defendants; (2) requiring Shull to pay filing fees the county had been exempt from paying; and (3) taxing her attorney’s travel costs for mileage, tolls, and parking. Defendants preliminarily contend the issue regarding costs is not properly before us. We address defendants’ contention first and then Shull’s three substantive contentions.
A
The Notice Of Appeal Properly Covers The Issue Of Costs
Defendants contend we “lack[] jurisdiction” to review the issue of costs because the notice of appeal was filed before the amount of costs was decided.
The “judgment on special verdicts” provided the county and Page “are entitled to an award of costs in their favor, if any, amounting to the sum of $ ___________.” The notice of appeal specified Shull was appealing from, among other things, “the judgment on special verdicts” and the court’s “adjudication of the parties’ memoranda of costs -- to the extent the Court grants defendants’ Motion to Tax plaintiff’s costs and/or denies plaintiff’s Motion to Tax defendant’s costs, or otherwise imposes any costs on plaintiff.” At the time Shull filed the notice of appeal, the court had issued only a tentative ruling on this issue. After Shull filed the notice of appeal, the court affixed a specific dollar amount award for the costs. As the case we discuss below demonstrates, the notice of appeal here was sufficient to encompass the issue of costs.
In Grant v. List & Lathrop (1992) 2 Cal.App.4th 993, the judgment reflected that the court awarded fees to certain parties, but left the amount blank. (Id. at p. 996.) The court held that entitlement to fees and costs was therefore part of the judgment, and the postjudgment order determining the amount of fees and costs was subsumed by the notice of appeal from the judgment. (Id. at pp. 997-998.) The situation is the same here, and we therefore address Shull’s contentions on the merits.
B
The Court Did Not Abuse Its Discretion In Awarding The County And Page $1,232.85 In Costs
Shull contends the court abused its discretion in awarding the county and Page $1,232.85 in costs, which represented two-thirds of the total costs incurred cumulatively by the county, Page, and Purdy. In making this contention, Shull argues as follows: the court did not “properly consider” her argument that Page and Purdy shared a unity of interest; even if the court properly considered the argument and found no unity of interest, the county and Page were not entitled to costs because they did not incur any separate costs apart from those incurred by Purdy who lost; and even if the county and Page were entitled to a portion of their costs, the court abused its discretion in awarding a two-thirds apportionment because the law “requires a much smaller amount.” Shull is wrong on all counts.
“‘One defendant who prevails may recover costs even though the plaintiff recovers against another defendant.’” (Wakefield v. Bohlin (2006) 145 Cal.App.4th 963, 984, citing Code Civ. Proc., § 1032, subd. (a)(4).) There is an exception where several defendants are united in interest or join in making the same defenses in the same answer. (Wakefield,at p. 984.) In such a case, “‘the allowance or disallowance of costs to the prevailing defendant lies within the sound discretion of the court, as does the apportionment of those costs, if allowed.’” (Ibid.)
Here, the court found “[t]here was no unity of interest” because “[e]ven though the three defendants filed a joint answer and were represented by the same attorney the factual allegations against each defendant were different and the defenses to the allegations were legally and factually different.” Because Shull has failed to provide a reporter’s transcript of the trial, we presume the trial court’s factual findings regarding the issue of unity of interest were supported by substantial evidence. (Bond v. Pulsar Video Productions, supra, 50 Cal.App.4th at p. 924.)
Shull’s assertion that Page and Purdy “mounted exactly the same defense at trial” is based on her citation to one of her motions. A motion is not evidence of what transpired at trial.
Nevertheless, Shull contends the fact Page and Purdy “answered jointly, in a unitary answer” was sufficient to find a unity of interest, citing Smith v. Circle P Ranch Co. (1978) 87 Cal.App.3d 267. In that case, the court stated, “[i]n those instances in which several defendants are united in interest and/or join in making the same defenses in the same answer, the allowance or disallowance of an award to prevailing defendants lies within the sound discretion of the trial court.” (Id. at p. 272.) While a trial court might deem the filing of a joint answer with the same defense sufficient to show unity of interest, it does not follow that the trial court here abused its discretion for not so finding. Accordingly, Shull has failed to carry her burden to demonstrate abuse of discretion on the unity of interest issue.
Shull next argues that even if the court properly considered the unity of interest issue, “controlling authority” “precludes” a recovery of costs by the county and Page because they did not incur any separate costs apart from those incurred by Purdy who lost. The cases Shull contends are “controlling” do not support her contention. (See, e.g., Wakefield v. Bohlin, supra, 145 Cal.App.4th at p. 986 [“‘When a prevailing party has incurred costs jointly with one or more other parties who are not prevailing parties for purposes of an award of costs, the judge must apportion the costs between the parties’”]; Slavin v. Fink (1994) 25 Cal.App.4th 722, 724-727 [upholding an allocation of costs in consolidated cases between two parties where they were “united in interest and shared the same counsel”].) Because Shull has failed to support her argument with “controlling” authority, her argument fails.
