Opinion
B307419
02-10-2022
HIRAM ASH, Plaintiff and Appellant, v. HAROLD PICK, Defendant and Respondent.
Hiram Ash, in pro. per., for Plaintiff and Appellant. Mark R. Weiner & Associates and Kathryn Albarian for Defendant and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. BC499614 Jon R. Takasugi, Judge.
Hiram Ash, in pro. per., for Plaintiff and Appellant.
Mark R. Weiner & Associates and Kathryn Albarian for Defendant and Respondent.
EGERTON, J.
Plaintiff Hiram Ash appeals an order awarding defendant Harold Pick his appellate costs as directed in our opinion affirming the underlying judgment. Plaintiff contends defendant's memorandum of costs was void because defendant filed it before serving plaintiff with the document. He also maintains the trial court erred by declining to strike certain disputed cost items. And plaintiff argues the underlying judgment and our opinion in his earlier appeal are void and subject to collateral attack in this appeal. We affirm.
With respect to timeliness, the record shows neither the superior court clerk nor defendant served plaintiff with a document entitled "Notice of Entry" or a filed-endorsed copy of the order. (See Cal. Rules of Court, rule 8.104(a)(1)(A) & (a)(1)(B).) Thus, plaintiff's appeal, filed (at the latest) 63 days after the court entered its appellate costs order, is timely. (Id., rule 8.104(a)(1)(C).) As for mootness, defendant's counsel declares her client waived the award of appellate costs, thus rendering plaintiff's appeal from the cost award moot. Her declaration authenticates a document, filed with the superior court on September 4, 2020, notifying the trial court of defendant's decision to withdraw his memorandum of costs and to waive the appellate costs award. However, plaintiff perfected his appeal from the order awarding costs (at the latest) on September 1, 2020, at which time the trial court was divested of jurisdiction to vacate or modify the order. (Code Civ. Proc., § 916, subd. (a); Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 198 ["The purpose of the automatic stay under section 916 is to preserve 'the status quo until the appeal is decided,' . . . [o]therwise, the trial court could render the 'appeal futile by altering the appealed judgment or order by conducting other proceedings that may affect it.' "].) Neither defendant nor the trial court could render plaintiff's appeal moot by attempting to vacate the order after plaintiff perfected his appeal. (See Sacks v. Superior Court (1948) 31 Cal.2d 537, 541 ["[A]fter the appeal was perfected, the lower court lost jurisdiction of the cause and could take no step to defeat appellants of the right to prosecute their appeal with effect."].) Before plaintiff filed his opening brief, defendant filed a motion to dismiss the appeal as untimely and moot. We initially deferred ruling on the motion and now deny it.
FACTS AND PROCEDURAL HISTORY
Plaintiff sued defendant in January 2013, asserting three causes of action for motor vehicle negligence, intentional tort, and general negligence, all based on the allegation that defendant's dog lunged out of the passenger window of a van and bit plaintiff on the cheek.
In August 2016, the court held a one-day jury trial on plaintiff's claims. Plaintiff was the only witness to testify. The jury returned a special verdict, finding it was not defendant's dog that bit plaintiff.
Plaintiff appealed the judgment entered on the jury's verdict, asserting an assortment of pre-trial and trial errors.
On September 25, 2019, we filed our opinion affirming the judgment without modification. Among other things, we concluded the case was properly transferred to an independent calendar court and the evidence supported defense counsel's argument to the jury that plaintiff failed to prove the dog that bit him belonged to defendant. Consistent with the mandate set forth in California Rules of Court, rule 8.278, we held defendant was entitled to his costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1) & (a)(2).)
Subsequent rule references are to the California Rules of Court.
On October 10, 2019, plaintiff filed a petition for rehearing. On October 23, 2019, we denied the petition.
On November 4, 2019, plaintiff filed a petition for review in the California Supreme Court through his attorney, Robert Guevara. On January 2, 2020, the Supreme Court denied the petition.
On January 6, 2020, we issued a remittitur, remitting jurisdiction back to the superior court and specifying defendant was entitled to his costs on appeal.
On January 8, 2020, defendant filed his memorandum of costs with a proof of service on Mr. Guevara.
On January 27, 2020, plaintiff served defendant with a motion to strike and/or tax costs. Plaintiff argued the memorandum of costs was void because defendant improperly served it on Mr. Guevara, who did not represent plaintiff in the pending trial court proceedings. Plaintiff also challenged defendant's requests for the costs of filing fees and preparation of the clerk's transcript on the ground that "the clerk's record on appeal was available to defense counsel from plaintiff."
