Opinion
F083629
12-09-2022
RICKY TYRONE FOSTER, Plaintiff and Appellant, v. STU SHERMAN, as Warden, etc., Defendant and Respondent.
Ricky Tyrone Foster, in pro. per., for Plaintiff and Appellant. Rob Bonta, Attorney General, Phillip J. Lindsay, Assistant Attorney General, Maria G. Chan and Colby Mills, Deputy Attorneys General, for Defendant and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Kings County No. 19C0429 Valerie R. Chrissakis, Judge.
Ricky Tyrone Foster, in pro. per., for Plaintiff and Appellant.
Rob Bonta, Attorney General, Phillip J. Lindsay, Assistant Attorney General, Maria G. Chan and Colby Mills, Deputy Attorneys General, for Defendant and Respondent.
This matter is proper for disposition by a memorandum opinion in accordance with the California Standards of Judicial Administration, Standard 8.1. (See People v. Garcia (2002) 97 Cal.App.4th 847, 850-855 [use of memorandum opinions]; Cal. Const., art. VI, § 14 [appellate decisions "shall be in writing with reasons stated"].)
THE COURT [*]
In December 2019, plaintiff Ricky Tyrone Foster, a self-represented prison inmate, filed a petition for writ of mandate against Stu Sherman, warden of the California Substance Abuse and Treatment Facility in Corcoran. Foster alleged Sherman failed to properly process a formal inmate grievance on "CDCR 602" (form 602) relating to the vegetables being served with Kosher meals. The parties briefed the merits and Foster's response requested that the superior court grant his petition, vacate the filing fees, and refund the fees deducted from his prison trust account.
In October 2021, the superior court concluded Foster was entitled to have his grievance processed in accordance with the administrative appeals process developed by the Department of Corrections and Rehabilitation and ordered Sherman to process a resubmitted grievance in accordance with applicable regulations. In addition, the court's ruling and order stated: "Any other relief sought by [Foster] herein is denied." Based on the relief requested by Foster and applicable law, we interpret this denial of other relief to mean the court (1) refused to vacate the filing fees and refund the amount deducted from Foster's prison trust account and (2) chose not to allow costs to be recovered by either party, pursuant to the discretionary authority granted by Code of Civil Procedure section 1032, subdivision (a)(4).
Undesignated statutory references are to the Code of Civil Procedure.
I. WAIVER OF COURT FEES
In December 2019, when Foster initiated this lawsuit, he filed a request to waive court fees on mandatory Judicial Council form FW-001. The superior court issued an order on court fee waiver on mandatory Judicial Council form FW-003 that denied the request on the ground Foster was not eligible for a waiver of court fees under Government Code section 68635 because he was a person serving a sentence in state prison. On February 1, 2021, over 13 months after the order denying the request, the superior court received Foster's request for a hearing. On February 3, 2021, the court issued a notice on hearing about court fees on mandatory Judicial Council form FW-007 that stated Foster's request for a hearing was denied. The court explained the denial by stating its order was consistent with Government Code section 68635, which requires inmates to pay their filing fees.
Less than two weeks later, Foster filed a notice of appeal from the order entered on February 3, 2021. This court designated the appeal case No. F082412 and sent Foster a letter stating it was considering dismissing the appeal as taken from a nonappealable order. The letter also stated that Foster's failure to respond within 30 days would be deemed an abandonment of the appeal. Foster did not respond and on April 14, 2021, this court entered an order dismissing the appeal as abandoned.
In the present appeal, Foster challenges the ruling on his petition for writ of mandate, but does not contend that the superior court misapplied the provisions of the Government Code relating to the waiver of court fees and costs. (See Gov. Code, §§ 68630-68641.) Accordingly, we do not consider and decide that issue. (See Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852 [under presumption that a lower court's order is correct, appellant who does not raise a point fails to carry burden of demonstrating trial court error on that point and appellate court may treat the point as waived].) Instead, we address the points raised in Foster's opening brief. (See Cal. Rules of Court, rule 8.204(a)(1)(B) [brief must state each point under a separate heading or subheading].)
II. PREVAILING PARTY AND RECOVERY OF COSTS
Foster's opening brief contends he is a "prevailing party" because he was successful on a significant issue and achieved a benefit he sought in bringing the lawsuit. Foster asserts he prevailed because the October 2021 ruling on his writ petition was in his favor-that is, it required Sherman to process his grievance. Foster asserts (1) the superior court abused its discretion when it refused to vacate the $435 filing fee imposed, (2) he was entitled to the full recovery of the fees deducted from his prison trust account, and (3) the warden should have been directed to vacate the filing fee and refund all deductions by returning them to his trust account. Foster invokes the due process clause and California Rules of Court, rule 8.276(d).
