Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. RG03125579
RIVERA, J.
This is the third appeal filed by petitioner and appellant John Hsu arising out of disputes with respondents, California Department of Personnel Administration (DPA) and California Department of Toxic Substances Control (DTSC). In this appeal, Hsu contends the trial court erred in determining that DTSC was the prevailing party, and argues that payment of his costs should be apportioned between DPA and DTSC. We dismiss the appeal against DPA and affirm the judgment.
i. Factual and Procedural Background
In 2002 and 2003, Hsu was working for the State of California in the Hazardous Materials Laboratory of DTSC. In January 2003, Hsu received a performance appraisal which he considered to be “unfair and inaccurate,” so he filed administrative appeals with DPA. Apparently, the decision on those appeals was adverse to Hsu, who then filed a request for reconsideration. Hsu was also pursuing litigation against respondents in three separate legal actions.
In August 2003, DTSC and Hsu entered into a global settlement of the three lawsuits, and DPA apparently joined the settlement in September 2003. The settlement contained a number of terms. As relevant here it provided that Hsu would dismiss the actions and release all claims arising out of events occurring prior to August 25, 2003; DTSC, for its part, would remove “all negative performance appraisals and probation reports... from [Hsu’s] personnel file[,]” would place them in a “sealed confidential file to be retained by the legal counsel’s office[,]” and would use them only in the event of litigation or as a basis for corrective or adverse action “to establish prior notice.”
In October 2003 (one month after DPA joined the settlement), DPA issued its decision on Hsu’s request for reconsideration of his administrative appeal. In this “Order upon Reconsideration,” DPA affirmed its July 2003 decision adverse to Hsu regarding his January 2003 performance appraisal. Hsu then sent a letter to counsel for DPA asking whether DPA had failed to consider the settlement reached in August 2003. He asked whether DPA would “now wish to withdraw its... ‘Order upon Reconsideration,’ ” and if not, Hsu stated, he would “need to request a judicial review” of that order. It appears that Hsu also informed DTSC of his intention to file a petition for writ of mandate, and DTSC responded that it believed such a filing would violate the settlement agreement, because the subject of the proposed action arises out of a matter encompassed in Hsu’s release of claims. DTSC also stated it had “no interest in contacting [ ] DPA” regarding its order, because it considered Hsu’s “appeal of the performance appraisal finally resolved.” In response, Hsu expressed puzzlement that DPA would issue an order when the underlying administrative proceedings had been rendered moot by the settlement.
In November 2003, Hsu filed a petition for writ of mandate, requesting that the court: (1) determine whether DPA was entitled to issue its order upon reconsideration, pursuant to the terms of the settlement; (2) determine the validity of a particular DPA rule as it relates to its implementing statute; and (3) overturn DPA’s administrative decisions on the ground DPA “failed to grant [Hsu] a fair trial.” Hsu’s petition was denied by the trial court, following demurrers by respondents, and Hsu appealed.
We reversed the trial court’s decision only with respect to the first claim for relief, concluding that it could not be determined based on the pleadings alone whether DPA’s issuance of the order upon reconsideration violated the settlement agreement. As to the other claims, we affirmed the sustaining of the demurrers on the ground those claims were barred by the settlement agreement. After our opinion was filed, the remittitur issued, awarding costs to Hsu.
Following issuance of the remittitur, Hsu filed a memorandum of costs on appeal, naming only DPA as a respondent, and seeking payment of $1,378.36 in costs. No motion to tax costs was filed.
After the trial court received the remittitur, it entered a new order on DTSC’s demurrer, in conformance with our opinion, and ordered DTSC to file an answer with respect to the single remaining claim. In the meantime, however, and in response to the decision on appeal, DPA had issued an order vacating and withdrawing the contested order upon reconsideration. Accordingly, in its answer, DTSC included an affirmative defense alleging that the petition had been rendered moot by DPA’s action vacating the order upon reconsideration.
The record does not contain any similar order for DPA, apparently due to an oversight by the trial judge.
It appears Hsu thereafter filed a motion for judgment on the pleadings, which was denied. The court then issued an order to show cause why the petition should not be set for hearing.
The show cause order was later dropped as “moot” and the matter was continued for “Status Report and further setting.” At the hearing on the “Motion for Status and Further Setting” the court found that Hsu’s petition was moot “because the only claim remaining... after Remittitur is the one based on DPA’s October 8, 2003 ‘Order upon reconsideration,’ and it is undisputed that DPA’s October 8 Order has been vacated.” The court ordered Hsu to file and set a noticed motion for entitlement of costs with appropriate supporting documentation.
