>Salvio
Street v. Lee

















Filed 1/16/13
Salvio Street v. Lee CA1/5













>NOT TO BE PUBLISHED IN
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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



FIRST APPELLATE DISTRICT



DIVISION FIVE




>

>SALVIO STREET> LLC, > Plaintiff and Respondent, >v. >ALBERT LEE, > Defendant and Appellant.

A133694 (>San Francisco> >County> Super. >Ct.> No. CGC-06-455065)

Albert Lee (Lee) appeals from an
order denying in part his motion to strike or tax costs claimed by respondent
Salvio Street LLC (Salvio) after this court awarded Salvio costs on appeal for
one of two consolidated appeals. Lee
contends the court erred in awarding Salvio too much toward Salvio’s costs of
preparing an appendix and printing appellate briefs. Lee also appeals from the trial court’s
denial of Lee’s motion for sanctions against Salvio for seeking an award of
costs for reporters’ transcripts to which Salvio eventually agreed it was not
entitled.

As to the order on Lee’s motion to
tax costs, we will direct the trial court to tax an additional $55.06 and
otherwise affirm the order. We will also
affirm the order denying Lee’s motion for
sanctions.href="#_ftn1" name="_ftnref1"
title="">[1]

I. FACTS AND PROCEDURAL
HISTORY

As has often occurred in the many
appeals spawned by the underlying litigation over the past decade or so, the
parties’ recitation of the facts are so slanted, inaccurate, or otherwise
insufficient that we reconstruct what happened largely on our own, based on the
appellate record provided.

A.
Prior Appeals

In May 2008, judgment was entered in
favor of Salvio and against Lee in this litigation. The court quieted title to the subject
property in Salvio and declared that Salvio was the sole owner of the property
in fee simple. The court further
determined that Salvio was the prevailing party in the litigation and could
seek an award of costs and attorney fees.


Lee appealed from the judgment on July 25, 2008 (appeal number A122408). The
parties call appeal number A122408 the “Main Appeal.”

Salvio filed a href="http://www.mcmillanlaw.com/">memorandum of costs seeking, among other
things, recovery of expert witness fees.
Lee filed a motion to strike or tax costs, which was granted in
part. Lee appealed from the costs order
and Salvio filed a cross-appeal (appeal number 123080). Salvio also filed a motion to recover
$176,470.75 in attorney fees, which was denied, and Salvio appealed from the
denial (also appeal number A123080). The
parties refer to appeal number 123080 as the “Fees Appeal.”

The appeals were consolidated for
decision. After consolidation, Salvio
filed an appendix in lieu of a clerk’s transcript, purportedly in regard to
both the Main Appeal and the Fees Appeal.
In September 2009, Salvio filed a combined respondent’s brief for the
Main Appeal and a cross-appellant’s opening brief for the Fees Appeal. In February 2010, Salvio filed a reply brief
solely in support of its Fees Appeal.

We issued our opinion in the
consolidated appeals on July 29, 2010. As to the Main Appeal, we affirmed the
judgment. As to the Fees Appeal, we
modified the costs order by reducing it by $49 and affirmed the order denying
the award of attorney fees. We found
that Salvio’s appeal from the attorney fees denial was frivolous, and imposed
$1,000 in sanctions payable by Salvio and its counsel to Lee, and $1,000 in
sanctions payable by Salvio and its counsel to the clerk of this court. In this regard, we concluded that any
reasonable attorney would have agreed that the appeal from the attorney fees
order was completely without merit once we issued our opinion in another appeal
on November
26, 2008, and Salvio should have dismissed
its appeal from the attorney fees order.


We awarded Salvio its costs for the
Main Appeal and awarded Lee his costs for the Fees Appeal; as modified on August 24, 2010, our opinion reads: “Salvio Street
shall recover its costs on Lee’s appeals [Lee’s appeal from the judgment in
A122408 and appeal from the cost order in A123080]. Lee shall recover his costs on Salvio Street’s
appeal and cross-appeal [Salvio’s appeal from the attorney fees order and
cross-appeal from the cost order in A123080].”

