Opinion
B322716
07-27-2023
DAVID MAX, Plaintiff and Appellant, v. GEORGE SHIH et al., Defendants and Respondents
Rogari Law Firm and Ralph Rogari for Plaintiff and Appellant. Holland & Knight, Benjamin P. Pugh, David A. Robinson and Andrew M. Cummings for Defendants and Respondents.
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Los Angeles County, Super. Ct. No. BC645117 William F. Fahey, Judge.
Rogari Law Firm and Ralph Rogari for Plaintiff and Appellant.
Holland & Knight, Benjamin P. Pugh, David A. Robinson and Andrew M. Cummings for Defendants and Respondents.
ROTHSCHILD, P. J.
In a lawsuit brought by appellant David Max, the trial court entered judgment in favor of respondents George Shih, Frank Wood, Mahendra Vora, Rod Miller, and Vora Ventures LLC. In July 2019, respondents filed a timely cost memorandum as "prevailing part[ies]" under Code of Civil Procedure section 1032 and section 1033.5. Max filed a motion to strike or tax costs, but the court concluded Max's motion was inadequate, and took the motion off calendar. Max did not object to the court's order, and never attempted to modify the motion, renew it, or asked that it be put back on calendar. In a 2020 appeal, we affirmed the judgment in favor of respondents and awarded them their costs on appeal. Thereafter, respondents moved the trial court to amend the judgment to include both the section 1032 costs respondents had previously sought and costs incurred as a result of the 2020 appeal. In response, the court issued a June 2022 amended judgment, which awarded respondents all the costs they requested. Now Max challenges that amended judgment insofar as it awarded respondents any costs. Specifically, Max argues that the court lacked jurisdiction to amend the original judgment to add costs, and that, even if the court had jurisdiction, the costs were not recoverable. We disagree and affirm.
Unless otherwise indicated, all statutory references are to the Code of Civil Procedure.
FACTS AND PROCEEDINGS BELOW
The parties have been involved in three separate but related lawsuits. The instant appeal involves only one of these lawsuits: Los Angeles Superior Court case No. BC645117, in which Max sued respondents and 8e6 Corp. (not a party to this appeal), an entity of which the individual respondents were officers and/or directors, for breach of fiduciary duty. In 2018, Max voluntarily dismissed 8e6 Corp. from the suit. 8e6 Corp. filed a cost memorandum and recovered some of its costs. Max does not now challenge that award of costs.
The other two lawsuits post-date the instant lawsuit. They are: (1) Max's 2019 lawsuit, Los Angeles Superior Court case No. 19STCV11560, against respondents and 8e6 Corp. for breach of fiduciary duty and fraud, which Max brought after he attempted unsuccessfully to amend his complaint in the instant matter to allege these claims; and (2) Respondents' lawsuit against Max, Los Angeles Superior Court case No. 19STCV30623, alleging Max maliciously prosecuted his 2019 lawsuit against them. The former is still pending, and respondents have dismissed the latter.
Respondents first appeared in the action only after 8e6 Corp. had been dismissed. Respondents successfully moved for summary judgment and, on June 27, 2019, the court entered judgment in respondents' favor on all claims. The judgment provided that respondents "may seek costs pursuant to the . . . Code of Civil Procedure and the California Rules of Court." Max appealed the judgment, which we affirmed in appeal No. B301010. We also awarded respondents their costs in that appeal.
While that appeal was pending, respondents timely filed a memorandum of trial costs for $13,333.83. Max moved to strike or tax the costs, contending that (1) the memorandum was defective because it was jointly filed, (2) respondents had not incurred any costs because, as they admitted at deposition, 8e6 Corp. had actually paid their costs, and (3) each category of costs sought was neither statutorily authorized nor reasonably necessary to the litigation. On February 5, 2020, the court determined Max's motion was not sufficient and, therefore, placed Max's motion off calendar. Max neither objected to the court taking his motion off calendar, nor attempted to remedy the defects noted by the court, nor renewed the motion, nor requested that the matter be put back on calendar.
In March 2021, after the remittitur issued in Max's appeal from the June 2019 judgment (appeal No. B301010), respondents filed with the trial court a memorandum of costs seeking $452.20 in costs incurred in that appeal. The court took no action in response to the memorandum. Nor did Max. On November 30, 2021, respondents submitted a proposed amended judgment to the court, which included an award of the costs reflected in both of respondents' cost memoranda; $13,333.83 in trial court costs and $452.20 in appellate costs. Max objected to the proposed judgment. The court rejected the proposed amended judgment, but invited respondents to "file a properly noticed motion." Respondents did so, seeking the same costs as they had in their November 30, 2021 filing. Max opposed the motion arguing, inter alia, that the court lacked jurisdiction to add costs to the judgment at that point. Max did not argue the costs from appeal No. B301010 should have been included in a separate judgment. On June 1, 2022, the court granted the motion and issued a final amended judgment awarding respondents all the costs they requested, totaling $13,788.03. Max timely appealed from that amended judgment.
