Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County, Frederick Shaller, Judge, Super. Ct. No. BD373416
Lilavati Sharma, in pro. per., for Plaintiff and Appellant.
No appearance for Defendant and Respondent.
KRIEGLER, J.
Plaintiff and appellant Lilavati Sharma appeals from an order fixing costs on appeal in favor of her former husband defendant and respondent Michael Pardue. Sharma contends: (1) the trial court abused its discretion by awarding costs incurred in connection with an unrelated appeal; (2) Pardue should not have been allowed to recover the cost of photocopying the record on appeal; (3) Pardue’s printing expenses were excessive and unnecessary; (4) Pardue should not have been awarded costs for priority mail, express mail, or messenger fees; and (5) Pardue was not entitled to recover the cost of typing the respondent’s brief. We conclude that costs should not have been awarded based on charges incurred in connection with another appeal, but otherwise, the costs awarded were within the trial court’s discretion. We modify the order awarding costs and, as modified, we affirm.
Pardue submitted a letter to the court explaining that he would not file a respondent’s brief in this appeal.
FACTS AND PROCEDURAL BACKGROUND
Sharma’s motions to augment the record on appeal and for judicial notice are granted.
This court entered its opinion in case No. B174811 on October 24, 2005. The remittitur issued on March 1, 2006, stating that the opinion had become final and Pardue was to recover his costs on appeal. On April 6, 2006, Pardue’s attorney, Marjorie Fuller, filed a memorandum of costs on appeal totaling $1,316.32, including $316.86 for preparation of a reporter’s transcript, $221.36 for printing briefs, $53.06 for expenses of service, $250.04 for transmission and filing of the record, briefs, and other papers, and $375 for production of Pardue’s respondent’s brief under California Rules of Court, rule 27(c)(1)(D). Sharma’s attorney, Marguerite Buckley, requested receipts from Attorney Fuller.
On April 21, 2006, Sharma filed a motion to tax costs, raising the following issues: a reporter’s transcript had been ordered prior to the filing of Sharma’s notice of appeal, and therefore, Pardue did not incur costs on appeal for preparation of a reporter’s transcript; the amounts that Pardue listed for printing briefs and expenses of service were excessive and should be reduced to $39.36 and $18.00, respectively; the amount that Pardue listed for transmission and filing of documents was ambiguous and required further explanation to show it differed from expenses of service; and the amount requested for production of the brief was a duplication of the amount listed for printing the brief. Sharma filed a declaration stating that although Attorney Fuller had asked to borrow her copy of the clerk’s transcript approximately six months after she had received it, she was unable to locate it.
On May 15, 2006, Attorney Fuller provided receipts and additional information to Sharma. She stated that it had been necessary to copy the reporter’s transcript because Sharma was unable to provide a copy on request. She noted that she did not have a receipt for the production of the brief, but stated that the law allowed recovery of the cost of producing a final copy of the brief and the charge listed was the hourly rate for her paralegal to prepare the briefs, tables, and appendices for printing.
On June 6, 2006, Pardue filed a responsive declaration to the motion to tax costs. He attached several documents, including Attorney Fuller’s May 15, 2006 letter to Sharma and receipts. The amount of $316.86 for preparation of a reporter’s transcript was supported by a receipt in that amount for copying of the record at the Court of Appeal. The amount of $221.36 for printing briefs was supported by three documents from Kinko’s, including an undated receipt from Kinko’s for charges of $60.19, a blank Kinko’s job order form with the handwritten notation “$136.72,” and a receipt from Kinko’s for charges of $24.45 that had been copied with a note dated December 23, 2005. The amount of $53.06 for expenses of service was supported by three receipts showing expenditures at postal centers, including expenses for priority mail. The amount of $250.04 for transmission and filing of the documents was supported by seven different invoices from DDS Attorney Services with the following notations: an association of appellate attorney was delivered on May 14, 2004; an application for extension of time to file brief was delivered on June 8, 2005; a motion was delivered on June 14, 2005; a respondent’s brief and a motion to augment were delivered on June 28, 2005; a motion was delivered to Division 7 of this court on December 22, 2005; an application for extension of time was delivered on January 24, 2006; and a respondent’s brief was filed on February 17, 2006. As explained in Attorney Fuller’s letter, the amount of $375 for production of Pardue’s respondent’s brief was not supported by a receipt or invoice.
