Markey v. Club

Filed 2/6/08 Markey v. Club CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEAL from the judgment of the Superior Court of Los Angeles County. John P. Shook, Judge. Affirmed in part, reversed in part, and remanded with directions.

Lerman Pointer & Clarkson and Robert L. Clarkson, for Plaintiff and Appellant.

Lewis Brisbois Bisgaard & Smith, Roy G. Weatherup and Jeffry A. Miller, for Defendant and Respondent.

__________________________

Plaintiff Christian E. Markey III appeals from the judgment entered after a jury verdict determined that defendant Jonathan Club did not improperly convert Markeys equity interest in the Club after terminating his membership. Markey also appeals from the trial courts order granting a nonsuit on his other causes of action, including claims for breach of contract and misrepresentation. We affirm the judgment and the nonsuit order. The Jonathan Club appeals from the posttrial order taxing more than $100,000 in trial-related costs. We affirm that order to the extent it rejected the Jonathan Clubs requests for discretionary expert witness fees and for messenger fees for documents sent to a discovery referee, but we reverse the order to the extent it denied the Jonathan Clubs requests for court reporters fees and certain messenger fees.

FACTS AND PROCEDURAL HISTORY

1. A Brief Overview

Christian E. Markey III had his membership in the Jonathan Club (the Club) terminated in 1999 after he pleaded no contest to three misdemeanor counts of annoying and molesting three teenage girls at the Club in December 1995. (Pen. Code,  647.6, subd. (a).) Although Markey insists that the accusations were not true and that his innocent actions were misinterpreted or misrepresented, he never appealed or otherwise challenged his conviction and never sued the three girls for making false accusations. Instead, Markey has sued the Club twice for its role in the incident and its aftermath.

The first action was in mandate, alleging that the Club violated his procedural rights when it terminated his membership. The trial court found that the Club acted properly in terminating Markeys membership, and we affirmed that judgment. (Markey v. Jonathan Club (Aug. 20, 2002, B152244 [nonpub. opn.]) (Markey I.).) The second action, which is now on appeal, alleged that the three girls who accused Markey of molestation were essentially trespassers at the Club on the date of the incident, and that the Club therefore breached its contract to ensure that nonmembers or their unsupervised children would not be allowed to use the Clubs facilities. Markey also stated a cause of action for conversion, claiming that he owned an equity interest in the Club by virtue of his membership, which the Club wrongfully withheld after he was expelled. He also asserted causes of action for fraud, negligent misrepresentation, and unfair business practices (Bus. & Prof. Code,  17200) based on allegations that the Club misrepresented the nature and extent of his equity rights. The complaint also included a cause of action for breach of fiduciary duty based on the Clubs alleged misconduct in handling the molestation accusations and in misrepresenting Markeys equity rights.^[1]

The trial lasted nearly six weeks, with a large portion of Markeys time spent trying to discredit his three accusers. After Markey rested, the Club moved for a nonsuit on all causes of action. The trial court denied the motion as to the conversion cause of action, but granted it as to the others. The breach of contract action was nonsuited because the court believed it was an improper attack on the validity of Markeys misdemeanor convictions. The fraud and negligent misrepresentation claims were nonsuited because the court found that Markey was not entitled to rely on any representations about his supposed equity interest in the Club when the Clubs rules and bylaws made it clear that any equity rights accrued only if and when the Club dissolved, and that those future rights vanished once Markeys membership was terminated. The unfair business practices claim was nonsuited because the court said there was no evidence to support it and because it was merely redundant to the remaining conversion cause of action.^[2]

The trial continued as to the conversion cause of action. The jurys special verdict determined that Markey had an equity interest in the Club, but that the Club did not wrongfully take possession of that interest. Judgment for the Club was later entered. The Club then sought costs of more than $200,000, but the court granted Markeys motion to tax more than $100,000 of that amount, the bulk of which represented certain expert witness fees. The trial court granted Markeys motion to tax costs as to those expert witness fees, as well as to court reporters and messenger fees. On appeal, Markey contends the jurys verdict on the conversion claim was tainted by error in both the instructions and the special verdict form, and that the court erred by granting the Clubs nonsuit motion as to the other causes of action. The Club, which has separately appealed, contends the court erred by granting Markeys motion to tax costs.^[3]

2. Facts Relevant to Breach of Contract Claim

The Club is a private social organization with approximately 3,500 members, and has facilities in downtown Los Angeles and at the beach in Santa Monica. It was organized under California law as a nonprofit mutual benefit corporation. (Corp. Code,  7110, et seq.) The Club operates pursuant to a set of bylaws and house rules, documents that Markey alleged constituted a contract governing the Clubs relationship with its members. The house rules prohibited unauthorized and unsupervised minors from entering or using the Clubs facilities. The rules required members to accompany minors and guests at all times. Children age 12 and up could be unsupervised only if they were approved to receive a Family Privilege Card. All guests were required to sign in at the reception area before entering. According to Markey, these provisions guaranteed him a haven that was both safe and free from unsupervised minors.

