Opinion
G059072
05-17-2021
LLOYD COPENBARGER, as Trustee, etc., Plaintiff and Appellant, v. MORRIS CERULLO WORLD EVANGELISM et al., Defendants and Respondents.
Hall Griffin, George L. Hampton IV and Laura J. Petrie for Plaintiff and Appellant. G10 Galuppo Law, Daniel T. Watts and Dominick Severance for Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 30-2012-00605730) OPINION Appeal from a postjudgment order of the Superior Court of Orange County, Thomas A. Delaney, Judge. Affirmed in part, reversed in part, and remanded. Hall Griffin, George L. Hampton IV and Laura J. Petrie for Plaintiff and Appellant. G10 Galuppo Law, Daniel T. Watts and Dominick Severance for Defendants and Respondents.
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INTRODUCTION
At stake in this appeal is about $37,500 in costs that were awarded to Morris Cerullo World Evangelism, Inc. (MCWE) for being the prevailing party in two prior appeals. Lloyd Copenbarger, as Trustee of the Hazel L. Maag Trust (Copenbarger), appeals from an order denying in part his motion to tax costs. He contends that all but a few cost items should have been disallowed.
We have considered each of Copenbarger's claims of error. We reverse the order denying the motion to tax costs in the following respects:
1. For the costs for binding, filing, and serving the opening brief, request for judicial notice, combined cross-respondents' brief and appellants' reply brief, and letter brief, MCWE is entitled only to the costs of filing and service, which cannot exceed $440 total, and to the costs of reproducing, binding, and serving the one copy of each served on the superior court.
2. MCWE is not entitled to any costs incurred in connection with the petition for rehearing.
3. MCWE may not recover more than $775 for filing a notice of appeal.
In all other respects, the order denying Copenbarger's motion to tax costs is affirmed and we remand with directions set forth in the disposition.
FACTS AND PROCEDURAL HISTORY
Copenbarger sued MCWE for declaratory relief and breach of a settlement agreement made to resolve various disputes, including an unlawful detainer action. (Copenbarger v. Morris Cerullo World Evangelism, Inc. (2018) 29 Cal.App.5th 1, 5-6 (Copenbarger I).) Following a bench trial, the trial court found MCWE had breached the settlement agreement by not timely dismissing with prejudice the unlawful detainer action. (Id. at p. 7.) Judgment awarding Copenbarger $118,000 in damages was entered in January 2017. (Ibid.) MCWE filed a notice of appeal from the judgment. (Id. at p. 8.) The appeal was docketed as case No. G054731. (Id. at p. 1.)
In April 2017, the trial court issued a postjudgment order granting a motion for attorney fees brought by Copenbarger and denying a motion for attorney fees brought by Roger Artz as a cotrustee of the Plaza del Sol Real Estate Trust (Artz). The trial court awarded Copenbarger $176,190 in attorney fees and over $10,500 in costs. The damages, attorney fees, and costs were incorporated into an amended judgment that was entered in May 2017. On June 16, 2017, MCWE filed a surety bond to stay enforcement of the amended judgment pending appeal.
MCWE filed a notice of appeal from the order granting Copenbarger's motion for attorney fees. MCWE's appeal was docketed as case No. G055129. Artz filed a separate notice of appeal, and his appeal was docketed as case No. G055131. Artz's appeal and MCWE's appeal were consolidated under case No. G055129.
In Case No. G054731, a panel of this court reversed the judgment awarding Copenbarger $118,000 in damages. (Copenbarger I, supra, 29 Cal.App.5th at pp. 1, 4.) The opinion in Copenbarger I was filed on October 19, 2018. (Id. at p. 1.) Artz was not a party to that appeal. The disposition was to reverse the judgment and remand with directions to enter judgment in favor of MCWE. (Id. at pp. 17-18.) The disposition states: "MCWE shall recover its costs on appeal." (Id. at p. 18.) The remittitur issued on February 28, 2019.
