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Becker v. Kajikuri

California Court of Appeals, Sixth District
Mar 18, 2008
No. H031531 (Cal. Ct. App. Mar. 18, 2008)

Opinion


DONALD BECKER, Plaintiff and Appellant, v. HISASHI KAJIKURI, Defendant and Respondent. H031531 California Court of Appeal, Sixth District March 18, 2008

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

Monterey County Super. Ct. No. M53675

McAdams, J.

This is appellant Donald Becker’s third appeal of an award of costs in this case . Becker’s common law wife Jeed Skelton (Skelton) sued respondent Hisashi Kajikuri, M.D. (Kajikuri) and others for medical malpractice. Becker also sued, claiming loss of consortium. At the beginning of trial, Becker voluntarily dismissed his claim. Kajikuri sought prejudgment costs from Becker, who had not obtained a waiver of costs.

We take judicial notice of the opinions filed in the previous appeals (H026130 and H029022).

In the first appeal (No. H026130), we affirmed an order awarding Kajikuri $7,001.06 in prejudgment costs and awarded Kajikuri his costs on appeal. In the second appeal (No. H029022), we affirmed the trial court’s order awarding Kajikuri $296 in appellate costs and $945 in sanctions for bringing a frivolous motion to tax. Once again, we awarded Kajikuri his costs on appeal.

In this third appeal, Becker challenges the court’s order awarding Kajikuri $144.05 in appellate costs and $1,000 in sanctions for bringing another frivolous motion to tax. As we did in the last two appeals, we conclude the trial court did not err when it refused to provide an advisory opinion regarding the effect of the settlement agreement between Skelton and Kajikuri on Kajikuri’s cost claim. We reject Becker’s contention that Kajikuri is not entitled $1,000 in sanctions because his attorneys agreed to waive fees associated with the post-trial motions. We reject Becker’s arguments that the sanctions order must be reversed because the court failed to render a statement of decision on the motion for sanctions, failed to make findings supporting the sanctions award, and failed to rule on his request for judicial notice. We conclude the court did not err when it denied Becker’s request for $50,000 in sanctions and failed to describe its reasons for denying the sanctions in its order.

Procedural History

After we affirmed the order awarding appellate costs and sanctions to Kajikuri in the second appeal, Kajikuri filed a memorandum of costs on appeal, claiming $144.05, which included the cost of (1) preparing the clerk’s transcript and (2) copying the respondent’s brief and a request for judicial notice.

Becker moved to tax the appellate costs, arguing that Kajikuri had not provided documentation supporting the amount claimed to procure the clerk’s transcript ($71.25.) He also requested an advisory opinion on the validity of his marriage to Skelton and used the motion to tax as a vehicle to supply the court with evidence that had been lacking in his previous attempts to obtain an advisory opinion on this issue. He asked the court to judicially notice certain materials and he submitted further evidence in support of his request for an advisory ruling.

Kajikuri opposed the motion to tax, arguing that Becker was using the motion to “to seek impermissible, advisory relief with respect to an issue of collection.” Kajikuri argued: “This plaintiff has already had this tactic disapproved by the Court of Appeal in this case .” Kajikuri told the court that Becker had accepted the documentation that Kajikuri provided supporting his cost bill, but refused to abandon his request for an advisory opinion. Kajikuri argued that the court’s previous ruling that the marriage issues do not apply is law of the case and urged the court to deny the request for an advisory ruling. He also argued that our decision in the second appeal was not an invitation for Becker to provide the court with additional evidence of his marriage to Skelton.

In a separate motion, Kajikuri asked the court to award him $1,800 in sanctions pursuant to Code of Civil Procedure section 128.7, based on the fees and costs he had incurred in responding to Becker’s frivolous motion to tax.

All further statutory references are to the Code of Civil Procedure, unless otherwise stated.

Becker did not file opposition to the sanctions motion per se. Instead, he filed his own motion for sanctions in which he requested sanctions of $50,000 payable “to the court for filing a Motion for Sanctions that is frivolous, lacking in due diligence and for the improper purpose [of] causing harassment to” Becker. He told the court Kajikuri had misrepresented his request for an advisory opinion. Becker stated he did not seek an advisory opinion “on collection” since it “would be futile to do so since he is a resident of Nevada, with no assets in California.” He challenged Kajikuri’s request for sanctions in the form of attorney fees, since Kajikuri’s attorneys had filed a declaration stating they were not charging Kajikuri a fee for defending Becker’s motions. He suggested one of Kajikuri’s attorneys had perjured herself in her declaration in support of the motion and accused her of unethical conduct. He alleged Kajikuri filed the sanctions motion to harass him.