The molestation incident occurred at the Clubs beach facility. The three girls involved were 13, 14, and 15 years old, respectively, at the time. The grandfather of one of the girls was a longtime member and she was a frequent visitor. She did not have a Family Privilege Card. The other two girls were her friends and entered the Club with her. It is undisputed that none of the girls complied with the house rule requirements for admission that day and none was supervised by an adult. It is also undisputed that the Club was often lax in enforcing the entry rules and that trespassers would sometimes gain access to the Clubs facilities. Markey contends that his three accusers gained access to the Club because the Club breached its contractual duties to keep out unauthorized persons and unsupervised minors, thereby causing him damages for emotional distress, harm to his reputation, loss of income, and other incidental loss.

3. Facts Relevant to Conversion and Misrepresentation Claims

In 1985, Markey applied to join the Club as a junior member. This entitled him to join at a reduced initiation fee. When Markey turned 35 in 1993, he became eligible to continue with the Club as a resident member, at which time he would pay further initiation fees in order to obtain full membership status. Markey did so, eventually paying initiation fees totaling $10,000. According to Markey, when he first joined in 1985, someone on the Clubs membership committee told him that when he paid off that amount and attained resident member status, he would have a piece of the Club or equity in the Club. When Markey turned 35, he received a letter from the Club advising him that he was eligible to complete the process of becoming a resident member, at which time he would receive full voting rights and an equity in the Club . . . . When Markey completed that process, he obtained a share certificate from the Club that he contends represented his equity stake in the Clubs assets. The Clubs annual financial reports also listed figures showing the members combined equity in the Club. Markey had also been told that his membership could be transferred, sold, or bequeathed. In short, Markey claimed he had been told that he owned a share of the Club that had value and that could be passed along to others for value.

However, as a nonprofit mutual benefit corporation, the Club can distribute assets only when it dissolves. (Corp. Code,  7411, subd. (a).) In accordance with this provision, the Clubs resident membership certificates state that it may not make distributions to its members except upon dissolution. The certificates also state that resident members are entitled to all of the rights and privileges incident [to such membership], subject to the Articles of Incorporation, Bylaws, rules and regulations of the Jonathan Club, copies of which are on file at the principal office at 545 South Figueroa Street, Los Angeles, California. . . . []  This certificate and the membership evidenced thereby is transferable, subject to such rules and regulations and restrictions as to the qualification of the transferee, and subject to the payment of [Club approved transfer fees]. . . . A copy of such restrictions on transferability is available for inspection by members . . . on the same basis as the records of the Jonathan Club.

The Clubs bylaws state that, as a nonprofit mutual benefit corporation, it does not contemplate distributing gains, profits or dividends to its members except upon dissolution. A member who resigns is deemed to have abandoned any interest of such member in the property and assets of the Club . . . . The bylaws provide that [n]o member shall have any proprietary or equity interest in the assets of the Club, or by virtue of that persons membership in the Club, except upon dissolution of the Club at which time the net assets remaining after the Clubs debts, obligations and liabilities have been paid or adequately provided for shall, subject to any preferential right of any Life member, be divided and distributed in equal shares among Resident members who shall have complied with all conditions to their sharing in such distribution. No other classification of membership shall have any right to share in the assets of the Club upon its dissolution. The bylaws also provide that the board of directors may suspend, expel, or terminate members for conduct that is prejudicial to the reputation and best interests of the Club. Pursuant to the Clubs house rules, [a]ny person whose membership is terminated, immediately loses all Club privileges and rights of membership including, but not limited to, the ability to use or reside in the Club. While the Clubs annual reports do list a figure representing the members combined equity, that figure is qualified by the footnoted statement that the equity represents the Clubs net assets and that, pursuant to California law and the Clubs bylaws, distribution of those assets was prohibited until the Club dissolved. Finally, the bylaws do allow transfers of resident memberships subject to Club approval and also allow gifts or bequests of memberships to lineal descendants. Markey admitted that he signed his membership application form, which bound him to follow the bylaws and house rules.