On January 28, 2020, defendant served plaintiff with the memorandum of costs and filed a second proof of service with the trial court. In a declaration offered in support of defendant's opposition to the motion to tax costs, defendant's attorney authenticated a notice Mr. Guevara had filed declaring he represented plaintiff in the Supreme Court proceedings. Defendant's counsel declared she "did not receive any notice . . . that Mr. Guevara no longer represented [plaintiff]," until she received plaintiff's motion. Nevertheless, in response to plaintiff's motion, she had plaintiff served with the memorandum of costs as well.
On June 24, 2020, plaintiff filed "Supplemental papers" in support of his motion to strike and/or tax costs. Invoking what he called a "sea change . . . starting to sweep this country in the justice area," roused by the government's response to the pandemic and "video of the George Floyd murder by police," plaintiff argued the trial court should declare our judgment in his earlier appeal "void," as it was "based not merely on misinterpretation of the law, but a statement of facts that is 180 degrees opposite to what is in the record." Additionally, plaintiff asked the trial court to vacate the "entire judgment . . . as void," notwithstanding our affirmance, asserting the trial court had both "the ability and duty to vacate void orders, since they are never final."
The trial court denied plaintiff's motion. Observing that, under rule 8.278, defendant had 40 days after the remittitur was issued to file and serve his memorandum of costs, and that defendant properly served plaintiff with the memorandum within the 40-day period, the court reasoned defendant did not waive costs by declining to refile the memorandum.
Plaintiff filed a timely notice of appeal from the order. (See fn. 1, ante.)
DISCUSSION
Rule 8.278 governs the right to recover costs on appeal. (Musaelian v. Adams (2011) 197 Cal.App.4th 1251, 1259; Lavine v. Jessup (1959) 175 Cal.App.2d 136, 138; and see Code Civ. Proc., § 1034 [costs on appeal must be claimed and contested under Judicial Council rules].) As a general rule, the "party prevailing" in an appeal is entitled to recover costs on appeal. (Rule 8.278(a)(1); see also rule 8.278(a)(5) ["In the interests of justice, the Court of Appeal may also award or deny costs as it deems proper."].) As applicable to plaintiff's earlier appeal in this case, if the Court of Appeal affirms the judgment without modification, the prevailing party is the respondent. (Rule 8.278(a)(2).) "The clerk/executive officer of the Court of Appeal must enter on the record, and insert in the remittitur, a judgment awarding costs to the prevailing party." (Rule 8.278(b)(1).)
"Within 40 days after issuance of the remittitur, a party claiming costs awarded by a reviewing court must serve and file in the superior court a verified memorandum of costs under rule 3.1700." (Rule 8.278(c)(1).) Rule 3.1700 specifies that "[t]he 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).) A verified costs memorandum establishes a prima facie case for recovery of the costs sought. (Bach v. County of Butte (1989) 215 Cal.App.3d 294, 308.) Thus, the party seeking costs need not provide supporting documentation (e.g., copies of bills, invoices, or statements) unless the party liable for costs makes a proper objection in a timely motion to strike or tax costs. (Ibid.)
A party liable for costs can challenge the costs memorandum by filing a motion to strike or tax costs "in the manner required by rule 3.1700." (Rule 8.278(c)(2).) Unless the party objects to the entire cost memorandum, "the motion to strike or tax costs must refer to each item objected to by the same number and appear in the same order as the corresponding cost item claimed on the memorandum of costs and must state why the item is objectionable." (Rule 3.1700(b)(2).) Because a verified costs memorandum establishes a prima facie case for recovery, the burden is on the party moving to strike or tax costs to establish that each disputed item is not recoverable. (Pratt v. Robert S. Odell & Co. (1944) 63 Cal.App.2d 78, 82 (Pratt).)
Plaintiff acknowledges defendant filed the memorandum of costs and later served him with the memorandum within the 40-day period prescribed under rule 8.278(c)(1). However, he contends rule 1.21(b) required not only that defendant serve him with the memorandum as a" 'self-represented party, '" but also that "a proof-of-service of that document must be filed with the document."