A. Rules of Court
California Rules of Court, rule 8.276(d) addresses the filing of an opposition to a motion for sanctions in the appellate court. Foster's citation to this rule appears to be a typographical error and we infer he meant California Rules of Court, rule 8.278(d), which refers to recoverable costs. Regardless of which rule he meant, neither rule applies to Foster's situation because rules 8.276 and 8.278 apply to appellate courts, not superior courts. Furthermore, if we interpret Foster's brief as invoking rule 3.1700, that rule does not support Foster's claim because it sets forth procedures for claiming and contesting prejudgment costs at the superior court level; it does not define when a party is entitled to recover those costs.
All references to rules are to the California Rules of Court.
Accordingly, Foster's citation to the California Rules of Court does not provide a "citation of authority" supporting his claim of superior court error. (Rule 8.204(a)(1)(B); see Denham v. Superior Court (1970) 2 Cal.3d 557, 564 [appellant has the burden on appeal of affirmatively demonstrating prejudicial error].)
B. Due Process Right to Recover Costs
Foster's opening brief contends the trial court abused its discretion in violation of his right to due process when it refused to vacate the $435 filing fee and refund to his prison trust account the amount deducted to pay that fee.
At common law, parties to litigation were required to bear their own costs. We have located, and Foster has cited, no authority stating that the due process clause in the United States Constitution or the California Constitution changed the common law. Furthermore, the California Supreme Court has recognized that the right to recover the costs of litigation is determined entirely by statute. (Davis v. KGO-T.V., Inc. (1998) 17 Cal.4th 436, 439, superseded by statute on other grounds in Anthony v. City of Los Angeles (2008) 166 Cal.App.4th 1011, 1017.)" 'It is axiomatic that the right to recover costs is purely statutory, and, in the absence of an authorizing statute, no costs can be recovered by either party.'" (Ibid.)
Based on this authority, we conclude the federal and state due process clauses do not create a right to recover the costs of litigation. As a result, the trial court's failure to award costs or vacate Foster's filing fee did not violate due process.
C. Statutory Entitlement to Costs
This court's August 5, 2022 briefing order stated that a civil litigant's recovery of costs incurred before the entry of judgment is addressed in the Code of Civil Procedure and quoted provisions in section 1032. Our order stated Foster "should address whether he qualifies as a prevailing party under the second sentence or prong of subdivision (a)(4) of section 1032 and, if so, whether the trial court abused its discretion in not allowing him costs."
1. Statutory Text
Subdivision (b) of section 1032 states: "Except as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding." (Italics added.) Consequently, whether Foster is a "prevailing party" is important to determining whether he is entitled to recover his costs.
The term "prevailing party" is defined in subdivision (a)(4) of section 1032. The first sentence or prong of that provision states:
" 'Prevailing party' includes the party with a net monetary recovery, a defendant in whose favor a dismissal is entered, a defendant where neither plaintiff nor defendant obtains any relief, and a defendant as against those plaintiffs who do not recover any relief against that defendant." (§ 1032, subd. (a)(4).) This sentence identifies four categories of litigants and does not give the superior court any discretion to deny them prevailing party status. (Michell v. Olick (1996) 49 Cal.App.4th 1194, 1197.) In other words, litigants who fall within one of the four categories must to deemed prevailing parties and are entitled to recover costs as a matter of right under subdivision (b) of section 1032.
The second sentence or prong of subdivision (a)(4) of section 1032 states:
"If any party recovers other than monetary relief and in situations other than as specified, the 'prevailing party' shall be as determined by the court, and under those circumstances, the court, in its discretion, may allow costs or not and, if allowed, may apportion costs between the parties on the same or adverse sides pursuant to rules adopted under Section 1034." (Italics added.)
The second sentence or prong of subdivision (b) of section 1032 "requires the trial court to determine which party is prevailing and then exercise its discretion in awarding costs." (Texas Commerce Bank v. Garamendi (1994) 28 Cal.App.4th 1234, 1249.) Thus, the second sentence does not require the superior court to award costs to the prevailing party as a matter of right. (Ibid.) Stated another way, even where litigants with a nonmonetary recovery are "without question the prevailing parties," the superior court may order each side to pay its own costs. (Ibid.)