The court denied Becker’s motion to tax costs, granted Kajikuri’s motion for sanctions in the amount of $1,000, and denied Becker’s request for sanctions. The court entered a judgment nunc pro tunc in favor of Kajikuri for $9,386.11 for the pretrial and appellate costs and sanctions awarded through February 28, 2007. Becker appeals.

Discussion

I. Standard of Review

We generally review an order awarding costs to a prevailing party for an abuse of discretion. (Heppler v. J.M. Peters Co. (1999) 73 Cal.App.4th 1265, 1298.) Appellate courts will disturb discretionary trial court rulings only upon a showing of a clear case of abuse and a miscarriage of justice. (Blank v. Kirwan (1985) 39 Cal.3d 311, 331.)

II. General Principles Governing Recovery of Costs on Appeal

At the time Becker filed his motion to tax costs, the recovery of costs on appeal was governed by California Rules of Court, former rule 8.276. Former rule 8.276(c) (renumbered rule 8.278(d)) set forth various types of costs that are recoverable on appeal. It provides that only certain costs items are recoverable, “if reasonable.” (Former rule 8.276(c)(1), renumbered 8.278(d)(1).) A party claiming appellate costs “must serve and file in the superior court a verified memorandum of costs under rule 3.1700.” (Former rule 8.276(d)(1), renumbered rule 8.278(c)(1).) A party who seeks to strike or tax appellate costs “may serve and file a motion in the superior court … in the manner required by rule 3.1700.” (Former rule 8.276(d)(2), renumbered rule 8.278(c)(2).) A verified cost memorandum is prima facie evidence that the prevailing party necessarily incurred the costs listed. (Nelson v. Anderson (1999)72 Cal.App.4th 111, 131.) The party seeking to tax costs has the burden to show that the costs listed were not incurred or that they were not reasonable or reasonably necessary. (Ibid.) Nothing in the applicable rules expressly authorizes a party contesting costs to use a motion to tax to obtain an advisory ruling on matters relating to collection of a judgment for costs or the effect of the defendant’s settlement with one party on an award of costs from another party.

All further rule references are to the California Rules of Court, unless otherwise stated. Former rule 8.276 governed both costs and sanctions on appeal. Former rule 8.276 was amended effective January 1, 2008, and the portion of the rule that addressed appellate costs was renumbered rule 8.278. There was no substantive change in the rule, except that rule 8.278(d)(1)(A) provides for the recovery of filing fees as costs on appeal while filing fees were not recoverable under former rule 8.276(c)(1).

III. Propriety of Requesting Advisory Opinion

Becker contends the trial court erred when it failed to provide an advisory opinion “on how the specific language of” the Agreement “might affect” Kajikuri’s costs claim. In essence, he asks us to revisit the same question raised in his first and second appeals.

The law of the case doctrine generally precludes multiple appellate review of the same issue in a single case. (People v. Gray (2005) 37 Cal.4th 168, 196 (Gray).) The principal reason for the doctrine is judicial economy. (Ibid.) “Under the law of the case doctrine, when an appellate court states in its opinion a principle or rule of law necessary to the decision, that principle or rule becomes the law of the case and must be adhered to throughout [the case’s] subsequent progress, both in the lower court and upon subsequent appeal.” (People v. Barragan (2004) 32 Cal.4th 236, 246, internal quotation marks omitted.)

In our decision in Becker’s first appeal, we held that the court did not err when it concluded that the marital issues were irrelevant to the question of Kajikuri’s entitlement to costs from Becker. We reasoned that resolution of the question of the validity of Plaintiffs’ marriage was not outcome determinative with regard to the issue of Kajikuri’s entitlement to costs. Although Becker’s loss of consortium claim derived from Skelton’s personal injury claim, it was a separate and distinct cause of action. Furthermore, Kajikuri was required to defend against Becker’s loss of consortium claim regardless of whether Becker and Skelton were validly married. We reasoned that the fact that Plaintiffs’ community property estate may ultimately become responsible to pay the judgment entered against Becker does not preclude the court from awarding costs against Becker or violate Kajikuri’s settlement agreement with Skelton. We explained that Family Code section 910 defines Plaintiffs’ ultimate liability for any judgment entered against Becker, but does not limit the court’s ability to enter a judgment against Becker. Thus, we rejected the same claim that Becker raised in his third motion to tax costs, regarding the effect the Agreement might have on Kajikuri’s claim for costs on appeal.

Family Code Section 910 provides in part: “(a) Except as otherwise expressly provided by statute, the community estate is liable for a debt incurred by either spouse before or during marriage, regardless of which spouse has the management and control of the property and regardless of whether one or both spouses are parties to the debt or to a judgment for the debt.”