The Club contends that pursuant to these provisions, Markey could obtain an equity interest in the Club only upon its dissolution and only if he were a member at the time. Once his membership was properly terminated a matter already determined in the Clubs favor in Markey I he lost any contingent equity rights he might have one day obtained and no conversion of those rights occurred. Markey contends that the nature and extent of his rights were misrepresented and that nobody from the Club ever contradicted his understanding that as a member he attained equity rights that could not be taken from him.

STANDARD OF REVIEW

A nonsuit motion has the same effect as a demurrer to the evidence: it concedes the truth of the facts proved and contends that those facts are insufficient as a matter of law to sustain the plaintiffs case. (Alpert v. Villa Romano Homeowners Assn. (2000) 81 Cal.App.4th 1320, 1328.) We independently review the trial courts order granting a nonsuit, guided by the same rules that governed the trial court. We must interpret the evidence and all its concomitant inferences and presumptions most favorably to the plaintiff and, having done so, will affirm only if the evidence requires a judgment for the defendant as a matter of law. However, a mere scintilla of evidence will not suffice, and the plaintiffs evidence must be substantial. (Pinero v. Specialty Restaurants Corp. (2005) 130 Cal.App.4th 635, 639.) The rules governing nonsuits do not relieve a plaintiff of the burden of establishing the elements of his case. If a plaintiff produces no substantial evidence of liability or legal cause, then nonsuit is properly granted. (Alvarez v. Jacmar Pacific Pizza Corp. (2002) 100 Cal.App.4th 1190, 1209 [in wrongful death action against restaurant for failure to properly train employees, nonsuit properly granted where there was no evidence the incident was foreseeable].)

DISCUSSION

1. Nonsuit Was Proper on the Breach of Contract Claim
Because Markeys Damages Were Not Reasonably Foreseeable

In order to show that the Club breached its contract, Markey spent much time at trial trying to show that his three young accusers had lied about what happened.^[4] The trial court granted the Clubs nonsuit motion on this cause of action because it believed Markeys misdemeanor convictions barred him from trying to prove that the girls accusations were false. (See Susag v. City of Lake Forest (2002) 94 Cal.App.4th 1401, 1408-1409 [in civil action for damages from false arrest, where plaintiff was convicted of the crimes charged, plaintiff first had to obtain reversal on appeal from judgment of conviction, or otherwise invalidate that judgment before pursuing damage claims].) Markey contends that Susag applies only to actions brought against the police or the prosecution. He also contends that the courts reliance on his misdemeanor no contest plea violated Penal Code section 1016, which provides that such pleas may not be used as an admission against the person who entered that plea in a later civil action based on or growing out of the act upon which the criminal prosecution was based. We need not resolve that issue, and will instead affirm on another ground raised in the Clubs nonsuit motion that the making of false molestation accusations was not a foreseeable result of a breach of the Clubs contractual duties to make sure that only authorized and supervised children were allowed entry. (Saunders v. Taylor (1996) 42 Cal.App.4th 1538, 1541-1542 [order granting nonsuit motion may be affirmed on any ground raised below, even if not relied on by trial court].)

Under Civil Code section 3300, the measure of damages for breach of contract is the amount which will compensate the party aggrieved for all the detriment proximately caused thereby, or which, in the ordinary course of things, would be likely to result therefrom. Civil Code section 3300 incorporates the common law rule of contract damage foreseeability articulated in Hadley v. Baxendale (1854) 156 Eng.Rep. 145. (Lewis Jorge Construction Management, Inc. v. Pomona Unified School Dist. (2004) 34 Cal.4th 960, 969 (Lewis Jorge).) General damages are those that flow directly and necessarily from a breach of contract, or that are the natural result of a breach. Such damages are therefore those within the contemplation of the parties, meaning that because their occurrence is sufficiently predictable the parties at the time of contracting are deemed to have contemplated them. (Id. at p. 968, citation omitted.) Special damages are those that do not arise directly and inevitably from any similar breach of any similar agreement. Instead, they are secondary or derivative losses arising from circumstances that are particular to the contract or to the parties. (Ibid., italics added.) Such damages are recoverable if the special or particular circumstances from which they arise were actually communicated to or known by the breaching party (a subjective test) or were matters of which the breaching party should have been aware at the time of contacting (an objective test). [Citations.] (Id. at pp. 968-969.) They will not be presumed from the mere breach but instead represent loss that occurred due to injuries following from the breach. (Id. at p. 969.)