There is no such requirement in rule 1.21(b). On the contrary, the rule simply states that the "requirement to 'serve and file' a document means that a copy of the document must be served on the attorney for each party separately represented, on each self-represented party, and on any other person or entity when required by statute, rule, or court order, and that the document and a proof of service of the document must be filed with the court." (Rule 1.21(b), italics added.) The rule does not require the document and proofs of service to be filed together as plaintiff contends. Indeed, for motions generally, rule 3.1300 recognizes a proof of service may be filed separately from a party's moving papers, as long as "[p]roof of service of the moving paper [is] . . . filed no later than five court days before the time appointed for the hearing." (Rule 3.1300(c).)
Plaintiff acknowledges "proofs of service can be filed after [the] filing [of a] motion," but he contends "[m]otions are handled differently" from a memorandum of costs. In support of the contention, he cites rule 3.510(a), which requires, in a "coordination proceeding," that "all papers filed or submitted must be accompanied by proof of prior service on all other parties." (Rule 3.510(a), italics added.) The rule is inapposite.
This case is not a coordination proceeding. More to the point, unlike rule 3.510(a), but like the rule for motions generally, rule 8.278(c)(1) requires only that the party claiming costs "serve and file" a verified memorandum of costs within 40 days after issuance of the remittitur. (Cf. rule 3.1300(a) ["all moving and supporting papers must be served and filed"].) By its terms, rule 8.278 does not require prior service of the memorandum of costs before filing the document. The trial court correctly concluded defendant satisfied the requirements for claiming appellate costs under rule 8.278.
Alternatively, plaintiff contends defendant was required to" 'justify'" his claimed costs after plaintiff objected by filing his motion. As discussed, a verified costs memorandum establishes a prima facie case for recovery of claimed costs, and the burden rests on the party moving to strike or tax costs to establish that each disputed item is not recoverable. (Pratt, supra, 63 Cal.App.2d at p. 82; rules 8.278(c)(2) & 3.1700(b)(2).) In his motion, plaintiff argued defendant's requests for the costs of filing fees and preparation of the clerk's transcript should be stricken on the ground that "the clerk's record on appeal was available to defense counsel from plaintiff, as the Rules of Court provide, for economy purposes."
Plaintiff did not identify the rule in his motion (nor does he identify it in his appellate briefs); however, we think he may have intended to refer to rule 8.130(b)(3)(C). That rule allows a designating party to avoid depositing the cost of the record with the superior court clerk by substituting a "certified transcript of all of the proceedings designated by the party, " as long as the transcript complies with the format requirements of rule 8.144. (Rule 8.130(b)(3)(C).) The rule does not require the respondent to obtain a copy of the record from the appellant, as plaintiff seems to imply, nor does it displace rule 8.278(d)(1)(B), which authorizes a party to recover the "amount the party paid for any portion of the record, whether an original or a copy or both." (See Alan S. v. Superior Court (2009) 172 Cal.App.4th 238, 261 [rule 8.278(d)(1)(B) "makes no reference to necessity as a fact in what part of the appellate record is recoverable as a cost"].) Plaintiff did not dispute that defendant actually paid the amount listed in his memorandum of costs for preparation of the clerk's transcript, nor did he dispute that defendant paid the filing fee he was authorized to recover under rule 8.278(d)(1)(A). The trial court properly rejected plaintiff's challenge to these cost items. (See Pratt, supra, 63 Cal.App.2d at p. 82.)
Finally, plaintiff's attempt to use this appeal to make a "collateral attack" on the underlying judgment and our opinion affirming it is a nonstarter. His arguments largely reiterate arguments plaintiff made in his earlier appeal and in his petition for rehearing. We denied his rehearing petition and, 30 days after our opinion was filed, our decision became final as to this court. (Rule 8.264(b)(1).) At that point, our jurisdiction to reconsider plaintiff's arguments or modify our opinion ended.(See rules 8.264(c)(1) & 8.268(a)(2); Woodridge Escondido Property Owners Assn. v. Nielsen (2005) 130 Cal.App.4th 559, 577.) Thereafter, the Supreme Court denied plaintiff's petition for review and "the judgment of the trial court [was then] final for all purposes." (North Beverly Park Homeowners Assn. v. Bisno (2007) 147 Cal.App.4th 762, 769.)