B. Parties’ Motions After Remittitur

After the remittitur, both parties
sought their respective costs under rule 8.278 of the California Rules of Court
by filing a memorandum of costs. Only
Salvio’s memorandum of costs is at issue here.

1. Salvio’s
Cost Memorandum and Lee’s Motion to Strike or Tax Costs

Salvio’s memorandum of costs sought
an award for filing fees in connection with the consolidated appeals
($1,510.00), preparation of reporters’ transcripts ($650.00), printing of
appellate briefs ($516.24), and record preparation ($943.17).

Lee filed a motion to strike or tax
costs on January 10, 2011, arguing that all of the amounts should be taxed
(except for $46.75 in printing costs), because the costs were incurred with
respect to the Fees Appeal that Salvio lost (i.e. Salvio’s appeal from the
attorney fees order and its cross-appeal from the cost order).

On January 13, 2011, Salvio withdrew
its request to recover the filing fees of $1,510.00. As to the reporters’ transcripts, printing
costs, and record preparation, Salvio stated in its opposition to Lee’s motion
that this court awarded Salvio its costs on appeal in the Main Appeal, and the
Main Appeal “was the predominant appeal and was the predominant cause of all
costs on appeal.” Salvio also produced
invoices for the printing costs and clarified that the $943.18 in record
preparation costs was for the preparation of the appendix it filed in the
consolidated appeals.

On January 26, 2011, Lee filed a href="http://www.fearnotlaw.com/">reply brief in support of his motion to
strike or tax. As to the $650 reporters’
transcript costs, Lee contended that the docket indicated those transcripts
were ordered for Salvio’s appeal from the order denying Salvio’s attorney fees
and Salvio’s cross-appeal as to the order denying expert witness costs, and the
$650 was in any event refunded to Salvio by the court clerk (apparently,
because Lee had already ordered and paid for them). As to the printing costs, Lee argued that the
$516.24 figure should be reduced to $16.83 because: only pages 23-39 of
Salvio’s respondent/cross-appellant’s brief pertained to the Main Appeal; the
printing services on February 19, 2010, were for printing Salvio’s reply brief
in its unsuccessful Fees Appeal; and Salvio’s charge for index tabs was
inappropriate because the tabs were used for the Fees Appeal. As to the appendix, Lee argued that none of
the cost was recoverable because the appendix pertained entirely to the Fees
Appeal. Lee also disputed Salvio’s claim
that the Main Appeal predominated.

2. Lee’s
Section 128.7 Motion

On or about January 27, 2011, Lee
delivered to Salvio’s attorney, Carlos Alvarez, a notice of motion and motion
under Code of Civil Procedure section 128.7.
The motion, dated January 26, 2011, contended that Salvio and its
attorneys should be sanctioned for its memorandum of costs on grounds including
that the reporters’ transcripts were not prepared for the Main Appeal and the
court clerk had refunded the cost to Salvio anyway. There is no indication that this particular
motion was ever filed: it does not
appear in the docket, and the copy in the record does not bear a file-stamp or
a signed proof of service.

On February 16, 2011, Salvio served
a notice that acknowledged “Lee’s most recent motion for sanctions” and
“withdr[ew] any request for the cost of the reporter’s transcripts on the
hearing on the motion for fees and costs, if any.”

On July 12, 2011, Lee filed a motion
under Code of Civil Procedure section 128.7 with the court, but this motion was
not the same as the motion that had been previously provided to Salvio’s
attorney Alvarez. Lee’s filed motion
sought sanctions solely on the basis of Lee’s contention that Salvio was
claiming $650 for reporters’ transcripts that were not for the Main Appeal but
for the two appeals Salvio lost, and the court clerk had refunded the $650 to
Salvio through counsel.

Salvio did not file opposition
papers to the July sanctions motion; it would later claim it had not been
served with this motion.

3. Hearing
on Sanctions Motion and Motion to Strike/Tax Costs

The motion to tax or strike costs
and the sanctions motion came on for hearing on August 3, 2011.