In his second appeal, Becker argued that the court erred when it failed to provide him with the same advisory opinion he sought in his first appeal. We held that “[t]here is a strong argument that Becker’s motion went beyond the limited scope of a motion to tax. However, we [declined] to decide the legal issue of whether a party may use a motion to tax to obtain … an advisory ruling, as another analysis dispose[d] of Becker’s contentions” since there was insufficient evidence from which the court could have rendered an advisory ruling regarding the validity of Becker’s marriage to Skelton or the effect of the Agreement. We observed that Becker did not submit any evidence regarding the marriage in support of his second motion to tax. Instead, he relied on the pleadings to prove the marriage was valid. We rejected Becker’s contention that the fact of the marriage had been conclusively established by the allegations of his complaint, since Kajikuri denied the allegations of the complaint in his answer. Thus, we concluded the trial court did not abuse its discretion when it denied Becker’s request for an advisory opinion in his second motion to tax. Our conclusions are final and are law of the case. We will not revisit the issue in this case.

Becker argues that the law of the case doctrine does not apply to this appeal, since the evidence presented on the third motion to tax was different from the evidence he presented before.

Any new evidence “must be ‘materially,’ ‘essentially,’ or ‘substantially’ different before it can be held the doctrine does not apply. [Citations.] … Additional evidence merely cumulative to evidence of the same class given on the first appeal will not carry a question outside the operation of the rule as to the law of the case, but to successfully escape the rule a new and substantial fact must be brought into the case on the subsequent appeal.” (Estate of Baird (1924) 193 Cal. 225, 244; Yu v. Signet Bank/Virginia (2002) 103 Cal.App.4th 298, 312 [“Litigants are not free to continually reinvent their position on legal issues that have been resolved against them by an appellate court”].) Although Becker asked the court to look at evidence from the trial that he had not submitted before in addressing his request for an advisory opinion, he did not attach copies of the evidence at issue to his request for judicial notice and it is not part of the record on appeal. The evidentiary material he attached to his motion was similar to evidence that was included in the first appeal and does not persuade us that the law of the case doctrine should not apply here.

For these reasons, we again conclude that the trial court did not err when it declined to render an advisory opinion on the marriage issues and the effect of the Agreement on Kajikuri’s cost claim.

IV. Whether Kajikuri Can Recover Attorney Fees as Sanctions

Becker challenges the $1,000 sanctions award to Kajikuri, arguing that Kajikuri is not entitled to attorney fees as sanctions, since he did not incur any fees for the motions at issue because Kajikuri’s counsel has agreed to waive fees.

Under section 128.7, an attorney or unrepresented party who files a pleading, motion or similar paper impliedly certifies it has legal and factual merit. The attorney or unrepresented party is subject to sanctions for violation of this certification. (In re Marriage of Reese & Guy (1999) 73 Cal.App.4th 1214, 1220.)

We review the trial court’s order on a motion for section 128.7 sanctions for an abuse of discretion. (Guillemin v. Stein (2002) 104 Cal.App.4th 156, 167.)

Becker focuses on the word “incurred” in subdivision (c)(1) of the statute and argues that Kajikuri is not entitled to sanctions because he has not incurred any attorney fees, since his attorneys have agreed to waive fees associated with the motions at issue here. Kajikuri’s counsel told the court at the hearing on the motion that he was “waiving all attorney fees not recouped by [Kajikuri] in the sanctions motion.”

Kajikuri’s counsel’s decision to waive fees does not preclude an award of sanctions in this case. (See, e.g., Laborde v. Aronson (2001) 92 Cal.App.4th 459, 465-469.) In view of the statutory purpose to deter bad faith tactics and frivolous litigation, we conclude that section 128.7 does not preclude the sanctions award against Becker merely because his attorneys have agreed to waive any fees they do not recover on the motion for sanctions and hold the court did not abuse its discretion when it awarded the sanctions in this case.

In light of our conclusion, we need not address Becker’s assertion that Kajikuri’s attorneys committed misconduct when they prepared the memorandum of costs and the declaration in support of the motion for sanctions, which stated that Kajikuri had incurred costs and attorney fees related to the motions at issue.

V. Statement of Decision

Becker maintains the order awarding sanctions to Kajikuri must be reversed because the court failed to render a statement of decision on the motion for sanctions, despite Becker’s timely request for one.