According to Hsu, because he was involved in “several other litigations,” he was unable to file his motion for costs until more than a year later. In the motion, he argued he was the prevailing party, and entitled to costs from DTSC and DPA, because his petition caused DPA to vacate and withdraw its Order upon Reconsideration. Hsu requested $3,786.51 in trial court costs. In reply to DPA’s opposition, Hsu submitted a separate memorandum of costs increasing his request to $3,811.51.
Hsu’s motion was denied without prejudice due to procedural deficiencies. Hsu then filed a motion “to determine prevailing party, to issue judgment, and to determine cost[s].” Hsu argued that the court should declare him to be the prevailing party as against both DPA and DTSC, because his litigation “effected the desired result for DPA to vacate its 10/8/03 ‘Order upon Reconsideration,’ ” and because DTSC has been “aligned in interest with DPA, harassing Hsu, making frivolous arguments without pertinent legal authorities in support, causing unnecessary delay and needless increase in the cost of litigation.” Hsu, however, neither provided nor cited to any evidence in support of these claims.
In opposition, DTSC pointed out that Hsu’s petition as against DTSC was unsuccessful because, on appeal, the only claim found to be potentially viable was the claim arising out of DPA’s issuance of the order on reconsideration in October 2003. Because DTSC “bears no responsibility for DPA’s actions,” it argued, DTSC was the prevailing party.
DPA also opposed Hsu’s motion, arguing that many of Hsu’s filings were unnecessary and duplicative. More specifically, DPA challenged the largest cost item—preparation of the administrative record—arguing that because all of Hsu’s challenges to the administrative proceedings were barred by the settlement agreement, “there [was] no showing that the administrative record was ever used by Hsu in order to facilitate judicial review,” so those costs were not reasonably and necessarily incurred.
This argument was a curious one in light of the insistence of respondents’ counsel in 2006 that no proceedings on the petition could go forward until Hsu had provided to the court and counsel the entire administrative record.
The trial court denied Hsu’s motion, describing it as “entirely frivolous.” The court did agree, however, to prepare and sign a judgment “modeled after the judgment prepared by [Hsu].” The court stated its intention to determine the prevailing party issues in the judgment.
The court then prepared and filed a judgment in favor of Hsu against DPA, and in favor of DTSC against Hsu. On August 23, 2007, Hsu served and filed a notice of entry of judgment, together with the previously filed memorandum of costs on appeal, and a new memorandum of costs for the costs incurred in the trial court in the amount of $4,001.51. DPA filed a motion to tax costs, which Hsu opposed. The court’s tentative ruling stated that the court was “unwilling to determine the prevailing party” because “the results of [Hsu’s] petition were mixed.” Ultimately, however, the court denied DPA’s motion and Hsu was found to be the prevailing party.
Hsu filed and served a notice of entry of the court’s order, together with copies of his two cost memoranda on November 29, 2007. Six months later, in May 2008, DPA issued and delivered to Hsu a check in the amount of $5,568.15, comprised of the trial and appellate court costs plus accrued interest.
In the meantime, in October 2007, Hsu filed a notice of appeal from the August 10, 2007, judgment, naming as respondents both DTSC and DPA.
II. Discussion
A. Appeal against DPA
In order to have a right to appeal a party must be “aggrieved” by the judgment or order from which the appeal is taken. (Code Civ. Proc., §§ 901, 902.) A party is not aggrieved by a judgment in his or her favor. (Gober v. Ralphs Grocery Co. (2006) 137 Cal.App.4th 204, 211.)
The contentions on appeal are difficult to understand and are made the more confusing because, when the opening brief was filed, Hsu still had not received payment of his costs from DPA. In any event, Hsu’s arguments after receiving payment do not show he was aggrieved by the judgment in his favor against DPA.
Hsu asserts there are three questions presented on appeal: “1. Whether the trial court has erred in naming DTSC as a prevailing party; [¶] 2. Whether Hsu should be declared the prevailing party at both the appellate level and the trial level against both DPA and DTSC; [¶] 3. How Hsu’s costs at both the appellate level and the trial level should be apportioned between DPA and DTSC.” Manifestly, the first two issues do not raise any disputed issue as to DPA and the third issue becomes moot once the full amount of costs have been paid. If DPA contended that DTSC should be liable for a portion of the costs, it was DPA’s right to seek an apportionment. DPA did not so contend; consequently it was liable for, and paid, all of Hsu’s costs. Having been made whole, Hsu has no basis for complaining that some of the costs should have been paid by DTSC.