Although Markey does not contend that his injuries qualified as special damages, the italicized language above from Lewis Jorge, supra, 34 Cal.4th at page 968 is helpful to our analysis. By distinguishing special damages from general damages as those that do not arise directly and inevitably from any similar breach of any similar agreement, the Lewis Jorge court implicitly defined general damages as those that do arise directly and inevitably from any similar breach of any similar agreement. With this in mind, the issue we must decide is whether Markeys evidence, if true, was sufficient for a jury to conclude that a false molestation accusation was a reasonably foreseeable result of a social clubs breach of its contractual duty to keep unauthorized and unsupervised children out of its facilities.^[5]

To answer that question, we consider the purposes of such a duty. The most obvious is to make sure that an exclusive, private club remains just that by restricting access to only members and their authorized guests. If nonmembers were free to enter, a club would lose that characteristic. Because people who join such organizations are usually wealthy, the rule might also exist to ensure that the members rub elbows with only the well-heeled or well-connected. A breach of that duty would inevitably cheapen the value of membership. Requiring adult supervision of minors has the obvious purpose of ensuring that adults using a social clubs facilities monitor and control their children in order to prevent inappropriate conduct and disruptive behavior. A breach of that rule would inevitably result in a loss of decorum and make use of a clubs facilities less enjoyable.

Markey contends these duties should be elevated into a type of personal security contract that is aimed not so much at crime in general, but at one particular offense falsely accusing a social club member of child molestation. While such an occurrence is of course possible, nothing in common experience suggests it is so predictable that a private social club must foresee its occurrence. Markey contends there was sufficient evidence to send this issue to the jury because: (1)  clinical psychologist Martha Rogers testified about the growing phenomenon of false molestation accusations by teenage girls, which she believed was not uncommon; and (2)  the Club admitted that there were perhaps as many as 100 trespassing incidents each year. As set forth below, this evidence is insufficient to show foreseeability.^[6]

First, Rogers never testified that false accusations were a growing and common phenomenon. Instead, based on certain statistical data from the year 2002, Rogers testified that 2.6 million claims of sexual abuse of all kinds were made that year, 1.8 million of those were investigated, perhaps 900,000 were found to lack substantiation for a variety of reasons, and just 7,200 cases nationwide were fabricated, by either the children themselves or their parents. Rogers gave no details about the circumstances of any of those 7,200 cases, and there was no evidence that even one took place at a private social club. Moreover, Rogerss testimony was based on statistical evidence culled from the year 2002, not in 1985 when Markey joined the Club, nor in 1993 when he became a resident member, years more germane to Markeys breach of contract claim.

Second, there was no evidence that a child abuse molestation accusation be it true or false had ever before been leveled at a Club member. And despite evidence that there were as many as 100 trespassing incidents a year at the Club, the only evidence about any criminal activity at the Club came from a Club official who testified that security cameras had been installed in the parking lot area because of vehicle thefts, and that there had been a few locker room thefts of members unattended personal belongings. Car thefts from the Clubs parking lot do not implicate the Clubs access rules, however, and there was no evidence that any of the locker room thefts were committed by trespassers.

Finally, Markey never testified that when he became a member he contemplated that the Clubs access rules were specifically designed to protect him against false molestation accusations. Instead, he testified that he viewed the Club as a peaceful refuge and that, up to the date of the incident with the three girls, he felt comfortable about the quality of the people at the Clubs beach facility and never realized that something may be wrong here, this may not be the oasis I thought it was[.]^[7] That testimony does not support a finding that the occasional presence of unauthorized persons at the Clubs beach facility was creating problems for Markey or other Club members. Instead, it suggests just the opposite.

In short, even accepting Markeys evidence as true, it is insufficient as a matter of law to show that such incidents were foreseeable. Therefore, Markey failed to prove this element of his breach of contract claim and we will affirm the order granting nonsuit on that cause of action. (Alvarez v. Jacmar Pacific Pizza Corp., supra, 100 Cal.App.4th at p. 1209.)

2. Any Instructional Error in the Conversion Claim Was Harmless

Markeys conversion cause of action was based on his contention that the Club failed to pay him the value of his equity share in the Club after terminating his membership.^[8] He contends the trial court committed instructional error in regard to his conversion claim in two respects: (1)  by rejecting his proposed special instruction that he could prevail on the claim even if his equity in the Club represented a future interest; and (2)  by giving the jury a special verdict form that asked it to determine whether the Club wrongfully took possession of his equity interest, instead of asking the jury to determine whether the Club intentionally took that interest. According to Markey, the future interests instruction was necessary to counterbalance an instruction that the Club could not distribute its assets until and unless it dissolved. He contends the special verdict form was wrong because it allowed the jury to consider whether the Club acted with a wrongful specific intent, when all that he had to prove was that the Club intentionally took away his equity rights.

