Opinion
A122961 Sonoma County Super. t. No. SCV-237667
12-21-2010
CITY OF SANTA ROSA et al., laintiffs and Respondents, v. RAMAN D. PATEL et al., efendants and Appellants.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 a prior appeal in this red light abatement law action (Pen. Code, § 11225 et seq.), we modified the trial courts judgment awarding damages. (City of Santa Rosa v. Patel (May 25, 2010, A122151) [nonpub. opn.].) In this appeal, the Patels challenge the courts order awarding costs. We conclude that they have waived their right to challenge the cost award on appeal because they failed to file a motion to tax costs in the trial court.
The Patels are: Raman D. Patel, individually and as trustee of the Raman D. and Jashu R. Patel Family Trust, Raman D. and Jashu R. Patel Residual Trust, and Raman D. and Jashu R. Patel Survivors Trust, and as general partner of the Jas 4 Ray Properties, L.P., Rita Patel, David Stafford, and Prita Patel.
On July 1, 2008, following the courts entry of judgment, the City of Santa Rosa and the People of the State of California (collectively, the City) filed a memorandum of costs. The City sought the usual costs of litigation as well as attorney fees of $271,249.75 and costs of $77,710.22 attributed to the cost of demolishing the Llano Motel. The Patels did not file a motion to tax the Citys costs. The trial court awarded costs to the City, finding that, as the prevailing party, it was entitled to costs pursuant to Civil Code section 3496, Code of Civil Procedure section 1033.5, and the stipulation between the parties entitling the City to recover the costs incurred in demolishing the Llano Motel. The court further found that the Patels failure to file a motion to tax costs constituted a waiver of any objections to the award. The court deferred entry of an award of attorney fees pending the filing of a motion by the City. This appeal followed.
As explained in Patel v. Jakela, Inc. (Dec. 31, 2009, A121611) [nonpub. opn.] (slip opn., p. 2), because the Patels failed to demolish the motel as they had agreed to do by stipulation, the City was authorized to perform the demolition and to recover all costs and expenses incurred in undertaking the demolition.
The Patels challenge the courts costs order contending that it erred in awarding demolition costs. The Patels, however, failed to file a motion to tax costs in the trial court. Their failure to file a motion to tax costs constitutes a waiver of the right to object to the cost award on appeal. (Douglas v. Willis (1994) 27 Cal.App.4th 287, 289-290; Santos v. Civil Service Bd. (1987) 193 Cal.App.3d 1442, 1447.)
The Patels cite Civil Code section 3496, providing for an award of costs and fees to the prevailing party in a public nuisance abatement action, as precluding the courts award here as the City did not file a motion for costs pursuant to that provision. The Patels failed to raise this issue below and are precluded from arguing it for the first time on appeal. (Martinez v. Scott Specialty Gases, Inc. (2000) 83 Cal.App.4th 1236, 1249.) In any event, by stipulation they agreed that the City could recover the costs incurred to demolish the Llano Motel. The court did not err in awarding the demolition costs.
DISPOSITION
The Citys motion to dismiss the appeal is denied as moot.
RIVERA, J.
We concur:
RUVOLO, P.J.
REARDON, J.