Turner v.
Advocacy Program
Filed 2/27/13 Turner v. Cal. Parole Advocacy Program CA1/2
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opinion has not been certified for publication or ordered published for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
TWO
STEPHEN B.
TURNER,
Plaintiff and Appellant,
v.
CALIFORNIA
PAROLE ADVOCACY PROGRAM et al.,
Defendants and Respondents.
A135929
(Alameda
County
Super. Ct.
No. RG 11591586)
Appellant,
appearing in pro per, appeals from a cost award in the amount of $1,270 entered
by the Alameda
County Superior Court after appellant had voluntarily dismissed a 12-count
action he had filed against respondents, the California Parole Advocacy Program
(hereafter CPAP) and its Northern California Director, Andrew Walker. The action alleged that those respondents had
inadequately represented him in a parole revocation hearing which was
determined adversely to him. We find
this appeal to be without merit and, indeed, bordering on the frivolous. We thus affirm the cost award order of the
superior court.
In
April 2011, appellant, at the time on parole for prior, albeit unstated,
offenses, was staying in a motel in Hayward, California. Three agents of the agents from the
California Department of Adult Parole Operations arrived at his room to,
allegedly, perform a “parole sweep.†The
agents allegedly found pornographic material on a computer in his room,
although appellant maintained that he had no knowledge of how that material got
onto his computer. Nonetheless, he was
detained on a parole revocation charge.
Appellant
retained CPAP to assist him in his forthcoming parole revocation hearing. CPAP is, according to appellant’s
since-dismissed complaint, an organization “affiliated with the University
of Pacific, McGeorge School of Law
and has a contract with the State of California
to provide legal representation to parolees charged with parole-revocation
charges. [Respondent] Andrew S.
Walker . . . is believed by the plaintiff to be the director of
[CPAP] for Northern California.â€
On
May 13, 2011, appellant had
a pre-revocation hearing before a Deputy Commissioner in Dublin,
California.
Appellant was represented by an attorney apparently retained by
CPAP. At the hearing, appellant
allegedly requested that (1) he be given a polygraph examination to prove his innocence
and (2) his computer be “forensically tested.â€
The Commissioner allegedly told appellant that neither alternative could
be performed by the State, and his attorney allegedly advised him that CPAP
“did not have the money to test his computer†and that even if they did the
“results of the testing could possibly take up to†three months. Again, according to his complaint against
CPAP, he “therefore accepted a parole-revocation offer†from the Commissioner
for six-months eligible for half-time credit, but allegedly did so “under
duress.â€
On
August 31, 2011, appellant
filed and served CPAP and Walker (and other named defendants who are not
respondents in this appeal) with a complaint alleging 12 causes of action. These included violation of due process under
both the federal and California
Constitutions, breach of fiduciary duty, gross negligence, negligence,
ineffective assistance of counsel, negligent infliction of emotional distress,
intentional infliction of emotional distress, reckless misconduct, malice,
violation of the exclusionary rule, breach of the standard duty of care, and
negligence per se.
Respondents
apparently filed a demurrer and motion to strike this complaint on October 3,
2011.
complaint against the same parties on November 7, 2011. On December 5, 2011, appellant filed a
request for voluntary dismissal of his action without prejudice, a dismissal
which was “entered as requested†on that date.
Apparently, he subsequently refiled essentially the same action in
federal court.
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On,
apparently, December 13, 2011, respondents filed a memorandum of costs, seeking
(again, apparently) the $1,270 award later authorized by the trial court. On February 14, 2012, after the deadline for
filing such a motion had passed (see Cal. Rules of Court, rule 3.1700(b)(1)),
appellant filed a motion to strike respondents’ memorandum of costs. On March 28, 2012, the trial court denied
appellant’s motion and entered a judgment for those costs against him. Thereafter, appellant apparently filed, and
respondents apparently opposed, a motion to set aside that judgment.
July 3, 2012.
Appellant
filed a timely notice of appeal on
July 10, 2012.
For
several separate and distinct reasons, appellant’s appeal fails. First of all, as one of our sister courts has
stated: “A costs award is reviewed on
appeal for abuse of discretion.
[Citations.] This means we must
determine ‘whether the trial court exceeded the bounds of reason.’ [Citation.]â€
(El Dorado Meat Co. v. Yosemite
Meat & Locker Service, Inc. (2007) 150 Cal.App.4th 612, 617.) As other courts have framed it, “[T]he term
judicial discretion implies absence of arbitrary determination, capricious
disposition, or whimsical thinking. It imports the exercise of discriminating
judgment within the bounds of reason. To exercise the power of judicial
discretion, all the material facts must be known and considered, together also
with the legal principles essential to an informed, intelligent and just
decision. [Citation.]†(
771, 796; see also Todd v. Thrifty Corp. (1995)
34 Cal.App.4th 986, 990.) Among many other
things not contained in the record provided us is the cost bill itself, a bill
amounting, as noted above, to $1,270.