We reject Markeys contentions. First, a cause of action for conversion requires allegations that a plaintiff owns or has a right to possess certain property, that the defendant committed a wrongful act toward that property that interfered with plaintiffs possession, and that the plaintiff was damaged as a result. (PCO, Inc. v. Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro, LLP (2007) 150 Cal.App.4th 384, 395.) Therefore, we see no error in asking the jury to determine whether the Club wrongfully took possession of Markeys equity rights. Second, the jury was asked to, and did find, that Markey owned a right to possess an equity share in the Club. As a result, any error in failing to instruct that a conversion claim could be based on a future interest was harmless. (Fuller-Austin Insulation Co. v. Highlands Ins. Co. (2006) 135 Cal.App.4th 958, 1003-1004 [instructional error may be harmless if cured by other instructions].) Finally, and more fundamentally, the Club contends that, pursuant to its bylaws and house rules, as well as California law, Markey did not have a proprietary or equity share in the Club except upon its dissolution, and that all such rights were lost when his membership was terminated. The jury was so instructed, and was also instructed that the Clubs termination of Markeys membership was not wrongful.^[9] As we see it, those instructions acted almost like a directed verdict on the conversion claim, but Markey does not challenge them or the Clubs interpretation of its bylaws and rules.^[10] Accordingly, we deem the issue waived and hold that the jury was correctly instructed that Markey lost his equity rights due to the proper termination of his membership. As a result, even if Markeys claims of instructional error are correct, those errors were harmless.

3. Nonsuit on the Misrepresentation Claims

A. Ambiguities in the Record Lead Us to Affirm on Another Ground

In order to prevail on causes of action for fraud and negligent misrepresentation, Markey was required to prove that the Club made false representations or misstatements of material fact concerning the nature of his supposed equity interest in the Club. (Rios v. Scottsdale Ins. Co. (2004) 119 Cal.App.4th 1020, 1028.) When a fraud defendants alleged false assertion is too vague or indefinite, it cannot constitute an actionable false representation. (See Shirreffs v. Alta Canyada Corp. (1935) 8 Cal.App.2d 742, 748-749 [representations were not too vague and indefinite to prevent contract rescission based on fraud].) As set forth below, we conclude that rule applies here and warranted the order of nonsuit.

Before discussing that issue, however, we must first explain why we affirm on that particular ground. We do so based on a record and appellate argument that leave some room for uncertainty as to both the grounds raised for the Clubs nonsuit motion and the basis for the trial courts order granting that motion on the fraud and negligent misrepresentation claims. When the Club made the motion, its counsel argued with respect to the fraud cause of action that there was no evidence of fraudulent intent or reasonable detrimental reliance by Markey, who was a lawyer. As to the negligent misrepresentation claim, the Club argued that the same was true, but added that there had been no showing of a misrepresentation with respect to both of those causes of action because the Clubs bylaws are clear that there was no immediate equity interest. Counsel added that Markey had agreed to abide by the Clubs rules and regulations when he signed his membership application. As we read the record, it appears that the Clubs lawyer was continuing his assertion that nonsuit was proper because the limitations on Markeys equity rights set forth in the Clubs rules and bylaws eliminated Markeys reliance on any contrary oral representations. When argument resumed the next day, the Clubs lawyer told the court: A misrepresentation. If you want to say that sending him the letter that says equity is misrepresentation is not the basis for saying there is an ownership interest, it does not exist. When the court ruled on the motion, it found that the fraud cause of action was redundant to the conversion claim, but, regardless, there [was] insufficient evidence to show a detrimental reliance on these materials as to this cause of action. As for the negligent misrepresentation claim, the court ruled that there was insufficient evidence to show a negligent misrepresentation that would justify an award for a negligent misrepresentation cause of action.

In his opening brief, Markey acknowledged that the Club had argued below that nonsuit was warranted as to both causes of action because there had been no showing of a misrepresentation. Markey argued that conflicts in the evidence existed because he had been told he owned a piece of the Club, and that the Club later denied that he had any such rights. That however, was the extent of Markeys argument concerning the existence of an actionable misrepresentation. The Club, however, did not address that issue in its brief. Instead, it argued that Markeys damages were caused by his proper termination from the Club, not by any misrepresentations concerning his equity rights. Markeys reply brief did not clarify matters, but instead responded to the Clubs causation argument.