Despite these facts, in his reply Hsu describes DPA’s payment as “problematic” because “1. In the instant appeal, the cost issue has been submitted to the Court of Appeal for determination. The jurisdiction over the issue resides in the Court of Appeal. [¶] 2. Proper apportioning of the costs between DPA and DTSC is a matter within the courts’ discretion. [Citation.] [T]he discretion is not in DPA. [¶] 3. DPA’s payment of costs does not make DTSC a prevailing party. Yet, DTSC might then argue, again, that DTSC is the prevailing party because no court has directed DTSC to pay any cost[s]. [¶] 4. While DPA’s payment was apparently spurred by Hsu’s filing of the second appeal (thus Hsu is the prevailing party pursuant to Belth [v. Garamendi (1991) 232 Cal.App.3d 896]), DPA’s payment gives DPA the opportunity to make a ‘mootness’ argument regarding costs (and apportionment of costs) for the Court of Appeal to dismiss the second appeal with respect to DPA,...” making DPA the prevailing party which would reward DPA for its delay in paying costs.
We acknowledge and understand that Hsu is not an attorney and is representing himself in propria persona. Nevertheless, like all litigants, Hsu is required to present coherent arguments grounded in relevant legal principles. (Mares v. Baughman (2001) 92 Cal.App.4th 672, 679-680.) The contentions we have quoted above lack both characteristics. We need point out only some of the fundamental defects. (1) If Hsu is not an aggrieved party and has no right to appeal, a fortiori, no jurisdiction is vested in the Court of Appeal. (2) The issue of apportionment is moot, as Hsu has acknowledged receipt of the payment of costs, including interest, from DPA. (3) The fact that DTSC has not been ordered to pay costs is not the basis for but the result of the court’s determination of prevailing party. As Hsu himself argues, “[d]etermination of prevailing party is a step that precedes cost determination.” (4) Whether DPA’s tardy payment was ultimately “spurred” by the Hsu’s filing of this appeal is irrelevant because Hsu had no right to file the appeal as against DPA in the first instance. If Hsu wanted payment of the costs without delay, his remedy was to seek enforcement of the court’s order or to pursue collection of the costs ordered to be paid, not to file an appeal from a favorable judgment. We, therefore, reject Hsu’s assertion that he is the prevailing party on this appeal.
Hsu also makes a passing contention that if the trial court’s postremittitur order of July 29, 2005 is interpreted as “permitting” DPA’s breach of the settlement agreement by issuing the October 8, 2003, order upon reconsideration, the trial court “in its 8/10/07 Judgment, in endorsing DPA’s 10/8/03 breach, erred as a matter of law.” This argument is not only incomprehensible but it mischaracterizes the judgment entered by the trial court, which unequivocally enters judgment in favor of Hsu and against DPA.
B. Appeal against DTSC
In contrast to Hsu’s circumstances vis-à-vis DPA, Hsu was—at least theoretically—aggrieved by the judgment entered in favor of DTSC as it might have resulted in Hsu becoming liable for DTSC’s costs. Pursuant to California Rules of Court, rule 3.1700(a), however, a memorandum of costs must be filed within 15 days after the date of service of the written notice of entry of judgment. That time provision, while not jurisdictional, is mandatory. (Sanabria v. Embrey (2001) 92 Cal.App.4th 422, 426.) Hsu served the notice of entry of judgment on August 23, 2007, and since that date no memorandum of costs has been filed by DTSC. Accordingly, DTSC has waived its right to costs. Hsu has not explained how he was otherwise actually aggrieved by the judgment, and therefore has no basis for an appeal. (Code Civ. Proc., § 902; United Investors Life Ins. Co. v. Waddell & Reed, Inc. (2005) 125 Cal.App.4th 1300, 1304 [to be an aggrieved party with standing to appeal, one’s interest must be immediate, pecuniary, and substantial].)
Even assuming an appeal would lie, Hsu has shown no error in the trial court’s decision. Indeed, Hsu’s arguments in support of his appeal are improper, incomprehensible, or without foundation in the record or the law.
Hsu first challenges the trial court’s order after remittitur, in which it sustains in part and overrules in part DTSC’s demurrer, in accordance with our opinion in the first appeal. Hsu contends, on various grounds, that DTSC’s demurrer should not have been partially sustained. This issue, however, is foreclosed, the matter having been finally determined. In the previous appeal, we affirmed the sustaining of a portion of DTSC’s demurrer, which portion the trial court again sustained after receiving the remittitur. This legal issue having been litigated to finality, it cannot be reopened. (Nally v. Grace Community Church (1988) 47 Cal.3d 278, 301.)