As to the motion to strike or tax
costs, Salvio’s attorney Alvarez argued, among other things, that Salvio had
paid the $650 reporters’ transcript fee and could not explain the documentation
in the record that indicated the fee was refunded by the court clerk. Alvarez speculated that, since there was no
way he could have obtained the transcripts for free, the fee might have been
paid twice, and the refund pertained to the second (duplicate) payment. Salvio acknowledged, however, that the
documents before the court did not show two $650 payments. Salvio obtained a further opportunity to
brief the issue by August 10, 2011.

As for the sanctions motion, Alvarez
contended that he had never been served with Lee’s July motion; the court
suggested, and the parties agreed, that it would set a schedule for Salvio to
file an opposition to the motion, and for Lee to file a reply, after the court
ruled on Salvio’s claim for the reporters’ transcript costs.

On August 10, 2011, Salvio withdrew
its request for the reporters’ transcript costs. A declaration from Alvarez states that,
having manually reviewed Salvio’s billing records, he discovered that a $650
credit had indeed been received (and, implicitly, that only one payment of $650
had been made).

4. Trial
Court’s Ruling on Lee’s Motion to Strike or Tax Costs

On August 24, 2011, the court ruled
on Lee’s motion to strike or tax the costs claimed by Salvio (as well as
Salvio’s motion to strike or tax Lee’s costs, not at issue here). The court noted: “The central difficulty is a function of the
fact that the record on appeal was used to some extent by both sides in both
appeals, and then both make plausible claims for at least allocation of the
costs of those records.”

The court ruled that Salvio’s claim
for $1,510.00 in filing fees had been withdrawn and was therefore moot, and the
$650.00 for the reporters’ transcripts would be taxed in its entirety in light
of Salvio’s agreement that it should be.
As to the printing costs, the court acknowledged Lee’s claim that 17 of
the 48 pages of the “brief for which printing costs [were] claimed” were
attributable to the Main Appeal with the rest attributable to the Fees Appeal,
but found upon its own review that only about one-fifth of the brief was
attributable to the Fees Appeal. The
court then taxed one-fifth of the $516 requested for printing costs, reducing
the recoverable amount by $103.20.
Lastly, the court allowed the entirety of Salvio’s claim for the cost of
preparing the appendix. The court
explained: “I find that Salvio actually
incurred the costs, which are reasonable, and did so in connection with the
Main Appeal. While some of the costs of
preparing this record (respondent’s appendix) were useful in the Fees Appeal,
as it happened, nevertheless the costs would have been incurred without that
subsequent [Fee] appeal. I will not tax
these costs.”

The court set a new hearing date for
the sanctions motion and ordered a briefing schedule.

5. Trial
Court’s Denial of Lee’s Motion for Sanctions

Salvio filed its written opposition
to the sanctions motion, contending that Code of Civil Procedure section 128.7
does not apply to a memorandum of costs, Salvio’s initial request for the $650
reporters’ transcript costs had been an honest mistake, the sanctions motion
before the court was not the same motion Salvio had received from Lee in
January 2011, Lee refused to meet and confer, and the sanctions request was
overstated.

After a hearing, the court denied
the sanctions motion by written order filed on September 16, 2011. In explaining its denial, the court observed
that the primary dispute over the $650 reporters’ transcript costs had been whether
the costs were allocable to the Fees Appeal, not whether the $650 was refunded,
and it was further disputed whether the sanctions motion was properly served on
Salvio (the court ultimately found service was made). In addition, the court stated: “The present motion and the desired sanctions
are disproportionate to the fault, such as it is. Aside from the time spent on this motion, the
failure of plaintiffs to withdraw the $650 costs item led to little or no additional
expense to Lee, and to no further delays in the case. This item was one of many items both sides
were disputing in their respective cost bills following the appeals. Plaintiff’s fault is not clear cut, and is
attributable in great part to the predominating role (in the costs bill fight)
of the issue of allocation. Finally,
permitting an award of sanctions with these facts would encourage satellite
litigation. [¶] For these reasons,
I have exercised my discretion to deny the motion.”