In a nonpublished opinion, Copenbarger v. Morris Cerullo World Evangelism (June 10, 2019, G055129) (Copenbarger II), a panel of this court reversed the portion of the attorney fees order awarding Copenbarger attorney fees and remanded the matter for the trial court to make a new determination of prevailing party status and, depending on that determination, award attorney fees. Both MCWE and Artz were parties to that appeal, but the disposition states, "MCWE only may recover its costs on appeal." The remittitur in Copenbarger II issued on August 12, 2019.
On September 20, 2019, MCWE and Artz filed a single, joint memorandum of costs seeking costs as the prevailing parties on appeal for both Copenbarger I and Copenbarger II. MCWE and Artz sought a total of $40,850.82 in costs.
MCWE applied for costs by using Judicial Council form MC-010, which is the memorandum of costs for trial court costs. MCWE should have used Judicial Council form APP-013, Memorandum of Costs on Appeal, which was adopted for mandatory use.
In October 2019, Copenbarger filed a motion to tax costs. He sought to tax all costs claimed for Copenbarger I on the ground the memorandum of costs was not filed within 40 days of the issuance of the remittitur in that appeal. He also sought to tax: (1) $1,242.71 in costs incurred by Artz; (2) $9,153.35 in costs incurred in binding, filing, and serving various briefs; (3) $2,121.38 of the costs incurred jointly by MCWE and Artz; and (4) $9,142 for one year's premium on a bond obtained to stay enforcement of the judgment pending appeal.
MCWE filed opposition to the motion to tax costs, and this opposition included a declaration from attorney Daniel Watts. MCWE argued its memorandum of costs was timely as to costs incurred in Copenbarger I because it was not until October 29, 2019 that the trial court entered a judgment declaring MCWE to be the prevailing party in the trial court litigation. MCWE asked for relief under Code of Civil Procedure section 473, subdivision (b) (section 473(b)) to the extent it "missed a deadline."
The trial court granted in part and denied in part the motion to tax costs. The court concluded the memorandum of costs was untimely as to costs incurred in Copenbarger I but granted MCWE relief under section 473(b) "[d]ue [to] the confusion with the varying timeline[s] of the two appeals." The court agreed with Copenbarger that Artz was not entitled to recover costs on appeal and taxed $2,156.35 of the costs claimed by Artz. In all other respects, the trial court denied the motion to tax costs. The court declined to apportion jointly incurred costs between MCWE and Artz. Copenbarger appealed from the order granting and denying its motion to tax costs.
DISCUSSION
I. Appealability and Standard of Review
An order denying a motion to tax costs on appeal is appealable under Code of Civil Procedure section 904.1, subdivision (a)(1) as a postjudgment order if the underlying appellate decision affirmed the judgment or did not result in a new trial. (Krikorian Premiere Theatres, LLC v. Westminster Central, LLC (2011) 193 Cal.App.4th 1075, 1083-1085 & fn. 4; Kajima Engineering and Construction, Inc. v. Pacific Bell (2002) 103 Cal.App.4th 1397, 1402.) The opinion in Copenbarger I, though reversing the judgment, directed entry of a judgment in favor of MCWE; therefore, the order on Copenbarger's motion to tax costs is an appealable postjudgment order.
An award of costs or an order taxing costs is reviewed under the abuse of discretion standard. (LAOSD Asbestos Cases (2018) 25 Cal.App.5th 1116, 1123; El Dorado Meat Co. v. Yosemite Meat & Locker Service, Inc. (2007) 150 Cal.App.4th 612, 617.) A trial court's decision is an abuse of discretion if it is based on an error of law (Bank of America, N.A. v. Superior Court (2013) 212 Cal.App.4th 1076, 1089) or if the court's factual findings are not supported by substantial evidence (Millview County Water Dist. v. State Water Resources Control Bd. (2016) 4 Cal.App.5th 759, 769).