Finally, Shull contends that even if the county and Page are entitled to a portion of their costs, the court abused its discretion in the two-thirds apportionment when the law “requires a much smaller amount,” which she believes is 5 percent. Shull bases this figure on the trial court’s award in Slavin v. Fink, supra, 25 Cal.App.4th at page 725. That award was based on the fact that defendant Fink “‘became entitled to a judgment in his favor by the mere failure of [plaintiff] Slavin to present any evidence in support of a judgment against him personally.’” (Id. at pp. 724–725.) The trial court reasoned that “‘an allocation must be made between the costs Borinstein [who was the main defendant] would have been entitled to had she prevailed, and those necessarily incurred by Fink.’” (Id. at pp. 724, 725.) The trial court made a discretionary allocation, awarding Fink the cost of his appearance fee, plus 5 percent of the remaining costs claimed by him. (Id. at p. 725.) That award was affirmed on appeal: “Under the circumstances, it would have been unjust to allow appellant to impose upon respondent all costs incurred which benefitted both appellant and Borinstein.” (Id. at p. 726.) The holding in that case in no way limits an apportionment of fees here to 5 percent or suggests that the court’s award here was an abuse of discretion. Accordingly, this contention fails as well.
C
The Court Did Not Err In Requiring Shull To Pay Filing Fees The County Was Exempt From Paying
Shull contends the court erred in ordering her to pay the filing fees the county was exempt from paying. She first claims the statute authorizing the payment does not support the award here. (Gov. Code, § 6103.5, subd. (a).) Second, she claims that even if the award was proper, the amount must be apportioned.
Government Code section 6103.5, subdivision (a) reads as follows: “Whenever a judgment is recovered by a public agency named in Section 6103, either as plaintiff or petitioner or as defendant or respondent, in any action or proceeding to begin, or to defend, which under the provisions of Section 6103 no fee for any official service rendered by the clerk of the court, . . . the clerk entering the judgment shall include as a part of the judgment the amount of the filing fee, and the amount of the fee for the service of process or notices which would have been paid but for Section 6103, designating it as such. The clerk entering the judgment shall include as part of the judgment the amount of the fees for certifying and preparing transcripts if the court has, in its discretion, ordered those fees to be paid.”
As to her first claim, Shull argues that Government Code section 6103.5, subdivision (a) is “inapplicable to these circumstances” because the “natural meaning” of judgment “involves some type of affirmative recovery on the merits of a claim.” Shull makes this assertion without any authority to support her claim about the meaning of “judgment.” Since she has provided no reasoned argument or citation to authority to support this argument, we need not discuss it further. (R. P. Richards, Inc. v. Chartered Construction Corp. (2000) 83 Cal.App.4th 146, 153, fn. 4.)
As to Shull’s second claim on the necessity of fee apportionment, she cites Slavin v. Fink, supra, 25 Cal.App.4th at pages 724-725. We have already described the issues in that case, and they did not involve apportionment of the filing fee entered as part of the judgment under Government Code section 6103.5. Absent any authority the court’s failure to apportion the filing fee was an abuse of discretion, Shull’s contention fails.
D
The Trial Court Did Not Abuse Its Discretion In Taxing Shull’s Attorney’s Travel Costs
Shull contends the court erred in taxing her attorney’s travel costs for mileage, tolls, and parking. The court noted these costs were “neither specifically allowed nor disallowed by [Code of Civil Procedure section 1033.5, subdivision (c)(2)].” It then “decline[d] to exercise its discretion to award these costs. They were incurred because [Shull] retained counsel in a distant location. They do not qualify as reasonably necessary expenses that should be awarded against defendant.”
Shull contends the court’s ruling was an abuse of discretion because it was made “in derogation of [her] right to counsel of her choosing.” We find no abuse of discretion.
The main case that Shull cites for her right to counsel of choice argument, Roa v. Lodi Medical Group, Inc. (1985) 37 Cal.3d 920, undercuts her argument. Roa stressed while there is a right to be represented by retained counsel in civil actions, the statute at issue in Roa “simply limits the compensation that an attorney may obtain when he represents an injured party” and did not abrogate that right. (Roa, at p. 926.) Moreover, allowable costs must be reasonably necessary to the conduct of the litigation, rather than merely convenient or beneficial to its preparation. (Code Civ. Proc., § 1033.5, subd. (c)(2).) For this reason, at least one case has held that parking fees, cab fares and the like should not have been allowed under the statute. (Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 775-776.) While Ladas involved the denial of these expenditures for local attorneys and Shull cites to case law stating that out-of-town attorneys may recover travel-related expenses (Thon v. Thompson (1994) 29 Cal.App.4th 1546, 1548) it does not follow that their denial constitutes an abuse of discretion. In the absence of a record showing an abuse of discretion for disallowing these expenses, Shull’s argument fails.
DISPOSITION
The judgment is affirmed. Defendants shall recover their costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1).)
We concur: BLEASE , Acting P. J. CANTIL-SAKAUYE , J.
Shull did file a belated motion to augment the record to include certain missing portions of the record. We denied the belated motion.