Opinion
NOT TO BE PUBLISHED
Superior Court County No. CIV 225011 of Ventura, Ken W. Riley, Judge,
Tovar & Cohen LLP, René Tovar, David J. Cohen for Plaintiff and Appellant.
Law Offices of Alan E. Wisotsky, Alan E. Wisotsky, Jeffrey Held for Defendant and Respondent.
PERREN, J.
Michelle Fateh appeals from a judgment of nonsuit on her complaint for malicious prosecution in favor of respondent Abbas Paymard on the ground that there was no favorable termination of the underlying lawsuit. She also appeals from the court's denial of her Pitchess motion and her motion to tax expert witness fees. We affirm the judgment, except to modify the award of costs.
FACTUAL AND PROCEDURAL HISTORY
Fateh is Paymard's niece. Fateh's father, Bijan, is Paymard's brother. Since childhood, Paymard was very close to the Fateh family, living with them on various occasions over the years. Bijan owned several gas stations. Fateh, who had law and business degrees, helped Bijan with the financial side of the business. Paymard leased space from Bijan in two of the stations, operating smog check stations. Paymard was also a reserve deputy with the Ventura County Sheriff's Department.
The relationship between Paymard, Fateh and Bijan soured when Bijan and his wife began contentious divorce proceedings. Paymard sided with Fateh's mother, paying her attorney fees in the divorce action and giving her other financial support. Fateh sided with her father. While the divorce proceedings were pending, Fateh went to a psychologist. She claims that it was in these sessions that the repressed memories of Paymard's sexual abuse of her first surfaced. She alleged that more than 20 years earlier he sexually abused her on several occasions.
In late 2000, Fateh stored personal belongings in one of the garage bays Paymard was renting from Bijan. Paymard asked Fateh to remove her belongings so he could operate his business. Fateh refused.
In September 2002, Paymard filed a complaint against Fateh and Bijan, alleging fraud, breach of contract, intentional infliction of emotional distress, civil conspiracy, and intentional and negligent interference with prospective business advantage based on Fateh's failure to remove her belongings. In November 2002, 49 days after the complaint was filed, Paymard filed a request for dismissal without prejudice.
Fateh filed this complaint against Paymard and his smog inspection business in August 2003 alleging unfair competition, sexual assault and battery, intentional infliction of emotional distress, interference with prospective economic advantage and malicious prosecution. In response to Paymard's successful demurrer, Fateh filed a first amended complaint alleging unfair competition, sexual assault, intentional infliction of emotional distress and malicious prosecution. Paymard answered the first amended complaint.
In October 2003, Fateh served a subpoena on the Ventura County Sheriff's Department seeking records related to her sexual abuse allegations against Paymard. The sheriff's department responded that, because Paymard was a reserve deputy with the department, she was required to file a Pitchess motion to obtain any records. Fateh filed a Pitchess motion for disclosure of peace officer personnel records and all documents relating to her allegations against Paymard, including reports, tapes and transcripts of interviews and documents that she had provided the department. The trial court denied the motion finding she had not shown good cause.
In August 2004, Paymard filed a motion for summary judgment or in the alternative for summary adjudication. The trial court denied the motion as to the claims for sexual assault, malicious prosecution and intentional infliction of emotional distress. The motion was granted as to the claim for unfair competition.
The remaining claims were tried to a jury. After the close of Fateh's evidence, the court granted Paymard's motion for nonsuit on the malicious prosecution claim. The jury found in favor of Paymard on the sexual assault and infliction of emotional distress claims. The court denied Fateh's motion for a new trial and awarded costs in the amount of $94,700.04.
DISCUSSION
Malicious Prosecution
The elements of a cause of action for malicious prosecution are that (1) the prior action was commenced by or at the direction of the defendant and was pursued to a legal termination in plaintiff's favor; (2) it was brought without probable cause; and (3) it was initiated with malice. Whether or not an underlying lawsuit was terminated in favor of a malicious prosecution plaintiff is a question of law we review de novo. (Sierra Club Foundation v. Graham (1999) 72 Cal.App.4th 1135, 1149.)