II. Costs Incurred in Copenbarger I
Copenbarger argues MCWE was not entitled any costs incurred in Copenbarger I because the memorandum of costs was not timely filed with respect to recovery of costs in that appeal. A party claiming costs on appeal must file in the trial court a memorandum of costs within 40 days of issuance of the remittitur. (Cal. Rules of Court, rule 8.278(c)(1).) "The time provisions relating to the filing of a memorandum of costs, while not jurisdictional, are mandatory." (Hydratec, Inc. v. Sun Valley 260 Orchard & Vineyard Co. (1990) 223 Cal.App.3d 924, 929.)
References to rules are to the California Rules of Court.
The remittitur in Copenbarger I issued on February 28, 2019. Forty days later—April 9, 2019—was the last day on which to file a memorandum of costs to recover costs on appeal in that matter. MCWE did not file a memorandum of costs until September 20, 2019, over five months after the deadline. The memorandum of costs was untimely as to Copenbarger I.
Failure to file a timely memorandum of costs results in a forfeiture of a party's entitlement to costs. (Moulin Electric Corp. v. Roach (1981) 120 Cal.App.3d 1067, 1070.) A party may seek relief from default for failure to file a memorandum of costs by an application under Code of Civil Procedure section 473(b). (Moulin Electric Corp. v. Roach, supra, at p. 1070.)
MCWE sought and the trial court granted relief under section 473(b) from default in not timely filing a memorandum of costs for Copenbarger I. Copenbarger argues the trial court erred by granting MCWE relief under section 473(b). We need not decide whether the trial court erred in granting relief because any error would have been harmless.
Copenbarger identifies the following three cost items as being associated with Copenbarger I: (1) filing and service fees for notice of appeal ($913.64); (2) costs for binding, filing, and service of opening brief and request for judicial notice ($6,969.63); and (3) surety bond premium for June 2017 through June 2019 ($9,142 per year x 2 = $18,284). Figuring out which costs were incurred for which appeal is a bit challenging because MCWE lumped all costs from both appeals into a single memorandum of costs, and used the wrong form to boot. Nonetheless, it is fairly certain that the first two items identified by Copenbarger were incurred in connection with Copenbarger II.
As to the first item, MCWE's memorandum of costs requested the cost of a filing fee incurred by Artz and a filing fee incurred by MCWE. MCWE paid a filing fee in case No. G055129, and Artz paid a filing fee only in Case No. G055131. Artz's appeal (G055131) was consolidated with MCWE's appeal (G055129) for all purposes, thereby creating Copenbarger II. MCWE was entitled to recover as a cost on appeal the filing fee paid in Copenbarger II.
Item two, costs for binding, filing, and service of the opening brief and request for judicial notice, must have been for Copenbarger II because MCWE filed a request for judicial notice in Copenbarger II but not in Copenbarger I.
Item three, the cost of the surety bond premiums, was incurred in both appeals. A prevailing party on appeal may recover "the cost to procure a surety bond, including the premium." (Rule 8.278(d)(1)(F).) MCWE filed the notice of appeal in Copenbarger I on March 17, 2017. MCWE filed the notice of appeal in Copenbarger II on June 27, 2017. MCWE obtained and filed the surety bond on June 16, 2017 to stay enforcement of the amended judgment pending appeal. The amended judgment included both the award of damages, which were the subject of Copenbarger I, and an award of attorney fees against MCWE, which were the subject of Copenbarger II.
Neither Copenbarger nor MCWE has offered any proposal for dividing the surety bond premiums between the two appeals. The burden was on Copenbarger, as the party seeking to tax costs, to demonstrate to the trial court that a cost item was unnecessary or unreasonable. (Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1266.) The order on the motion to tax costs is presumed correct, and Copenbarger, as appellant, has the burden of affirmatively demonstrating error. (Fladeboe v. American Isuzu Motors Inc. (2007) 150 Cal.App.4th 42, 58.) Copenbarger therefore had the burden of demonstrating which portion of the surety bond premiums was attributable to Copenbarger I: He has not met that burden.