2. Application of Statutory Text
Here, Foster did not achieve a "net monetary recovery" and, therefore, does not qualify as a prevailing party under the first prong of subdivision (a)(4) of section 1032. As a result, he is not "entitled as a matter of right to recover costs." (§ 1032, subd. (b).)
Foster's recovery of costs is governed by the second sentence of subdivision (a)(4) of section 1032 because he is a party who obtained relief other than a monetary recovery. That provision "calls for the trial court to exercise its discretion both in determining the prevailing party and in allowing, denying, or apportioning costs. It operates as an express statutory exception to the general rule that a prevailing party is entitled to costs as a matter of right." (Wakefield v. Bohlin (2006) 145 Cal.App.4th 963, 977, disapproved on another ground by Goodman v. Lozano (2010) 47 Cal.4th 1327, 1338.) Consequently, we conclude the superior court had (1) the discretion to determine who was the prevailing party and (2) the discretion to "allow costs or not." (§ 1032, subd. (a)(4).)
It follows that for Foster to establish reversible error, he must demonstrate that (1) he qualifies as a prevailing party under the second sentence or prong of subdivision (a)(4) of section 1032 and (2) the trial court abused its discretion in not allowing him costs. (See Friends of Spring Street v. Nevada City (2019) 33 Cal.App.5th 1092, 1104; Wakefield v. Bohlin, supra, 145 Cal.App.4th at p. 977.)
First, we assume for purposes of this appeal that the superior court impliedly determined Foster was the prevailing party because he achieved the primary objective of his writ petition-namely, he obtained an order directing Sherman to process his grievance in accordance with applicable regulations. (See Friends of Spring Street v. Nevada City, supra, 33 Cal.App.5th at p. 1104 [in determining the prevailing party, the court compares the relief sought with that obtained and decides whether the party succeeded at a practical level by realizing its litigation objectives and whether the action yielded the primary relief sought]; e.g., Villa De Las Palmas Homeowners Assn. v. Terifaj (2004) 33 Cal.4th 73, 94 [where homeowners association won declaratory and injunctive relief, "the trial court did not abuse its discretion in determining that the Association was the prevailing party"].)
Second, we consider whether the superior court abused its discretion in not allowing Foster to recover his prejudgment costs. In light of the principle that a court may deny costs to a party who has unquestionably prevailed in obtaining nonmonetary relief, we cannot conclude the superior court acted in a manner that exceeded the bounds of reasons. (See Continental Baking Co. v. Katz (1968) 68 Cal.2d 512, 527 [discretion is abused in the legal sense when the superior court exceeds the bounds of reason].) Foster's reply brief simply contends he is a prevailing party and is entitled to recover his costs; it does not present an argument as to why the superior court's decision not to allow costs exceeded the bounds of reason. Accordingly, we conclude the superior court did not commit reversible error when it decided not to award Foster his costs and did not direct Sherman to return fees deducted from Foster's prison trust account.
We note the disposition in Foster v. Sexton (Sept. 25, 2019, F078480), an unpublished opinion arising from Kings County Superior Court case No. 18C-0031, which Foster mentioned during oral argument, is not binding precedent in this appeal. (See rule 8.1115(a) [opinion not certified for publication "must not be ... relied on by a court or a party in any other action"].)
Lastly, we reject the argument Foster raised in his reply brief that he is entitled to recover fair and just compensation for the money and time properly expended in pursuit of his administrative grievance in the face of oppression, violation of his
First Amendment rights, and unlawful retaliation. This new claim has many defects. First, Foster has not shown that he requested such compensation below. Second, such compensation is not among the remedies that can be awarded with the grant of a petition for writ of mandate. Third, Foster has not cited to anything in the record showing that he requested such compensation in a government claim that complied with the Government Claims Act (Gov. Code, § 810 et seq.) or, alternatively, such a claim is not subject to the act. (See Watson v. State of California (1993) 21 Cal.App.4th 836, 843, 846 [inmate's claim for damages rejected because he failed to comply with the claim presentation requirements].)
DISPOSITION
The October 26, 2021 ruling on the petition for writ of mandate is affirmed. The parties shall bear their own costs on appeal. (Rule 8.278(a)(5).)
[*] Before Poochigian, Acting P. J., Detjen, J. and DeSantos, J.