DISCUSSION
Max argues that the court lacked fundamental jurisdiction to add costs to the original judgment years after it had become final. The facts relevant to this issue are undisputed, and our review is de novo. (City of Long Beach v. Stevedoring Services of America (2007) 157 Cal.App.4th 672, 678 ["[w]here, as here, the determination of whether costs should be awarded is an issue of law on undisputed facts, we exercise de novo review"].)
Max cites "[t]he general rule . . . that once a judgment has been entered, the trial court loses its unrestricted power to change that judgment[,]" with certain limited exceptions. (Craven v. Crout (1985) 163 Cal.App.3d 779, 782.) He acknowledges that one such exception, codified in section 473, subdivision (d), permits a court to amend a final judgment "to correct clerical errors in a judgment which has been entered" at any time. (Craven, supra, at p. 782.) He argues, however, that section 473, subdivision (d) does not apply, because the addition of costs to the 2019 judgment did not merely correct a clerical error, but rather adjudicated an issue not addressed in the original judgment and "amend[ed] [the] judgment to substantially modify it or materially alter the rights of the parties." (Craven, supra, at p. 782.)
Max's argument misunderstands the ministerial nature of the court and clerk's duty to award section 1032 costs to prevailing parties in the absence of a successful motion to strike or tax costs. "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." (§ 1032, subd. (b); see also § 1033.5 [describing types of costs recoverable].) "A prevailing party who claims costs must serve and file a memorandum of costs within" a specified timeframe. (Cal. Rules of Court, rule 3.1700(a)(1).) A motion to tax or to strike costs is the mechanism for challenging the costs claimed in a cost memorandum, and such motion must be served and filed 15 days after service of the cost memorandum. (Id., rule 3.1700(b)(1).) Crucially, "[a]fter the time has passed for a motion to strike or tax costs or for determination of that motion, the clerk must immediately enter the costs on the judgment." (Id., rule 3.1700(b)(4), italics added.) Thus, after a party waives its objections to a cost memorandum by failing to file a timely motion to tax-or, as occurred here, by failing to seek relief when the court took Max's motion to tax costs off calendar without adjudicating it-the trial court is not called upon to adjudicate any issue related to costs. Rather, at that point, "[t]he allowance of costs to the statutorily entitled party is a clerical act" (Hydratec, Inc. v. Sun Valley 260 Orchard &Vineyard Co. (1990) 223 Cal.App.3d 924, 928 (Hydratec)), and the court and clerk have a ministerial duty to "immediately" enter the claimed costs on the judgment. (Cal. Rules of Court, rule 3.1700(b)(4); Miles California Co. v. Hawkins (1959) 175 Cal.App.2d 162, 165 (Miles) [because "the clerk has the duty to include the costs, his act in doing so, or the act of the judge, if the clerk does not do so, in including costs is a ministerial matter"].)
Therefore, when the court added a costs award to the judgment reflecting the costs respondents had listed in their cost memoranda, the court neither adjudicated the cost issue, nor changed the parties' rights and obligations, as Max suggests. Rather, this addition merely corrected the clerk's and court's failures to include in the judgment costs to which respondents, under California Rules of Court, rule 3.1700(b)(4), had a right by operation of law "as an incident of the judgment given upon the issues in the action the moment of its rendition, 'accruing only upon verified claim therefor.'" (Miles, supra, 175 Cal.App.2d at p. 164; see Williams v. Santa Maria Joint Union High School District (1967) 252 Cal.App.2d 1010, 1014 ["failure to provide for mandatory costs [is] a clerical error" because party seeking mandatory costs is "entitled to [those] costs . . . by virtue of the judgment in its favor"].)
"[T]he trial court was [thus] authorized to correct the judgment[ ] to reflect the statutory command [to award section 1320 costs], in the same manner it was empowered to remedy any other clerical error in the judgments (. . . § 473[, subd. (d)])." (Hydratec, supra, 223 Cal.App.3d at p. 928; see ibid. ["[t]he statutory right to costs is not lost by virtue of the court's neglect or error. Such neglect or error may be corrected by the trial court"].) The court did not lack fundamental jurisdiction to add to the 2019 judgment the costs requested in respondents' effectively unchallenged cost memorandum, even years after that judgment had become final. (See Miles, supra, 175 Cal.App.2d at p. 165 ["the failure of either [the court or clerk] to perform th[e] ministerial statutory duty [of awarding mandatory costs] can be corrected . . . though the judgment is final upon entry"].)