III. Costs Incurred in Copenbarger II
Copenbarger challenges four categories of costs awarded to MCWE in Copenbarger II: (1) costs to serve, mail, file, and reproduce briefs, a request for judicial notice, and a petition for rehearing ($9,080.51); (2) cost of filing a notice of appeal ($913.64); (3) the final year's surety premium ($9,142); and (4) costs incurred jointly by MCWE and Artz ($2,121.38). A. Costs to Serve, Mail, File, and Reproduce Briefs, Request for Judicial Notice, and Petition for Rehearing
Recoverable costs on appeal are identified in rule 8.278(d)(1). They include "[t]he costs to notarize, serve, mail, and file the record, briefs, and other papers" (Rule 8.278(d)(1)(D)) and "[t]he cost to print and reproduce any brief, including any petition for rehearing or review, answer, or reply" (Rule 8.278(d)(1)(E)).
MCWE claimed the following costs related to producing and filing briefs and other papers in Copenbarger II: (1) binding, filing, and serving opening brief and request for judicial notice ($6,969.63); (2) binding, filing, serving combined cross-respondents' brief and appellants' reply brief ($1,023.15); (3) filing and serving letter brief ($171.50); and (4) binding, filing, and serving petition for rehearing ($916.23).
We agree with Copenbarger that the costs claimed by MCWE for those items were unjustified. The briefs in both appeals, the request for judicial notice, and the petition for rehearing were electronically filed and served. Only the trial court received paper copies. Thus, costs to bind, file, serve, and reproduce the briefs and other papers and the costs of service should have been minimal.
We conclude in subpart III.D that the trial court should have taxed the entire amount of costs related to the petition for rehearing because it related only to Artz, who was not entitled to recover costs on appeal.
MCWE contends those costs were justified because it contracted with an outside company called CounselPress to format, print, and serve the briefs and to file the briefs and other papers. The only items recoverable as costs on appeal are those identified in rule 8.278(d)(1) (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2020) ¶ 14.75, p. 14-16), and rule 8.278(d)(1) does not permit the recovery of costs incurred in formatting briefs and other papers. None of the briefs or other papers was printed or photocopied, except for the copies served on the trial court.
Costs to serve and file briefs and other papers include "fees charged by electronic filing service providers for electronic filing and service of documents." (Advisory Com. com., rule 8.278(d).) In his declaration, Daniel Watts stated that CounselPress charged $35 to electronically serve a brief, $50 to electronically file a brief, and $150 to file an appellate motion. At those rates, the maximum amount MCWE may recover for service and filing of briefs and the request for judicial notice is $440, plus the cost of service on the superior court. The trial court has discretion to award less. B. Filing Fee for Notice of Appeal
| Service on counsel: | $35 x 4 = $140 |
| Filing briefs: | $50 x 3 = $150 |
| Filing Request forJudicial Notice | $150 x 1 = $150 |
| TOTAL | $440 |
|---|
A party prevailing on appeal may recover filing fees. (Rule 8.278(d)(1)(A).) MCWE paid $775 to file the notice of appeal in Copenbarger II. MCWE claimed $913.64 but has offered no explanation for the additional $138.64. Costs awarded for filing fees must be reduced to $775. C. Surety Bond Premium
A prevailing party on appeal may recover "[t]he cost to procure a surety bond, including the premium." (Rule 8.278(d)(1)(F).) MCWE sought, and the trial court allowed, recovery of $27,426 in bond premiums. Of that amount, Copenbarger argues $9,142 should have been taxed because the evidence established the final premium was not paid. Although the parties briefed this issue at length, the resolution is quite straight-forward. MCWE was entitled to recover the surety bond premium because Copenbarger would not agree to release the bond after it was no longer needed. Whether or not the bond premium had been paid by the time MCWE filed the memorandum of costs is not germane because MCWE had incurred the cost of the premium.
The surety bond's renewal date was June 16, 2019. The remittitur in Copenbarger I had been issued the previous February. The record includes notices from the surety company to MCWE's counsel from as early as March 2019 that the bond was coming up for renewal and the renewal premium of $9,142 was due and owing. After June 16, the surety company sent notice to MCWE's counsel that the premium for the renewal period was past due. MCWE's counsel informed the surety company the bond was no longer needed because the Court of Appeal had reversed the judgment and the remittitur had issued. The surety company informed MCWE's counsel that an appeal bond cannot be cancelled and a court order was necessary to release the bond.