The trial court nonsuited Fateh on the malicious prosecution claim because it found she did not meet her burden of showing that Paymard's lawsuit was terminated in her favor. "Favorable termination 'is an essential element of the tort of malicious prosecution, and it is strictly enforced.'" (StaffPro, Inc. v. Elite Show Services, Inc. (2006) 136 Cal.App.4th 1392, 1400.) "'If the termination does not relate to the merits--reflecting on neither innocence of nor responsibility for the alleged misconduct--the termination is not favorable in the sense it would support a subsequent action for malicious prosecution.'" (Casa Herrera, Inc. v. Beydoun (2004) 32 Cal.4th 336, 342.) "Where a proceeding is terminated other than on its merits, the reasons underlying the termination must be examined to see if it reflects the opinion of either the court or the prosecuting party that the action would not succeed." (Haight v. Handweiler (1988) 199 Cal.App.3d 85, 88.) "'If the resolution of the underlying litigation "leaves some doubt as to the defendant's innocence or liability, [it] is not a favorable termination, and bars that party from bringing a malicious prosecution action against the underlying plaintiff."'" (Robbins v. Blecher (1997) 52 Cal.App.4th 886, 893.)
Paymard voluntarily dismissed his lawsuit less than two months after he filed it. His stated reason for doing so, which the trial court accepted, is that, after talking to Bijan, he believed that it would be possible to mend the feud between the family members if he dismissed the lawsuit. The only evidence Fateh presented that the lawsuit terminated in her favor was that Paymard dismissed it soon after it was filed.
The record contains undisputed evidence of the bitter feud between Paymard, Fateh and Bijan. Fateh does not dispute that she stored personal items in one of the garage bays that Paymard intended to use for his smog inspection business. She also presented no evidence that the conversation between Paymard and Bijan concerning reconciliation did not occur. Here, the trial court accepted Paymard's reason for dismissing the lawsuit. The trial court's opinion clearly reflected its belief that Paymard's lawsuit was not dismissed because it lacked merit, but because Paymard was hoping to end the family feud.
Pitchess Motion
A Pitchess motion is a statutory procedure permitting access to certain peace officer personnel records upon a showing of good cause. (Evid. Code, §§ 1043-1045; Pen. Code, §§ 832.7, 832.8.) In City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 81-83, our Supreme Court described the statutory scheme as follows: "The Penal Code provisions define 'personnel records' (Pen. Code, § 832.8) and provide that such records are 'confidential' and subject to discovery only pursuant to the procedures set forth in the Evidence Code. (Pen. Code, § 832.7.) Evidence Code sections 1043 and 1045 set out the procedures for discovery in detail. . . . [S]ection 1043, subdivision (a) requires a written motion and notice to the governmental agency which has custody of the records sought, and subdivision (b) provides that such motion shall include, inter alia, '(2) A description of the type of records or information sought; and [¶] (3) Affidavits showing good cause for the discovery or disclosure sought, setting forth the materiality thereof to the subject matter involved in the pending litigation and stating upon reasonable belief that such governmental agency identified has such records or information from such records.'"
Pitchess v. Superior Court (1974) 11 Cal.3d 531.
The Supreme Court went on to say: "A finding of 'good cause' under [Evidence Code] section 1043, subdivision (b) is only the first hurdle in the discovery process. Once good cause for discovery has been established, [Evidence Code] section 1045 provides that the court shall then examine the information 'in chambers' in conformity with [Evidence Code] section 915 (i.e., out of the presence of all persons except the person authorized to claim the privilege and such other persons as he or she is willing to have present), and shall exclude from disclosure several enumerated categories of information, including: (1) complaints more than five years old, (2) the 'conclusions of any officer investigating a complaint . . ." and (3) facts which are 'so remote as to make disclosure of little or no practical benefit.' ([Evid. Code,] § 1045, subd. (b).)" (City of Santa Cruz v. Municipal Court, supra, 49 Cal.3d 74, 83, italics omitted.)
Fateh initially requested any complaints of sexual assault filed against Paymard while he was working as a sheriff's deputy, as well as the documents she and her attorney submitted to the sheriff's department in connection with her own sexual assault complaint against him. At the hearing, Fateh's counsel narrowed the scope of the request to "those documents that she gave to the Sheriff, any documents Mr. Paymard says he is going to use to exculpate himself, and any documents the Court feels are relevant to this action." The trial court denied the motion on the ground that Fateh made no showing that relevant information in the personnel records could not be acquired by using some other discovery mechanism.
The court did not abuse its discretion. As Fateh sought only records that she had submitted to the sheriff's department and interviews conducted regarding her own complaint against Paymard, the trial court followed established case law in denying this request because she had other means of obtaining these records, i.e., her own files. (City of Azusa v. Superior Court (1987) 191 Cal.App.3d 693, 696.) Even if, as she claimed, she kept no copies, she was not prevented from testifying at trial as to Paymard's alleged assaults. Not only did she so testify, numerous other witnesses testified concerning her statements to them about her repressed memories of sexual assault. No prejudice resulted from denial of her motion.