This appeal followed.

II.
DISCUSSION

Lee contends the trial court erred
by failing to tax more of Salvio’s costs and by failing to sanction Salvio for
seeking $650 for the reporters’ transcripts.
We address each contention in turn.

A. Motion
to Tax Costs

Lee argues that the court should
have taxed some of Salvio’s claimed costs of preparing the appendix and an
additional amount of Salvio’s claimed costs of printing appellate briefs.

1. Preparation
of Appendix

The trial court determined that
Salvio incurred the costs of preparing the appendix in connection with the Main
Appeal, and that the costs for portions useful in the Fees Appeal would have
been incurred anyway.

Lee urges that the court should not
have awarded Salvio all of its costs of preparing the appendix, because pages
393 through 1595 of the appendix pertained solely to the Fees Appeal, for which
Salvio Street was not entitled to recover its costs. Accordingly, Lee argues, the preparation
costs of $943.18 should have been taxed by $677.59.href="#_ftn2" name="_ftnref2" title="">[2]

Lee, however, never presented this particular
argument to the trial court. Although
Lee tries in his appellate briefs to make it seem like the trial court ruled in
spite of his urging that pages 393 through 1595 of Salvio’s appendix pertained
exclusively to the Fees Appeal, nowhere is that argument found in Lee’s motion
to strike or tax costs, or in his reply papers, or in the record of the hearing
on the motion. The trial court did not
err in failing to accept an argument that Lee never made.

Lee contends it was obvious from the
face of the appendix before the court that pages 393 through 1595 pertained to
the Fees Appeal, and Salvio’s briefing showed that those pages were used for
the Fees Appeal rather than the Main Appeal.
But if that was so obvious to Lee, it gave Lee all the more reason to
point it out to the trial court. Yet, he
did not.

Furthermore, while Lee disputed
Salvio’s contention that the Main Appeal predominated, the record in this
appeal is insufficient to establish that the trial court erred in finding that
the portion of the appendix consisting of papers related to the attorney fees
motion were useful in, or sufficiently related to, the Main Appeal. The appellate record in this appeal contains
the appendix’s table of contents.
According to the table of contents, the titles of the documents
comprising pages 393 through 1595 ostensibly pertain to Salvio’s motion for
attorney fees, but without the documents themselves and a clearer demonstration
by counsel, we cannot evaluate the trial court’s conclusion that the portions
of the appendix useful in the Fees Appeal were useful in the Main Appeal.

Lee fails to establish error.

2. Printing


In the trial court, Lee contended
that Salvio’s $516.24 in costs for printing briefs should be taxed because only
some of the pages of Salvio’s respondent/cross-appellant’s brief was devoted to
the Main Appeal; Lee also noted that the $68.77 invoice for printing services
in February 2010 was exclusively for the reply brief in the Fees Appeal. The trial court, however, addressed the printing
costs only by reference to Salvio’s respondent/cross-appellant’s brief. Lee contends the court thus erred, arguing
that the court’s failure to exercise its discretion with respect to the reply
brief was itself an abuse of discretion.

We agree that Salvio was not
entitled to $68.77 based on its invoice for printing services performed in
February 2010. That invoice indicates it
was for the printing of a tan-colored brief (the color of an appellate reply
brief) and provides a reference number of “A123080,” which was the Fees
Appeal. Furthermore, the reply brief was
entitled, “Salvio Street’s Reply Brief in Case No. 123080,” and the first
paragraph stated expressly that it was submitted in regard to the appeal of the
denial of the motion for attorney fees and request for expert witness costs —
“(the ‘Fee Appeal’).”