Hsu next challenges the court’s order after remittitur on the additional ground that DTSC improperly argued, and the trial court’s order erroneously “suggest[ed],” that Hsu had no right to contest DPA’s order upon reconsideration, and that “DPA was entitled to its breach [of the settlement].” Hsu contends, “[i]f interpreting the [order after remittitur] as permitting the breach, the trial court, in its 8/10/07 Judgment, in endorsing DPA’s... breach, erred as a matter of law.” As noted earlier (see fn. 3, p. 7, ante), this indecipherable contention mischaracterizes the judgment. The judgment contains no language endorsing DPA’s alleged breach of the settlement agreement; rather it unconditionally names Hsu as the prevailing party as against DPA.
Hsu’s third argument is that he is the prevailing party over DTSC because he achieved his desired outcome of DPA vacating the order upon reconsideration, and DTSC “failed to achieve its ultimate goal of upholding DPA’s [Order upon Reconsideration], and is therefore not a prevailing party.” Hsu secondarily contends that the court’s determination that Hsu prevailed against DPA is inconsistent with its finding that DTSC prevailed. Hsu does not cite to any evidence to support his claim that DTSC had as its ultimate goal the upholding of DPA’s order upon reconsideration, and we have found nothing in the record to support this assertion. DTSC’s contention on demurrer was not that the order upon reconsideration should be upheld, but that Hsu’s petition was filed in violation of the terms of the settlement agreement. As to Hsu’s secondary contention, there is no conflict in the court’s prevailing party determinations. It was DPA that issued—and vacated—the order upon reconsideration, not DTSC. There is no evidence—and Hsu does not argue—that DPA was acting at the behest of, or as the agent of DTSC, or that DTSC had the authority to cause the order to be either filed or rescinded. Consequently, there is no basis for Hsu’s contention that DTSC and DPA must be treated the same in the judgment.
Hsu’s next argument is a variation on the previous one, and is equally meritless. He argues that because the trial court’s tentative ruling on DPA’s motion was to declare neither Hsu nor DPA the prevailing party, but in its final ruling it found Hsu to be the prevailing party, Hsu should be declared the prevailing party against DTSC because he achieved the same results against DTSC as he did against DPA. This argument suffers from the same deficit as the previous one, viz., it assumes that DTSC was equally responsible for DPA’s action in issuing and vacating the postsettlement order after reconsideration. There is no evidence to support this assumption.
Hsu briefly contends that the “trial court’s failure to issue the Statement of Decision [on his motion for judgment on the pleadings] timely requested by Hsu... is reversible error per se.” This contention is utterly baseless. Code of Civil Procedure section 632 provides that a court must issue a statement of decision “upon the trial of a question of fact.” A motion for judgment on the pleadings involves no factual issues. (Hospital Council of Northern Cal. v. Superior Court (1973) 30 Cal.App.3d 331, 337-338; see also Lien v. Lucky United Properties Investment, Inc. (2008) 163 Cal.App.4th 620, 623-624 [requirement of written statement of decision generally does not apply to an order on a motion].) Further, there is no evidence that a timely request for statement of decision was ever filed.
Hsu’s final contention is more in the nature of a request. He asks this court to apportion the costs between DPA and DTSC and to set a deadline for payment. Assuming such a request is even authorized by law, it is now moot, Hsu having received payment in full.
In his reply brief, Hsu attempts to introduce additional arguments that DTSC attempted to undermine the settlement agreement, that it “forcefully supported” DPA’s postsettlement order that allegedly breached the settlement agreement, and that it did not enter into the settlement in good faith. In support of these claims Hsu submits a declaration as part of his brief, setting forth facts that are not contained in the record. We reject these contentions as irrelevant and baseless. Not only is it improper to introduce new facts on appeal (Aloha Pacific, Inc. v. California Ins. Guarantee Assn. (2000) 79 Cal.App.4th 297, 307), but the arguments are immaterial to the narrow issue before us, which is whether DTSC was the prevailing party in this action.
Hsu also contends that both DTSC and DPA insisted upon the filing and service of the entire administrative record while at the same time arguing the case was moot, and that this was done for the sole purpose of “harass[ing] Hsu and to cause unnecessary delay and needless increase in the cost of litigation, in violation of Code of Civil Procedure section 128.7.” Even assuming this contention has merit, it is irrelevant to the issues on appeal.
III. Disposition
The appeal against DPA is dismissed as moot. In all other respects, the judgment is affirmed.
We concur: RUVOLO, P.J., REARDON, J .