Sharma filed a reply. Attorney Buckley declared that she was Sharma’s attorney in appellate case No. B174811, which was the underlying appeal in the instant matter, and in several appeals consolidated under appellate case No. B178955, which had not yet been argued before the court. Sharma argued that Pardue was not entitled to the amount requested for preparation of the reporter’s transcript, because the receipt showed 742 pages were copied from the appellate court record, which appeared to include the clerk’s transcript. Sharma argued that the charge was unnecessary, because Pardue was given an opportunity to purchase the clerk’s transcript for $120 from the superior court or he could have timely requested to borrow her copy of the record.
Sharma argued that the receipts submitted in support of the costs for printing briefs were insufficient. The Kinko’s receipt in the amount of $60.16 was undated and showed charges for 14 copies of a brief at $4.21 each. Sharma argued the amount was excessive, because only 12 briefs were required by law and 12 briefs should have been a charge of $56.16. The job order form with the handwritten amount $136.72 was not necessarily related to the costs from the appeal in question. The undated receipt from the copy shop in the amount of $24.45 had been attached to a document dated December 23, 2005, after the date the appeal was decided, and therefore was not necessarily a recoverable printing cost on appeal.
Sharma argued that Pardue could not recover as expenses of service the cost of using priority mail to send copies to himself and his attorneys. She also argued that the amount of the costs for transmission and filing of the documents should be reduced. She conceded that the amount of $26.82 for delivery of the respondent’s brief and motion to augment filed on June 28, 2005, was proper. However, she argued that the amounts shown on six other DDS Attorney Service receipts were not recoverable as incurred costs, including: $26.57 for delivery of a letter containing an association of counsel; $26.57 for delivery of a letter containing an application for extension of time for Pardue to file his brief; $26.57 for delivery of a motion for relief from default; $77.67 to file a motion in Division 7 of this court to dismiss case No. B178955; $36.96 to file a request for extension of time on January 24, 2006, which did not correspond to any filing on the appellate court record for case No. B174811 and likely corresponded to a document filed in case No. B178955; and $28.38 to file a respondent’s brief on February 17, 2006, which similarly did not correspond to any filing in case No. B174811 and was likely filed in connection with case No. B178955. Sharma argued Pardue was entitled to recover costs incurred in connection with appellate case No. B174811, but not costs incurred in connection with the separate consolidated appeals under case No. B178955.
Sharma also argued that Pardue was not entitled to recover $375 for the time spent by his attorney’s paralegal to type a final copy of the respondent’s brief. Therefore, Sharma argued that Pardue’s reasonable proven costs were $78.11.
The trial court issued a tentative ruling that Pardue had not met his burden as to two items. Specifically, the invoice for preparation of a reporter’s transcript did not identify the case number and one of the receipts attached to support the cost of printing of the briefs was illegible, and there was no declaration identifying or authenticating the documents. A hearing was held on June 19, 2006. Attorneys for both parties appeared. No reporter’s transcript or settled statement of the hearing has been provided on appeal. The minute order reflects that the trial court ordered Pardue to file a declaration providing adequate evidence of costs and permitted Sharma to file a response.
We asked the parties to brief whether the record was inadequate for appellate review because it lacked certain documents, including a reporter’s transcript of the June 19, 2006 hearing. Sharma supplied several documents. She stated that the trial court did not take oral testimony at the June 19, 2006 hearing, but instead ordered Pardue to file a declaration providing adequate evidence of costs. Pardue also filed a letter brief in response to our request arguing that the appeal should be dismissed.
Attorney Fuller submitted a declaration stating that she had represented Pardue in appellate case No. B178955. She did not refer to the underlying appeal in the instant case. She declared that the invoice in the amount of $316.86 for copying the clerk’s and reporter’s transcripts at the Court of Appeal was required after Sharma was unable to locate her copy of the transcripts. She declared that the invoices from the copy shop for $136.72, $24.45 and $60.16 were for printing and binding briefs. Attorney Fuller identified and authenticated the receipts for serving the briefs by priority mail, as well as for express mailing a copy of the brief to Sharma when she did not receive the original service of the brief. Attorney Fuller declared that Sharma was correct that $77.67 of the amount listed as costs of filing documents in Division 7 of the Court of Appeal should be taxed from the cost bill because it referred to a charge from another appeal. She declared that $375 for production of the brief was the cost for her paralegal to type the response to Sharma’s appellate brief and miscellaneous motions in the case, which was a recoverable cost on appeal.