In short, we must determine whether to affirm or reverse based on a muddled record and unfocused arguments which leave us guessing as to the precise grounds for the motion and basis for the trial courts ruling. To resolve this, we have relied on the well-established rule that trial court rulings are presumed correct, and all ambiguities, intendments, and presumptions are resolved in favor of affirmance. (Winograd v. American Broadcasting Co. (1998) 68 Cal.App.4th 624, 631.) With this in mind, we conclude it is proper to affirm the nonsuit as to the negligent misrepresentation claim on the ground raised by the Club when it argued its nonsuit motion for the second time that there was insufficient evidence of a negligent misrepresentation. To the extent that issue was not raised as a ground for nonsuit on the fraud cause of action, we can still affirm the courts ruling. The fraud and negligent misrepresentation claims were based on the same alleged misrepresentation, and the oral statements made by the Club were too vague to support either cause of action. (Sipes v. Kinetra, L.L.C. (E.D. Mich. 2001) 137 F.Supp.2d 901, 910 (Sipes).) Because it does not appear from the record or the parties appellate briefs that there is any other basis or evidence to support the fraud cause of action, this fatal defect in Markeys fraud cause of action cannot be remedied and we may affirm even if this precise ground was not raised below. (Wilson v. Century 21 Great Western Realty (1993) 15 Cal.App.4th 298, 305-306 (Wilson).)

B. The Alleged Misrepresentations Were Too Vague to be Actionable

In Sipes, supra, 137 F.Supp.2d 901, a former company executive sued the company, claiming he did not receive an equity share in the company upon its dissolution, as promised. The foundation for his claim was language in a joint venture formation agreement that said the plaintiff would receive an equity interest on terms consistent with those given to other members of the executive committee. In affirming a summary judgment for the defendant company, the district court held that the language relied on by plaintiff did not indicate when, if ever, [the company] would be compelled to provide equity, under any terms, to any member of the [executive committee]. Because the language did not obligate the company to issue equity to any member of the executive committee, the plaintiffs ostensible entitlement to equity was subject to a condition precedent that need not ever be fulfilled. Under Colorado law, the court held, those promises were too indefinite to form a binding contract (id. at pp. 908-909), and under Michigan law did not amount to a false representation. (Id. at p. 910.)

Markey testified that he was told he had equity in the Club and that his membership could be sold, transferred, or bequeathed. However, as just discussed, he has effectively conceded that under the bylaws and house rules his equity rights did not accrue unless he was a member at the time the Club dissolved and that he lost those rights when his membership was properly terminated. Markey did not testify that he was told anything to the contrary and did not testify to any representations that he immediately obtained an equity share that could never be revoked. Nor, according to Markey, did he ever examine the house rules and bylaws in connection with that issue. Instead, he relied on a vague assertion that he had equity in the Club without explanation as to what that meant or how it operated. Applying the rationale of Sipes, supra, 137 F.Supp.2d 901, we hold that these statements were too vague and indefinite to amount to false representations or factual misstatements. (See Gentry v. eBay, Inc. (2002) 99 Cal.App.4th 816, 835 [vague representation of value was mere opinion, not misrepresentation of fact]; accord Glanzer v. Keilin & Bloom LLC (A.D. 1 Dept. 2001) 722 N.Y.S.2d 540, 541 [representations that plaintiffs would receive, among other things, an equity interest from their employer held too indefinite to permit enforcement of alleged contract]; Hamilton v. Wadsworth Pub. Co., Inc. (1984) 589 F.Supp. 417, 421 [applying Massachusetts law, granted directed verdict on employees fraud and negligent misrepresentation claims against former employer, finding that promise to award stock options was not actionable because no representations were made about when, how, or how many options plaintiff might receive]; cf. Shirreffs v. Alta Canyada Corp., supra, 8 Cal.App.2d at pp. 748-749 [recognizing that on proper facts, a vague and indefinite representation might defeat contract rescission claim based on fraud].)

Finally, even though the Club did not raise any grounds for a nonsuit as to the unfair business practices claim, we hold that the trial courts error in granting a nonsuit on that cause of action was harmless. Such a cause of action requires proof of conduct that is unlawful, unfair, or fraudulent. (Albillo v. Intermodal Container Services, Inc. (2003) 114 Cal.App.4th 190, 206.) Markeys first amended complaint alleged that the Club violated section 17200 by falsely representing to Markey and others that Club members had a combined equity interest of more than $18 million which could be transferred or sold for value at any future date if the members chose to do so, and that the Club obtained the equity interests of Markey and others by terminating their memberships for purported violations of the house rules and bylaws. As just set forth above, the evidence was insufficient to show that a misrepresentation was made. Because Markey does not contend that he has any more evidence on this issue, it appears that this defect in his case could not have been remedied if it had been included in the Clubs motion and therefore have been called to his attention. Accordingly, we may affirm the nonsuit on this ground even though it was not raised below. (Wilson, supra, 15 Cal.App.4th at pp. 305-306.)