Although he declares the underlying judgment and our opinion affirming it "void," plaintiff does not appear to claim the trial court erred by following our order awarding defendant his costs on appeal. Nor could he. If the appellate court's opinion specifies a costs award, it is settled law that the trial court may not deviate from the award. (Harbour Landing-Dolfann, Ltd. v. Anderson (1996) 48 Cal.App.4th 260, 265 [trial court erred by denying prevailing appellant costs explicitly ordered in remittitur]; see also Cuccia v. Superior Court (2007) 153 Cal.App.4th 347, 353-354 [regardless of whether the superior court thinks an appeal was "wrongly decided," it "is simply not appropriate for the trial court to state its disagreement and rule contrary to the appellate opinion"].) The trial court did not err by following our cost award, as specified in the remittitur.
This includes plaintiff's renewed contentions that he was deprived of due process with respect to his discovery motions and requested trial continuance; that his case was improperly transferred to the individual calendar court that presided over his discovery motions and trial; that our opinion violated Government Code section 68081; that our opinion misstated the facts in the record; that plaintiff was deprived of due process when defense counsel rested without examining defendant at the underlying trial; that defense counsel engaged in misconduct in his closing argument; and that the trial court improperly struck his request for punitive damages.
To the extent plaintiff contends the judgment remains subject to attack because the trial court lacked jurisdiction to enter it, the case he principally relies upon exposes his misunderstanding of the applicable law. In 311 South Spring Street Co. v. Department of General Services (2009) 178 Cal.App.4th 1009 (Spring Street), our colleagues in Division One recognized that" '[c]ollateral attack is proper to contest lack of personal or subject matter jurisdiction or the granting of relief which the court has no power to grant, '" and "the affirmance of a judgment on appeal does not insulate it from a subsequent collateral attack on the ground that it is void." (Id. at pp. 1015- 1016.) As the court explained, the "key question" is" 'whether the error, appearing on the face of the judgment, renders the judgment void, in whole or in part, as being beyond the jurisdiction of the court, and subject to collateral attack, or simply renders the judgment erroneous-not void-but within the jurisdiction of the court, and free from collateral attack.'" (Id. at p. 1017.)
The Spring Street court did not find the trial court lacked personal or subject matter jurisdiction to enter a judgment awarding the plaintiff postjudgment interest in his suit against the State of California for breach of a lease. As the court explained, that sort of" '[l]ack of jurisdiction in its most fundamental or strict sense means an entire absence of power to hear or determine the case, an absence of authority over the subject matter or the parties.'" (Spring Street, supra, 178 Cal.App.4th at pp. 1015, 1017-1018.) But the reviewing court held the portion of the judgment awarding postjudgment interest at the rate of 10 percent was nevertheless void and subject to collateral attack because the trial court had exceeded its jurisdiction under article XV, section 1 of the California Constitution, which declares a party is entitled to postjudgment interest at a rate of only 7 percent. (Spring Street, at p. 1018.)
Plaintiff maintains the trial court lacked "subject-matter jurisdiction" because, he contends, his case was transferred to the wrong department of the superior court under a Los Angeles Superior Court (LASC) General Order establishing three Personal Injury Courts to adjudicate "pretrial matters" in "general jurisdiction personal injury cases in the Stanley Mosk Courthouse." (Super. Ct. L.A. County, Amended General Order re Personal Injury Court Procedures (Sept. 18, 2015) p. 2.) Department assignments under a local general order are irrelevant to the question of whether the superior court has personal or subject matter jurisdiction in the "fundamental" sense of having the "power to hear or determine the case." (Spring Street, supra, 178 Cal.App.4th at p. 1015.) Because plaintiff filed his action in the LASC, thus submitting his person and the controversy to judicial jurisdiction in that court, the superior court plainly had jurisdiction in the fundamental sense, regardless of any subsequent department assignment. (See Code Civ. Proc., §§ 410.10, 410.50.)
As for jurisdiction to grant a certain form of relief as was at issue in Spring Street, plaintiff does not (nor could he credibly) claim the trial court lacked authority to enter a judgment on a jury verdict finding in favor of defendant. (See Code Civ. Proc., § 578 ["Judgment may be given for or against one or more of several plaintiffs."].) In any event, as explained in our earlier opinion, we disagree with plaintiff's contention that his case was improperly transferred to the individual calendar department that tried his case and entered judgment against him. But even if we agreed with his contention, that would only render" 'the judgment erroneous-not void-but within the jurisdiction of the court, and free from collateral attack.'" (Spring Street, supra, 178 Cal.App.4th at p. 1017.)
DISPOSITION
The order is affirmed. Defendant Harold Pick is entitled to his costs.
We concur: LAVIN, Acting P. J. KNILL, J. [*]
[*]Judge of the Orange County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.