In July 2019, MCWE's counsel sent Copenbarger's counsel a letter requesting that counsel stipulate to release the bond. Copenbarger's counsel did not agree. In August 2019, the surety company sent the overdue bond premium to a collection agency. Because Copenbarger's counsel would not stipulate to releasing the bond, MCWE was forced to apply ex parte for an order to release the appeal bond. MCWE brought its ex parte application on November 7, 2019. The trial court granted the application and issued the requested order.
The record does not include a receipt or anything from the surety company to prove that the premium was paid. But Watts does state in his declaration that "[t]he costs stated in the memorandum of costs were reasonably necessary to the conduct of the litigation by [MCWE], were actually incurred by [MCWE], and were paid by [MCWE]." This is sufficient. D. Costs Incurred Jointly by MCWE and Artz
MCWE claimed the entirety of $2,121.38 in costs it had incurred jointly with Artz. Copenbarger argues the trial court erred by not allocating those costs between MCWE and Artz because Copenbarger II limited recovery of costs on appeal to MCWE. Copenbarger identifies three costs incurred jointly by MCWE and Artz: (1) binding, filing, and serving the combined cross-respondents' brief and appellants' reply brief ($1,023.15); (2) filing and serving a letter brief ($171.50); and (3) binding, filing and serving the petition for rehearing ($913.23).
If a prevailing party has incurred costs jointly with another party who is not a prevailing party for an award of costs, the trial court must apportion costs between the parties. (Charton v. Harkey (2016) 247 Cal.App.4th 730, 743-744.) "A prevailing party who is represented by the same counsel as a nonprevailing party may only recover those costs the prevailing party incurred and were reasonably necessary to the prevailing party's conduct of the litigation, not the other jointly represented parties' conduct of the litigation." (Id. at p. 744.) Allocation of costs is a discretionary decision. (Ibid.)
In this case, the trial court considered these principles and concluded all jointly incurred costs were reasonably necessary to MCWE's conduct of the litigation. We have concluded that, as to the combined cross-respondents' brief/appellants' reply brief and the letter brief, MCWE is entitled only to the costs of service and filing, and the cost of the paper copies served on the trial court. MCWE would have had to incur those costs if Artz were not a party to Copenbarger II.
The trial court erred as to costs for the petition for rehearing ($913.23) because it was filed for Artz's benefit only. The only ground raised in the petition for rehearing was: "The court's opinion did not decide—or even mention—whether Appellant Artz was entitled to attorney fees under the Agreement Re: Assignment or Code of Civil Procedure §1033.5." (Italics added.) The trial court should have taxed all of the costs claimed in connection with the petition for rehearing because Artz was not entitled to recover costs on appeal.
DISPOSITION
The order denying the motion to tax costs is reversed as to the following cost items (as identified on the memorandum of costs worksheet): (1) "Notice of Appeal (MCWE)"; (2) "Costs for binding, filing, and serving opening brief and request for judicial notice"; (3) "Costs for binding, filing, serving combined Cross-Respondents' Brief and Appellants' Reply Brief"; (4) "Costs for filing and serving Letter Brief"; and (5) "Costs for binding, filing, serving Petition for Rehearing."
The matter is remanded with the following directions: As to item 1, the trial court is directed to award costs in the amount of $775. As to items 2, 3, and 4, the trial court is directed to determine the appropriate amount of costs, which in total for all three items may not exceed $440 plus the reasonable cost to reproduce, bind, and serve the superior court copy of the opening brief, request for judicial notice, combined cross-respondents' brief and appellants reply brief, and letter brief. As to item 5, no costs may be awarded.
In all other respects, the order denying the motion to tax costs is affirmed. Because both sides prevailed in part, and in the interest of justice, no party may recover costs on appeal.
FYBEL, J. WE CONCUR: O'LEARY, P. J. BEDSWORTH, J.