Section 632 governs statements of decision. “Cases decided under section 632 generally have held that a statement of decision is not required upon decision of a motion.” (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1294 [motion for attorney fees], citing Lavine v. Hospital of the Good Samaritan (1985) 169 Cal.App.3d 1019, 1024-1026 [motions for production of records and to disqualify the trial judge and opposing counsel].) Exceptions to the general rule have been created by statute and case law. (In re Marriage of Baltins (1989) 212 Cal.App.3d 66, 80.) Becker has not cited any cases or statutes creating an exception for an order on a motion for costs on appeal and we see no compelling reason to create an exception to the traditional rule in such cases. Since a statement of decision was not required, the court did not err by failing to issue one.

Section 632 provides in relevant part: “In superior courts, upon the trial of a question of fact by the court, written findings of fact and conclusions of law shall not be required. The court shall issue a statement of decision explaining the factual and legal basis for its decision as to each of the principal controverted issues at trial upon the request of any party appearing at the trial. … The request for a statement of decision shall specify those controverted issues as to which the party is requesting a statement of decision. … [¶] The statement of decision shall be in writing, unless the parties appearing at trial agree otherwise; however, when the trial is concluded within one calendar day or in less than 8 hours over more than one day, the statement of decision may be made orally on the record in the presence of the parties.”

Becker also argues that Judge Kingsley, who heard the trial testimony and presided over the other post-trial motions, should have prepared the statement of decision. He did not object to the assignment of the motion to tax or the sanctions motions to Judge O’Farrell in the court below and has therefore forfeited any claim of error related to the assignment of these matters to Judge O’Farrell rather than Judge Kingsley. (Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184-185.)

VI. Failure to Rule on Requests for Judicial Notice

Becker argues that the order and the judgment on the motions at issue in this appeal “are defective, baseless and totally inadequate” because the court failed to expressly rule on the parties’ requests for judicial notice.

Becker asked the court to judicially notice material from the trial, including: (1) a motion in limine regarding the marriage, (2) medical records that allegedly proved the parties lived together and “were treated as husband and wife” in Colorado, (3) the testimony of Becker and Skelton that they considered themselves married, and (4) depositions that were entered into evidence. He also asked the court to judicially notice the settlement agreement between Kajikuri and Skelton and this court’s opinion in Becker’s second appeal. Copies of the trial materials and the settlement agreement are not attached to the request for judicial notice and are not part of the record on appeal. Kajikuri asked the court to judicially notice our decision in the first appeal. The court did not rule on the requests for judicial notice orally at the hearing on the motions or in writing.

In his opening brief on appeal, Becker states, “[O]rdering entire trial transcripts searching for scattered snippets to present on appeal would be cost prohibitive, and such ‘opinions’ would be without context and subjective.”

Becker relies on Evidence Code section 456, which provides: “If the trial court denies a request to take judicial notice of any matter, the court shall at the earliest practicable time so advise the parties and indicate for the record that it has denied the request.” The code section only requires the court to advise the parties and make an express ruling on the record when it denies a request for judicial notice. Since there is no express ruling in the record, we surmise that the court granted the requests for judicial notice. Nothing about the court’s failure to rule on the requests for judicial notice impedes our review of the issues on appeal.

VII. Adequacy of Sanctions Order

Becker contends the sanctions order must be reversed because the trial court failed to make specific findings supporting the $1,000 sanctions award. He argues the trial court did not consider necessary factors such as his ability to pay, the minimum amount needed to deter future conduct, and the reasonableness of the attorney fees requested by Kajikuri.

As we explained in the last appeal, section 128.7, subdivision (e) provides: “When imposing sanctions, the court shall describe the conduct determined to constitute a violation of this section and explain the basis for the sanction imposed.” The plain wording of the statute requires the court to “describe” the sanctionable conduct and “explain the basis for the sanction imposed.” The latter phrase refers to the type and amount of the sanction.

The wording of section 128.7, subdivision (e) is almost identical to Rule 11(c)(3) of the Federal Rules of Civil Procedure (28 U.S.C.) which prescribes the content of sanction orders under Rule 11. Federal case law interpreting Rule 11 is persuasive authority with regard to the meaning of section 128.7. (Guillemin v. Stein, supra, 104 Cal.App.4th at p. 167.)

Rule 11(c)(3) provides: “When imposing sanctions, the court shall describe the conduct determined to constitute a violation of this rule and explain the basis for the sanction imposed.”

As we held in the second appeal, section 128.7, subdivision (e) does not require the court to explain its reasons for granting or denying a sanctions motion in writing. An oral explanation on the record of the reasons for imposing sanctions and the amount of the sanction is sufficient. (§ 128.7, subd. (e); Advisory Com. Notes, Fed. Rules Civ. Proc., 28 U.S.C.A. (2007 supp.) foll. rule 11, p. 482 [“If the court imposes a sanction, it must, unless waived, indicate its reasons in a written order or on the record”].)