Denial of Motion to Tax Costs
Paymard filed a cost bill requesting $94,700.04. Fateh objected to $63,943.45 of that amount. We review a denial of a motion to tax costs for abuse of discretion. (Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774.)
Under the American Rule, each party must bear its cost of litigation, unless otherwise provided by statute. Code of Civil Procedure section 1033.5 is one such statute. Section 1033.5 describes three types of costs: (1) Subdivision (a) describes items allowable as costs to a prevailing party under section 1032; (2) subdivision (b) describes items "not allowable as costs, except when expressly authorized by law"; and (3) subdivision (c)(4) describes items that "may be allowed or denied in the court's discretion" if not enumerated in subdivisions (a) and (b)." (Olson v. Automobile Club of Southern California (2008) 42 Cal.4th 1142, 1149.)
All further statutory references are to the Code of Civil Procedure.
Section 1033.5, subdivision (b) provides that the following items "are not allowable as costs, except when expressly authorized by law: [¶] (1) Fees of experts not ordered by the court. [¶] (2) Investigation expenses in preparing the case for trial. [¶] . . . [¶] (4) Costs in investigation of jurors or in preparation for voir dire. [¶] (5) Transcripts of court proceedings not ordered by the court."
Fateh asserts the court abused its discretion in making the following awards: (1) $1,064 for trial transcripts not ordered by the court; (2) $41,301.25 to a trial consulting service for three categories of services: focus group research, graphic development fees, and jury research and selection; (3) $18,843 for video-related services; and (4) $2,545.20 for messenger and investigation costs.
Fateh asserts the award of costs for trial transcripts was not permitted because they were not authorized by the court. Paymard has not pointed to anything in the record showing the court authorized the transcripts, nor has he made any argument in his brief concerning these costs. Therefore, we accept Fateh's argument that the award was erroneous.
Fateh asserts the trial consulting service fees are expert witness fees that were not authorized by the court. Pursuant to section 1033.5, subdivision (b)(1), fees of expert witnesses not ordered by the court (see id., subd. (a)(8)) are not allowed unless "expressly authorized by law." If an award of expert witness fees is not expressly authorized, "'the trial court's discretion . . . is limited to determining whether any allowable costs were "reasonably necessary" and "reasonable in amount" [citation], and to awarding or denying additional items of costs that are not mentioned as either allowable or nonallowable in . . . section 1033.5." (Olson v. Automobile Club of Southern California, supra, 42 Cal.4th 1142, 1149.)
Paymard contends these services were not services of an expert witness, but were trial consulting costs. He points out that nothing in section 1033.5 disallows costs of a trial consultant. He argues that the court had discretion in awarding these fees and did not abuse that discretion because the consultants were necessary because of the highly charged nature of child sexual abuse.
We agree with Fateh. Paymard describes the services as being provided by a team of psychologists specializing in child abuse cases. These psychologists were hired for their expertise. Paymard has cited no case or other authority permitting a cost award for these types of services. Nor has he pointed to anything in the record showing that the court authorized the hiring of experts. Also absent from Paymard's argument is citation to any law otherwise allowing expert witness fees in the circumstances of this case. These costs also appear to be at least, in part, costs not allowed because they relate to "investigation of jurors or in preparation for voir dire." Therefore, the court erred in awarding costs for these items.
Fateh argues that the court erred in awarding costs for video-related services. These costs are neither allowed nor disallowed by section 1033.5. Therefore, whether an award is appropriate is within the discretion of the trial court. (§ 1033.5, subd. (b)(4).) Paymard cites cases where costs were allowed for similar items. (Science Applications Internat. Corp. v. Superior Court (1995) 39 Cal.App.4th 1095; El Dorado Meat Co. v. Yosemite Meat & Locker Service, Inc. (2007) 150 Cal.App.4th 612.) Precedent supports such an award and we cannot say the court abused its discretion in this regard.
Fateh asserts the award of costs for messenger services and investigation was not permitted. Paymard has cited no statute permitting these costs nor makes any argument concerning them. Paymard has not met his burden in this respect. Therefore, we accept Fateh's argument that the award was erroneous.
Accordingly, the costs awarded for trial transcripts not ordered by the court ($1,064), for trial consulting services ($41,301.25), and for messenger and investigation costs ($2,545.20) are ordered stricken from the judgment resulting in an award of costs totaling $49,789.59. As so modified, the judgment is affirmed. Respondent is awarded costs on appeal.
We concur: GILBERT, P.J., COFFEE, J.