4. The Court Did Not Err by Taxing the Costs of the Clubs Expert Witnesses

On October 22, 2004, the Club sent Markey a statutory offer to compromise his action for $25,000. (Code Civ. Proc.,  998 ( 998).) Markey rejected the offer. Because Markey lost at trial, his rejection of the section 998 offer entitled the Club to recover its trial costs, including in the courts discretion its expert witness fees. ( 998, subds. (a), (b)(2), (c)(1).) After judgment was entered for the Club, it filed a costs memorandum seeking to recover $99,631.97 in expert witness fees incurred after Markey rejected the Clubs section 998 offer. The Club was entitled to recover its section 998 costs only if the trial court determined that its offer had been made in good faith. (Hartline v. Kaiser Foundation Hospitals (2005) 132 Cal.App.4th 458, 470-471 (Hartline).) The trial court granted a motion to tax costs brought by Markey because it believed the Clubs offer had not been realistic or reasonable under the circumstances at the time it was made, and had instead been a token offer. The Club contends the trial court erred.

Whether a section 998 offer is reasonable depends on the circumstances of the case when the offer was made. Even a modest or token effort may be reasonable if the action completely lacks merit. When the defendant obtains a judgment that was better than its offer, the judgment is prima facie evidence that the offer was reasonable. However, to be in good faith, there must be some reasonable prospect of acceptance. (Hartline, supra, 132 Cal.App.4th at p. 471.) The reasonableness of an offer also depends on the information available to both parties concerning the merits or weaknesses of their respective cases. (Arno v. Helinet Corp. (2005) 130 Cal.App.4th 1019, 1025.) We review the trial courts findings on this issue for an abuse of discretion. (Hartline,at p. 471.)

The Club contends the trial court abused its discretion because the Club strongly believed it had no liability and, at the time its offer was made, had pending a potentially dispositive summary judgment motion. Markey counters that the Club had already lost an earlier summary judgment motion and that it eventually lost the motion that was pending when the offer was made. All we can tell from the record before us is that when the Club made its offer, it had lost one summary judgment motion, and that another one was pending. The record does not include copies of either motion and there is no way for us to determine whether those motions raised issues that were in fact dispositive or otherwise alerted Markey to the weaknesses in his case that led to his defeat at trial.^[11] Because the Club failed to carry its burden of supplying an adequate record for our review (Mountain Lion Coalition v. Fish & Game Com. (1989) 214 Cal.App.3d 1043, 1051, fn. 9), and given the trial judges great familiarity with the unusual fact situation and procedural history of this dispute, we conclude that the trial court did not abuse its discretion when it found that the Clubs section 998 offer had not been made in good faith.

5. The Trial Court Erred by Taxing the Clubs Costs
for Court Reporter and Court Messengering Fees

As part of its costs memorandum, the Club sought to recover messenger fees of $5,884.70 and court reporter fees of $5,895. The court granted Markeys motion to tax those costs, an order that the Club challenges on appeal.

Although messenger fees are not expressly authorized as recoverable costs by statute, they may be allowed in the trial courts discretion so long as they were reasonably necessary to the conduct of the litigation. (Code Civ. Proc.,  1033.5, subd. (c)(2); Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 857.) If items in a cost bill appear to be proper, the burden is on the opposing party to show that they were not reasonably necessary. If a proper objection is made, however, the burden of proof shifts to the party claiming the items as costs. (Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774 (Ladas).) A proper objection may be stated by way of an affidavit, or by way of oral or documentary evidence at the hearing on a motion to tax costs. (Melnyk v. Robledo (1976) 64 Cal.App.3d 618, 624; Oak Grove School Dist. v. City Title Ins. Co. (1963) 217 Cal.App.2d 678, 698-699.)