In this case, the court said it was imposing sanctions against Becker because the motion to tax was “frivolous.” Further explanation was not required, since the frivolousness of Becker’s motion to tax, its improper purpose, and evidence supporting the amount of the sanctions were apparent from the record and readily discernible. (Thomas v. Capital Sec. Services, Inc. (5th Cir. 1988) 836 F.2d 866, 883.) There was absolutely no merit to the motion to tax the $71.25 Kajikuri claimed for procuring the record on appeal. No reasonable attorney would ever have questioned the amount and Kajikuri was not required to provide documentation supporting the amount claimed. His attorney’s declaration on the memorandum of costs that the costs were correct and necessarily incurred was sufficient. (Bach v. County of Butte (1989) 215 Cal.App.3d 294, 308.) Becker continued to pursue the matter, even after Kajikuri’s counsel provided him with documentation supporting the amount claimed. Becker used the cost bill procedure as a pretext to obtain the advisory ruling that he was denied in his first two motions to tax and first two appeals. In addition, Kajikuri’s attorneys provided the court with a declaration that supported the claim that they had incurred $1,800 in attorney fees and a filing fee opposing the unnecessary motion to tax and the motion for sanctions. Given the history and circumstances of this case, the trial court was not required to provide any further explanation for its decision to award sanctions.

VIII. Denial of Becker’s Sanctions Motion

Becker contends the court erred when it denied his motion for $50,000 in section 128.7 sanctions and when it failed to make the requisite findings and state the reasons for denying his motion on the record. We find nothing sanctionable about Kajikuri’s conduct and we have concluded that the court did not err when it imposed sanctions against Becker. In our view, the court did not err when it denied Becker’s motion for sanctions.

Section 128.7 provides that the court “shall describe the conduct determined to constitute a violation of this section and explain the basis for the sanction imposed” when “imposing sanctions.” (§ 128.7, subd. (e).) The statute does not require the court to state its reasons for denying a section 128.7 sanctions motion. We therefore conclude the court did not err when it failed to state its reasons for denying Becker’s sanctions motion.

IX. Entry of Orders Awarding Sanctions Nunc Pro Tunc

Becker asserts the trial court erred when it entered judgment on the sanctions orders nunc pro tunc.

On May 2, 2003, the court entered a judgment awarding Kajikuri prejudgment costs of $7,001.06. The court filed orders awarding Kajikuri sanctions related to the second motion to tax ($945 in sanctions) on April 22, 2005, and the third motion to tax ($1,000 in sanctions) on February 28, 2007. On February 28, 2007, the court entered a second judgment, which included the original judgment for pretrial costs, the two awards of costs on appeal, and the two sanctions awards. The second judgment provided that the entire amount due for costs and sanctions ($9,386.11) shall “be entered nunc pro tunc as of the date of the original Judgment, filed on May 2, 2003.”

Becker challenges the inclusion of the sanctions awards in the second judgment on the grounds that it effectively increases the amount of the sanction. He argues that this increase in the amount of sanctions operates as either amendments to the motions for sanctions or a new motion, either of which is procedurally defective. Kajikuri does not respond to these contentions.

In our view, the sanctions awards relate to conduct that occurred post-judgment and are separate and distinct from the orders awarding costs. We shall therefore direct the court to modify the judgment to reflect entry of judgment on the sanctions orders as of February 28, 2007.

Disposition

The court is directed to modify the second judgment to reflect entry of judgment on the orders awarding sanctions as of February 28, 2007. As so modified, the judgment is affirmed. Kajikuri is awarded his costs on appeal.

In awarding Kajikuri costs on appeal, we acknowledge the statement in his brief that he “is committed to ending this litigation” by a “plan to refrain from taking any action before the trial court which will [give] Becker an opportunity to file yet another rule [8.278] motion.” While this sentiment is understandable, Kajikuri is nevertheless entitled to costs.

WE CONCUR: Bamattre-Manoukian, Acting P.J., Duffy, J.


Summaries of

Becker v. Kajikuri

California Court of Appeals, Sixth District
Mar 18, 2008
No. H031531 (Cal. Ct. App. Mar. 18, 2008)
Case details for

Becker v. Kajikuri

Case Details

Full title:DONALD BECKER, Plaintiff and Appellant, v. HISASHI KAJIKURI, Defendant and…

Court:California Court of Appeals, Sixth District

Date published: Mar 18, 2008

Citations

No. H031531 (Cal. Ct. App. Mar. 18, 2008)