Opinion
A161181
01-28-2022
RONALD HOGAN, et al., Plaintiffs and Appellants, v. DEANGELIS CONSTRUCTION, INC., et al., Defendants and Respondents.
NOT TO BE PUBLISHED
Sonoma County Super. Ct. No. SCV 257566
MILLER, J.
Plaintiffs Ronald and Victoria Hogan (the Hogans) appeal from an order denying their motion to tax costs on appeal claimed by defendants DeAngelis Construction, Inc., Marvin DeAngelis, Gary Pope, and DeAngelis-Pope Homes (the Developers). We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In 2002, the Hogans sued the Developers, "asserting claims related to the Hogans' purchase of a home [(the Gardenview property)] in 2000." (Hogan, et al. v. DeAngelis Construction, Inc., et al. (Aug. 30, 2019, A152771) [nonpub. opn.] (DeAngelis).) (We refer to this civil action filed in 2002 as the original lawsuit.) After litigating the original lawsuit for many years, the Hogans filed the present lawsuit against the Developers in 2015. (Ibid.) The Developers filed a demurrer, the trial court sustained the demurrer without 1 leave to amend, the Hogans appealed, and we affirmed the judgment in DeAngelis, supra.
The Developers then filed a memorandum of costs on appeal with the trial court for $886.40. The Hogans filed a motion to strike and/or tax the costs. They argued all the costs should be struck because the Developers "agreed to pay all costs and fees" when the Developers accepted rescission of the purchase contract for the Gardenview property in connection with the original lawsuit.
The trial court denied the motion in its entirety. The court found that the Developers were the prevailing parties in the appeal and that the costs they requested appeared to be "proper on their face" and were "expressly permitted by statute." The court explained that the burden, therefore, shifted to the Hogans to show the costs were unreasonable in amount or not reasonably necessary, but the Hogans failed to meet their burden and "failed to present any admissible evidence to show that any of Defendants' costs, including the costs to file a response to Plaintiffs' petition for review to the Supreme Court, are not allowable 'filing fees.'" The court also found the Hogans failed "to demonstrate that all costs were included in the Court's ruling on rescission."
DISCUSSION
When the Court of Appeal affirms a judgment without modification, the respondent is the prevailing party. (Cal. Rules of Court, rule 8.278(a)(2).)Thus, the Developers are the prevailing parties in the Hogans' appeal decided by DeAngelis, supra (A152771) and are "entitled to costs on appeal." (Rule 8.278(a)(1).) 2
Further references to rules are to the California Rules of Court.
Where" 'the items appear to be proper charges, the verified memorandum [of costs] is prima facie evidence that the costs, expenses and services therein listed were necessarily incurred by the defendant [citations], and the burden of showing that an item is not properly chargeable or is unreasonable is upon the [objecting party].'" (Nelson v. Anderson (1999) 72 Cal.App.4th 111, 131.) Generally, we review a trial court's award of costs for abuse of discretion. (Goodman v. Lozano (2010) 47 Cal.4th 1327, 1332.)
Here, the costs on appeal the Developers claimed for filings fees, printing and copying briefs, transmitting filing, and serving papers, and postage are allowable costs. (Rule 8.278(d)(1)(A)-(E).) In denying the motion to tax costs, the trial court implicitly found the costs were not unnecessary or unreasonable. We see no abuse of discretion, and the Hogans fail to convince us otherwise.
The Hogans claim the trial court had no authority to allow costs for the fee the Developers claimed for filing an optional answer to the Hogans' petition for review with the California Supreme Court. But, as the Developers point out, rule 8.278 contemplates that costs associated with "any petition for rehearing or review, answer, or reply" are recoverable. (Rule 8.278(d)(1)(E) [recoverable costs include cost to print and reproduce any brief, including "any" petition for review or answer]; see Lubetzky v. Friedman (1991) 228 Cal.App.3d 35, 41 [affirming award of costs for preparing answer briefs to a petition for review].) Given that costs associated with preparing an answer to a petition for review are recoverable and "[f]iling fees" are recoverable with no requirement that the filing be mandatory (rule 8.278(d)(1)(A), (E)), we conclude it was within the trial court's authority to 3 award costs for the filing fee the Developers paid when they filed an answer to the Hogan's petition for review with the California Supreme Court.
The Hogans also argue there was no prevailing party in the California Supreme Court, but where a judgment in favor of the respondent is affirmed on appeal and the appellant's petition for review is denied, the result is an affirmed judgment, and we think it is safe to say the respondent in such a case is the prevailing party for purposes of awarding costs on appeal. (See rule 8.278(a)(2) [the respondent is the prevailing party where the appellate court "affirms the judgment without modification"].)
Next, the Hogans claim the Developers cannot recover costs on appeal because they agreed to pay "all costs and fees incurred as a result of the [Hogans'] purchase" of the Gardenview property when they accepted rescission of the purchase contract. This claim is meritless on its face. The award of costs on appeal in this case was not incurred "as a result of" the Hogans' purchase of the Gardenview property in 2000. Rather, the Developers are entitled to their costs on appeal because the Hogans pursued an unsuccessful appeal.
Moreover, the Developers are correct that this claim is precluded under principles of res judicata and law of the case. The Hogans "already had a jury trial that determined consequential damages arising from the rescission of the Gardenview property purchase agreement" in the original lawsuit. 4 (DeAngelis, supra.) In Hogan v. DeAngelis Construction, Inc. (May 17, 2018, A146057, A146582, A147273) [nonpub. opn.], this court held the judgment in the original lawsuit "was 'satisfied in fact' as a matter of law." Consequently, the Hogans may not claim any right against the Developers based on the rescission of the purchase contract for the Gardenview property because the judgment encompassing that issue has been fully satisfied. This disposes of the arguments the Hogans make under the headings "Issue 2" and "Issue 3" in their opening brief.
"Under the doctrine of res judicata, if a plaintiff prevails in an action, the cause is merged into the judgment and may not be asserted in a subsequent lawsuit; a judgment for the defendant serves as a bar to further litigation of the same cause of action." (Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 896-897.) "Where an appellate court states in its opinion a principle or rule of law necessary to its decision, that principle or rule becomes the law of the case" and "must be adhered to both in the lower court and upon subsequent appeal." (Santa Clarita Organization for Planning the Environment v. County of Los Angeles (2007) 157 Cal.App.4th 149, 156.)
We may cite our prior unpublished opinion "to explain the factual background of the [current] case" (K.G. v. Meredith (2012) 204 Cal.App.4th 164, 172, fn. 9), and we may rely on it because the opinion is relevant under the doctrine of res judicata (rule 8.1115(b)(1)).
Finally, the Hogans argue the costs order does not apply to Victoria Hogan because "she was not in privity with [the Developers] and [was] not the buyer of the real property." Whether Victoria was one of the parties to the purchase contract for the Gardenview property is irrelevant. The trial court ordered her to pay the Developers' costs on appeal because she was a party in the appeal in which the Developers prevailed, not because of her status in relation to the Gardenview property.
DISPOSITION
The order denying the Hogans' motion to tax costs is affirmed. 5
WE CONCUR: Stewart, Acting, P.J. Kline, J. [*] 6
[*] Assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.