In Ladas, supra, 19 Cal.App.4th at page 776, the court affirmed an award of messenger fees as costs where they were related to trial preparation and were incurred for such matters as filing documents with the court, complying with the losing partys documents demands, and transporting exhibits to and from court. The Club sought to recover its fees on that basis, pointing to the numerous and voluminous documents and exhibits it filed with both the court and the discovery referee. Although Markeys motion to tax costs correctly stated that messenger fees for court or referee filings were not expressly recoverable, he never addressed the trial courts discretion to award such costs, a fact that the Club pointed out in its opposition. In his reply brief, Markey argued that messenger fees to the discovery referee were not reasonably necessary because the parties had been faxing their documents to the referee, but made no mention of messenger fees for documents filed with the court. Based on this record, we conclude that Markey did not make a specific and proper objection to the Clubs recovery of costs for messenger fees to file documents with the court. Therefore, the court had no contrary evidence before it. Accordingly, we hold that the trial court abused its discretion by taxing the Clubs costs for messenger fees to deliver documents to court, totaling $3,116.40. Because proper objections were made to the other messenger fees, however, we affirm the order to the extent it taxed those costs.

Finally, the court denied the Clubs request to recover its court reporter fees of $5,895. This was error, as the actual cost of employing court reporters is expressly recoverable. (Code Civ. Proc.,  1033.5, subd. (a)(11); Gov. Code,  68086; Heppler v. J.M. Peters Co. (1999) 73 Cal.App.4th 1265, 1298.)

DISPOSITION

For the reasons set forth above, the judgment is reversed only to the extent it did not include an award of costs to the Club of $3,116.40 in messenger fees and $5,895 in court reporter fees. The judgment is therefore modified to include those two items as recoverable costs. In all other respects, the modified judgment is affirmed. The matter is remanded to the clerk of the superior court with directions to enter a new and amended judgment that conforms to our decision. The Club shall recover its appellate costs in connection with Markeys appeal from the judgment and nonsuit orders, and Markey will recover his appellate costs in connection with the Clubs appeal from the order taxing costs.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

RUBIN, J.

WE CONCUR:

COOPER, P. J.

EGERTON, J.^*

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^[1] The first amended complaint also included contract-related causes of action against a fellow Club member who was the grandfather of one of Markeys accusers. Those claims were dismissed and are not at issue on appeal.

^[2] Nonsuit was also granted as to Markeys fiduciary duty claim, but he has not raised that as an issue on appeal and we therefore deem it waived. (Katelaris v. County of Orange (2001) 92 Cal.App.4th 1211, 1216, fn. 4.)

^[3] We ordered the two appeals consolidated for all purposes.

^[4] We express no opinion on that factual dispute and, for the sake of expedience, will assume for discussions sake only that the accusations were false.

^[5] Neither party has cited, nor have we found, any decisions considering such a fact situation, and the complete absence of even remotely analogous case authority from anywhere in the United States suggests how unlikely the scenario is. The closest fit comes from the tort law area of premises liability, where plaintiffs injured on business premises by the criminal acts of third parties sue the property owner for his failure to provide security measures. In determining whether the property owner had a duty to provide security, our courts require a high degree of foreseeabilty . . . [that] rarely, if ever, can be proven in the absence of prior similar incidents of violent crime on the landowners premises. (Claxton v. Atlantic Richfield Co. (2003) 108 Cal.App.4th 327, 336.) We will not apply the tort laws high standard of foreseeability, and will instead abide by the contract law principle that foreseeability is determined by whether the occurrence of an event was sufficiently predictable when the contract was entered so that the parties are deemed to have contemplated the event. (Lewis Jorge, supra, 34 Cal.4th at p. 969.)

^[6] At oral argument, Markeys lawyer contended that the Clubs president had testified that the Club believed it was foreseeable that unsupervised minors might make false molestation accusations, and promised to provide us a record citation showing where that evidence could be found. When he failed to do so, we sent a letter asking him to provide the record citation if it existed. Appellate counsel replied that he had been mistaken and that no such evidence was in the record.

^[7] Markey made no effort to prove that it is foreseeable that minors who came on to Club property without permission or who were not allowed to roam unsupervised because they had obtained a family privilege care were more likely to make false accusations than minors who were properly on the premises and who were allowed to be unsupervised.

^[8] During closing argument, Markey asked the jury to award him $115,000 as the value of his lost equity interest.

^[9] Because we affirmed the propriety of the Clubs decision to terminate Markeys membership in Markey I, this instruction was correct.

^[10] In fact Markey alleged in his misrepresentation claims that the Club lied when it told Markey he had equity in the Club because the true facts were that his equity could be taken away if his membership were terminated.

^[11] Markey argues that the trial courts later denial of the Clubs second summary judgment motion shows that his decision to reject the Clubs offer was sound. There is no reasonable rejection principle, however, and we do not consider the trial courts later denial of the second motion in determining whether the offer was reasonable when made. (See People Ex Rel. Lockyer v. Fremont General Corp. (2001) 89 Cal.App.4th 1260, 1270-1272.)

^* Judge of the Los Angeles County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.