To the extent Max is arguing that section 1032 and California Rules of Court, rule 3.1700(b)(4) cannot trigger the ministerial duty set forth above because section 1032 does not apply-that is, because section 1032 does not authorize respondents to recover any costs or to recover the specific costs itemized in their trial cost memorandum-Max did not sufficiently preserve these arguments for appeal, because he failed to renew his motion to strike or tax costs when the court took it off calendar without deciding it. The trial court thus had no opportunity to consider these issues, and Max has forfeited any such arguments. (Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184, fn. 1 (Doers); Cushman v. Cushman (1960) 178 Cal.App.2d 492, 498 (Cushman) ["[a]ppellant is bound by the well-established principles on appeal that one will not be heard to urge error which he is estopped to raise, or which he has waived, by failure to make proper objection, by conduct, by stipulation, or otherwise, in the lower court [citations]; and that one must abide by the consequences of his own acts and cannot seek relief on appeal for errors he committed or invited or by his conduct induced, in the trial court [citation]; and that one cannot on appeal complain of rulings assented to or acquiesced in by him in the court below"].)
In any event, the requirements for triggering the court and clerk's ministerial duty to award section 1032 costs are easily satisfied on the current record. These requirements are: (1) A proper and timely cost memorandum, (2) filed by a prevailing party or prevailing parties, and (3) that there either have been no motion to strike or tax costs or the time for filing and adjudicating such a motion have expired.
Max characterized respondents' cost memorandum as improper, because respondents jointly filed a single memorandum that did not itemize how much of the costs were paid by each individual respondent. But prevailing parties may file a joint memorandum of costs when, as respondents did here, those parties shared trial counsel and costs. (See Jonkey v. Carignan Construction Co. (2006) 139 Cal.App.4th 20, 26.) Max also cites authority holding that a joint memorandum may be improper if not all parties making such a joint filing are prevailing parties. (See Charton v. Harkey (2016) 247 Cal.App.4th 730, 743-744.) Here, however, they were. Section 1032 defines a" '[p]revailing party'" as "includ[ing] . . . 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. 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." (§ 1032, subd. (a)(4).) Respondents are all "defendant[s] in whose favor a dismissal [was] entered," and no party recovered "other than monetary relief" in this action. (Ibid.) And Max's argument that 8e6 Corp. was not a prevailing party is beside the point, because 8e6 Corp. was not one of the parties seeking costs via the joint cost memorandum.Finally, as noted, the time for adjudicating a motion to strike or tax costs passed without Max seeking to put his motion back on calendar or the court granting Max's motion in any respect.
As noted, the court did award 8e6 Corp. its costs after 8e6 Corp.'s dismissal from the suit, something Max does not challenge on appeal. And in any event, 8e6 Corp. was a prevailing party in this litigation, because it was "a defendant in whose favor a dismissal [was] entered." (§ 1032, subd. (a)(4).)" 'This is true where the plaintiff voluntarily dismisses [and] where the trial court orders an involuntary dismissal . . . [citations]' [citation] . . . regardless of whether the dismissal is with or without prejudice." (Cano v. Glover (2006) 143 Cal.App.4th 326, 331.)
The record thus supports that respondents were entitled to costs under section 1032, meaning the court had a ministerial duty to award these costs, and the court did not lack the authority to add such costs to the judgment at the time it did. (See § 473, subd. (d).)
Max further argues that, even assuming section 1032 entitles respondents to some trial costs and that the court had jurisdiction to add a cost award to the judgment in 2022, the cost statutes do not authorize the specific costs awarded because (1) they are not apportioned as between the various respondents, (2) 8e6 Corp., not respondents, paid the costs respondents identified, and (3) the deposition costs respondents claimed were not reasonable. He also challenges inclusion of the costs incurred in connection with appeal No. B301010, arguing they should have been awarded in a separate judgment. Max waived the first three of these arguments, because Max failed to object or take any other action in response to the court taking off calendar his motion challenging the trial cost memorandum on these same bases. (Doers, supra, 23 Cal.3d at p. 184, fn. 1; Cushman, supra, 178 Cal.App.2d at p. 498.) And Max forfeited his argument that the court should have awarded appellate costs in a separate judgment, because he failed to raise that issue at any point before the trial court. (See Doers, supra, at p. 184, fn. 1.)
Accordingly, Max has identified no basis for reversing any aspect of the cost award.
DISPOSITION
The judgment is affirmed. Respondents are awarded their costs on appeal.
WE CONCUR: CHANEY, J. BENDIX, J.