Gaylor v. Hobdy

Filed 8/23/06 Gaylor v. Hobdy CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from orders of the Superior Court of Los Angeles County, Joseph De Vanon, Judge. Affirmed in part; reversed in part.

Damon L. Hobdy, in pro. per., for Defendant and Appellant.

Law Offices of Vip Bhola & Associates and Vip Bhola, for Plaintiff and Respondent.

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This appeal arises out of a trial court order denying a motion to strike or tax costs. After respondent Ruby Jane Gaylor was awarded her costs on appeal in a case against appellant Damon L. Hobdy, the trial court denied his motion to strike or tax her cost bill. Gaylor was granted her costs as requested. Hobdy appeals the denial of his motion. He argues that the cost bill should be stricken because it was filed before the remittitur was issued. Alternatively, he argues that specific items on the bill must be taxed. We conclude that Gaylor's premature filing does not render the bill void. We also conclude that only one of the three items challenged by Hobdy should be taxed. The trial court's award of costs to Gaylor is reversed in part, with directions.

FACTUAL AND PROCEDURAL SUMMARY

Hobdy is an attorney; respondent is his former client. This is their fourth visit to this court to address disputes over their former attorney-client relationship. In their second round of litigation, the trial court sustained Hobdy's demurrer and dismissed Gaylor's suit. In December 2003, this court reversed the order of dismissal and remanded the case to the trial court, awarding Gaylor her costs on appeal. Gaylor served her cost bill in January 2004, seeking to recover $851.24 from Hobdy for costs incurred on appeal. She filed this cost bill on January 15, 2004, which was before the April 15, 2004 issuance and filing of our remittitur.

On February 2, 2004, a date also before the remittitur, Hobdy challenged the cost bill with a motion to strike, or alternatively tax costs. The trial court took this matter up on May 5, 2005, after the remittitur. It denied this motion to strike or tax and awarded Gaylor her claimed costs. Hobdy filed an appeal.[1]

DISCUSSION

I

We have jurisdiction to consider a challenge to the trial court's award of costs in a prior appeal. (Code Civ. Proc., § 904.1, subd. (a)(2); Norman I. Krug Real Estate Investments, Inc. v. Praszker (1990) 220 Cal.App.3d 35, 46.) A trial court's decision as to whether an item of costs is proper is reviewed for abuse of discretion. (Citizens for Responsible Development v. City of West Hollywood (1995) 39 Cal.App.4th 490, 506.)

II

Hobdy argues that Gaylor's cost bill is invalid because it was filed before the issuance of the remittitur. A trial court does not have jurisdiction over a case that has been appealed until the appellate court issues a remittitur. (In re Francisco W. (2006) 139 Cal.App.4th 695, 704-705.) Hobdy reasons that because jurisdiction over this case was not revested in the trial court when it received the cost bill, the bill was void.

We agree that the trial court was without power to act on the cost bill or the motion to strike or tax costs until it was revested with jurisdiction by the remittitur. But we disagree with Hobdy's conclusion that the cost bill could not be considered even after the remittitur because it was served and filed prematurely. Serving and filing a premature cost bill is â€