While Salvio was not entitled to
recover for the February 2010 invoice, correcting the trial court’s order in
this regard is not as simple as reducing Salvio’s cost award by $68.77. When the court adjusted the amount of
Salvio’s printing costs by the proportion that Salvio’s
respondent/cross-appellant’s brief pertained to the Fees Appeal, the court
apparently thought that the respondent/cross-appellant’s brief represented the >entirety of the $516.24 claimed for
printing costs: the court referred to
“Lee[’s claim] that 17 of 48 pages of the brief for which costs are
claimed;” the respondent/cross-appellant’s brief is 48 pages; and the court, finding
that only “about 1/5 of the brief
[was] attributable to the Fees Appeal,” taxed one-fifth of $516 – approximately
the entirety of the $516.24 requested for printing costs – reducing the
allowable amount by $103.20. (Italics
added.)href="#_ftn3" name="_ftnref3" title="">[3]

Instead, the court should have
applied the one-fifth deduction only to the cost of printing the
respondent/cross-appellant’s brief. The
parties and the record do not clearly identify the cost of printing that
particular brief, but the sum of two invoices not attributable to the reply
brief is $447.47 ($120.07 plus $327.40).
On this basis, the one-fifth deduction for the
respondent/cross-appellant’s brief should have been $89.49. This sum of $89.49, plus $68.77 as a
deduction for the reply brief’s printing costs, amounts to a total deduction of
$158.26. Lee is therefore entitled to
have the printing costs taxed by $158.26 instead of $103.20, a difference of
$55.06.

B.
Sanctions Motion

Lee contends the court erred in
failing to sanction Salvio in connection with its efforts to recover $650 in
reporters’ transcript costs.

Under Code of Civil Procedure
section 128.7, a court “may” impose a sanction against an attorney or party who
has presented a pleading, petition, notice of motion, or similar paper that is
frivolous or otherwise fails to meet the standards set forth in Code of Civil
Procedure section 128.7, subdivision (b), and the party has failed to withdraw
the paper within 21 days after service of the opponent’s notice of motion for
sanctions. (Code Civ. Proc., § 128.7,
subd. (c); see Kojababian v. Genuine Home
Loans, Inc. (2009) 174 Cal.App.4th 408, 422.) We review for an abuse of discretion. (Kojababian,
supra, at pp. 420-422.)href="#_ftn4"
name="_ftnref4" title="">[4]

Here, the court cited numerous
reasons for its denial of Lee’s sanctions motion, including that Salvio’s
failure to withdraw the $650 cost request earlier had led to “little or no
additional expense to Lee, and to no further delays in the case,” since “[t]his
item was one of many items both sides were disputing in their respective cost
bills following the appeals.” In fact,
Lee did not demonstrate what if any additional expense or delay resulted from
Salvio’s tardiness in retracting the request for reporters’ transcript costs in
particular, or how such expense or delay would support a sanctions award to Lee
in any particular amount. Lee’s
declaration in support of his sanctions motion merely stated: “I have and will have incurred reasonable and
necessary charges of my attorney, John Hartford, for the research and
preparation of this motion for sanctions and for filing the motion to
strike/tax Salvio Street’s requested transcript costs, reviewing its opposition
and preparing reply papers in the sum of no less than $1,500.00. The filing costs for each motion is $40.00
each for a total of $80.00 in filing costs.”


Contrary to Lee’s assertion, the
trial court did not state or imply that it was refusing to consider issuing a
lesser sanction or was unaware it could.
To the contrary, the record indicates that the court carefully
considered the circumstances and exercised its discretion in deciding not to
impose sanctions, and that Lee had not provided evidence or argument sufficient
for an award of a lesser sanction. Based
on the arguments and evidence presented to the court, Lee has failed to
establish a prejudicial abuse of discretion.

III. DISPOSITION

The trial court’s order as to Lee’s
motion to strike or tax costs is reversed only as to the costs allowed for the
printing of appellate briefs: in this
regard, the trial court is directed to tax the amount Salvio requested by $158.26
rather than $103.20; the order is otherwise affirmed. The trial court’s order denying Lee’s motion
for sanctions is affirmed. Each party to
bear its own costs on appeal.







NEEDHAM,
J.





We concur.







SIMONS, Acting P.
J.







BRUINIERS, J.