Without such, it borders on the impossible for this court to determine
that there was an abuse of discretion for the trial court to deny appellant’s
motion to strike the cost bill filed by respondents.
Second,
even per his brief to us and the sparse clerk’s transcript provided us,
appellant’s motion to strike respondents’ cost bill was untimely. As noted above, California Rules of Court,
rule 3.1700(b)(1), provides that “[a]ny notice of motion to strike or to tax
costs must be served and filed 15 days after service of the cost
memorandum. If the cost memorandum was
served by mail, the period is extended as provided in Code of Civil Procedure
section 1013.†The case law is clear
that this provision means what it says and that a failure to file a timely
challenge to a cost bill waives the right to contest it later on appeal. (See, e.g., Douglas v. Willis (1994) 27 Cal.App.4th 287, 289-290;
Cal.App.3d 1442, 1447; 7 Witkin, Cal. Procedure (5th ed. 2008) Judgment,
§ 145, p. 679.)
In
his briefs to us, appellant states that, the day before the cost bill was filed
by respondents, i.e., on December 12, 2011, he was arrested for another
“alleged parole violation†and, on December 15, 2011, “transferred to Santa
Rita County Jail in Dublin, California,†where he “was incarcerated for approx.
7 weeks†and “housed in an isolation cell with limited outside communicationâ€
and hence “never received notice from defendant’s [sic] counsel regarding their
cost memorandum.†Thus, he continues, he
had “no notice or knowledge whatsoever of defendants’ cost memorandum,†and
learned about it after his release from his ex-wife. Appellant argues that this state of affairs
triggers the doctrine of “equitable tolling†under which the time limits of the
applicable court rule should not have been applied.
However,
even assuming that this claimed state of affairs would excuse appellant from
filing a motion to tax costs within the required time period, appellant has
provided us with no record whatsoever verifying his claims of incarceration and
inability to receive or learn of the filing and service of respondents’
memorandum of costs. In the trial court,
appellant did submit a declaration claiming that he had been incarcerated from
December 12, 2011, until January 22, 2012, and thus he “never received the
defendants’ cost memorandum . . . nor did I have any knowledge
of its existence at any time while in custody.â€
However, appellant only provided the trial court with his own
declaration on this subject, with absolutely no supporting evidence of either
his incarceration or other legally-cognizable unavailability. Nor does he provide any evidence supporting
his assertion that his confinement in jail made it impossible for him to learn
about the filing of respondents’ cost bill, i.e., the address to which that
cost bill was sent by appellants, the unavailability of any forwarding process,
etc. As another appellate court has
held, “the losing party has the burden to
present evidence and prove that the claimed costs are not
recoverable.†(Seever v. Copley Press, Inc. (2006) 141 Cal.App.4th 1550, 1557,
emphasis supplied.) Appellant failed to
do so here, and thus his argument regarding the timeliness of his motion fails.
Third,
under Code of Civil Procedure section 1032, subdivision (a)(4), respondents
were clearly the prevailing parties.
Contrary to appellant’s lengthy arguments in his briefs,
neither the federal Constitution nor the “preemption doctrine†dictates, or
even supports, the concept that California law is not controlling here. And that law states very clearly that a
“prevailing party†includes one in whose favor a voluntary dismissal has been
entered. (See, e.g.,
Cal.App.4th 132, 150; Catello v. I.T.T.
General Controls (1984) 152 Cal.App.3d 1009, 1012-1014;
21 Cal.3d 218, 221.)
IV. DISPOSITION
The
trial court’s judgment awarding respondents their costs is affirmed.
_________________________
Haerle,
Acting P.J.
We concur:
_________________________
Lambden, J.
_________________________
Richman, J.
“apparently†here—and also hereafter regarding other pleadings respondents
state were filed—because neither party has provided us a copy of the referenced
pleading in either the clerk’s transcript or any appendix. Indeed, in their brief to us, and contrary to
California Rules of Court, rule 8.204(a)(1)(C), respondents provide us with no
citations whatsoever to the clerk’s transcript nor, as noted, did they file any
appendix with this court.
respondents’ brief to us, federal District Judge Hamilton dismissed this action
with prejudice without any appearance
by the named defendants. Appellant does
not dispute this fact in his reply brief.