On July 10, 2006, Sharma filed a reply to Attorney Fuller’s declaration. She noted that costs were awarded in case No. B174811, but Attorney Fuller had referred in her declaration to representation of Pardue in appellate case No. B178955, which had yet to be decided. Although Attorney Fuller admitted the receipt for $77.67 was not proper, she continued to include items that were in reference to case No. B178955. Although Attorney Fuller stated that copying the record was necessary because Sharma had not provided hers, Attorney Fuller did not address the requirement to make a request within 20 days of notification that the record had been filed in the Court of Appeal.
In regard to the three receipts for printing briefs, Sharma continued to argue that one of the receipts was illegible and referred to binding more copies than necessary, and one of the receipts in the amount of $24.45 was attached to a document dated December 23, 2005, which would not have been related to the appeal in question. Sharma objected that the receipts provided for service expenses did not add up to the amount requested and the cost of sending letters to Pardue should not have been included.
On July 14, 2006, the trial court found that Pardue had met his burden that the expenses except $77.67 were the type allowable under California Rule of Court, rule 27 and the costs were reasonable. The motion to tax costs was granted as to costs of $77.67 and denied as to costs of $1,138.45. Sharma filed a timely notice of appeal.
DISCUSSION
Standard of Review
“The trial court's exercise of discretion in granting or denying a motion to tax costs will not be disturbed if substantial evidence supports its decision. (Care Constr., Inc. v. Century Convalescent Centers, Inc. (1976) 54 Cal.App.3d 701, 703.)” (Jewell v. Bank of America (1990) 220 Cal.App.3d 934, 941.) Whether a costs item is “‘“reasonably necessary to the conduct of the litigation” is a question of fact for the trial court, whose discretion will be reviewed for an abuse of discretion. [Citations.]’ [Citation.]” (Baker-Hoey v. Lockheed Martin Corp. (2003) 111 Cal.App.4th 592, 605.) An appellate court will not disturb discretionary rulings of the trial court and thereby divest the court of its discretionary power unless appellant can demonstrate a clear abuse of discretion amounting to a miscarriage of justice. (Denham v. Superior Court (1970) 2 Cal.3d 557, 566.) Abuse of discretion “‘implies . . . capricious disposition or whimsical thinking.’” (In re Cortez (1971) 6 Cal.3d 78, 85.) Discretion is abused only where it appears that the trial court “exceed[ed] the bounds of reason, all of the circumstances before it being considered.” (Loomis v. Loomis (1960) 181 Cal.App.2d 345, 348-349.)
Costs Incurred for Other Appeals
Our opinion was entered in the underlying appeal on October 24, 2005. Sharma contends that costs incurred after that date were in connection with another appeal and the trial court abused its discretion by awarding costs based on those charges. We agree that the cost award must be reduced.
Pardue submitted no evidence to show that the charges he incurred for preparing and filing documents after October 24, 2005, were related to the instant case. In fact, Attorney Fuller’s declaration in support of the costs request specifically referred to her representation of Pardue in another appeal and not the instant appeal. Therefore, the amount requested for printing briefs should have been reduced by $24.45 to reflect the Kinko’s charges that were apparently incurred on December 23, 2005. In addition, the costs for transmission and filing of the documents should have been reduced by $65.34 (to reflect the DDS charges of $36.96 to file a request for extension of time on January 24, 2006, and $28.38 to file a respondent’s brief on February 17, 2006). The cost award must be reduced by $89.79.
Additional Contentions
Sharma also contends that Pardue should not have been allowed to recover the cost of photocopying the record on appeal, Pardue’s printing expenses were excessive and unnecessary, Pardue should not have been awarded costs for priority mail, express mail or messenger fees, and Pardue was not entitled to costs for typing the draft of his respondent’s brief. However, all of these expenses were recoverable costs and the amounts awarded were well within the trial court’s discretion. (See Heppler v. J.M. Peters Co. (1999) 73 Cal.App.4th 1265, 1298 -1299 [photocopying costs are within the discretion of the trial court]; Nelson v. Anderson (1999) 72 Cal.App.4th 111, 132 [“Messenger fees are not expressly authorized by statute, but may be allowed in the discretion of the court”]; Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 776 [same].)
DISPOSITION
The June 14, 2006 order awarding costs is modified to grant the motion to tax costs as to costs of $167.46 and deny it as to costs of $1048.66. As modified, the judgment is affirmed. The parties are to bear their own costs on appeal.
We concur: ARMSTRONG, Acting P. J., MOSK, J.