Betchart v. Ludwig
Betchart
Filed 3/21/13 Betchart v. Ludwig Betchart 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opinion has not been certified for publication or ordered published for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
WALDTRAUT BETCHART,
Plaintiff
and Respondent,
v.
LUDWIG BETCHART, INC.
Defendant;
ANTHONY BETCHART,
Intervener
and Appellant.
A131137
(Alameda
County
Super. Ct. No.
HG08414575)
Intervener
Anthony Betchart (Tony) appeals from an order that awarded him $5,370.65 in
costs after he requested the sum of $20,816.87 in costs. He contends that he was entitled to costs
that the trial court disallowed. We are not persuaded by Tony’s arguments and
affirm the trial court’s costs order.
Waldtraut
Betchart (Wally) was married to Ludwig Betchart (Ludwig), and they had six
children. One of the children is
Tony. Wally and Ludwig had a family
business, Ludwig Betchart, Inc. (LBI), which rents out heavy construction
equipment.
Ludwig
died in 2003. Two years later Wally, who
had been actively involved in the family business, made Tony president and a 51
percent shareholder of LBI. Wally, who
was 75 years old at that time, retained a 46 percent ownership interest. Another son held a three percent ownership
interest.
On October 10,
2008, Wally filed a verified complaint against LBI seeking dissolution under
Corporations Code section 1800. Wally
alleged that Tony had engaged in a course of self-dealing, consisting of
siphoning off hundreds of thousands of dollars in cash and transferring
equipment belonging to LBI to his wholly-owned companies. LBI, through its attorney, J. Michael Brown,
answered the complaint, denied the material allegations, and filed a
cross-complaint against Wally.
On December 14,
2009, the trial court granted Wally’s request to appoint a receiver to take
over the management and operation of LBI.
Subsequently, after a hearing, on January 21, 2010, the court confirmed
the appointment of a receiver.
Tony, through his
attorney, Brown, filed a request to intervene.
On February 25, 2010, the trial court granted Tony’s request to
intervene. On March 1, 2010, Tony filed
his amended complaint in intervention.
On March 12, 2010,
the trial court granted the application of the receiver to discharge Brown as
the attorney for LBI. The court
authorized the receiver to retain new counsel, Brad C. Brereton, to represent
the corporation for all pending litigation.
Brown continued to provide legal representation to Tony.
The trial was
scheduled to start on May 21, 2010. On
that date, Brown appeared on behalf of Tony, Brereton appeared by conference
call for LBI, and Wally had her own counsel.
Only counsel for Tony and Wally were present for the court trial on May
24 through May 27, June 2, July 8, and July 12.
On June 1, 2010, Brereton appeared on behalf of the receiver for LBI and
counsel for Wally and Tony appeared.
The court filed
its statement of decision on September 3, 2010.
The court found that Wally had failed to prove by a
claims against Tony, and that she had not proved that LBI should be
dissolved. The court entered its
judgment on September 15, 2010.
On September 24,
2010, Brown filed a memorandum of costs,
asking for a total of $20,816.87. On
October 13, 2010, Wally filed a motion to tax costs. She requested that the following costs not be
allowed: filing and motion fees in the
amount of $320 on the grounds that intervener Tony did not file an answer;
mileage costs for the deposition in the amount of $324 on the grounds that
there was no supporting documentation; expert witness fees in the amount of
$1,050 on the grounds that the fee was not properly chargeable; deposition fees
of $6,502.22 on the basis that the depositions occurred before Tony was a party
to the lawsuit; court-ordered transcripts in the amount of $250 on the ground
that there were no court-ordered transcripts for the dates identified; and
mediation fees in the amount of $7,000 on the ground that the mediation
occurred when Tony had not yet become a party to this action.
The trial court
ordered the parties to appear for a hearing on the motion to tax costs. At the hearing on December 2, 2010, Brown
argued that the costs were for the work he had done while representing LBI and
his legal work for Tony. The court
explained that there was no statutory basis for the $324 mileage cost
associated with the deposition or the $1050 expert witness fee. The court added that the $6,502.22 deposition
costs and the $7,000 mediation fees were not the obligation of Tony, as an
individual. The court noted that the
$250 “court ordered transcripts were not in fact court ordered.†Counsel for Wally argued that the mediation
fees also were not recoverable because the court did not order mediation.
Brown admitted
that Tony was not a party at the time the mediation
and deposition costs were incurred, but maintained that he was entitled to
the fees because he represented LBI at that time. Brown acknowledged that the transcripts were
not court ordered, but insisted that the court wanted the transcripts for
consideration. Brown conceded that he
was not entitled to the expert witness fees.
Counsel for Wally responded that LBI did not make a motion for costs and
there was no statutory basis for awarding fees to Brown as counsel for Tony
when the legal work was done before Tony had become a party in the action.
On December 6,
2010, the court issued its order granting in part Wally’s motion to tax
costs. The court ruled that “all amounts
are taxed or disallowed except for five-thousand, three-hundred and seventy
dollars and sixty-five cents ($5,370.65) now awarded to†Tony.
On February 8,
2011, Tony filed a timely notice of
appeal from this order.
After the notice
of appeal was filed, on February 23, 2011, Breton, counsel for LBI, filed a
memorandum of costs seeking costs in the amount of $14,146. On May 3, 2011, Brown substituted in for
Brereton as the counsel for LBI.
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On June 3, 2011,
Wally filed a motion to tax the costs of LBI.
In addition to objecting to specific costs, Wally asserted that LBI had
waived its right to recover costs by failing to comply with the mandatory
deadline for submitting a memorandum of costs.
Brown, as counsel for LBI, filed the opposition to Wally’s motion to tax
costs.
The trial court
filed its order on August 2, 2011, granting Wally’s motion to tax costs. The court found that LBI did not provide the
court with information to substantiate the claimed cost of $320 for filing and
motion fees. The court also found that
LBI did not provide the court with sufficient facts or details to support the
reasonableness of the total amount of $6,826 deposition costs or any lesser
amount, and there was no documentation establishing that these charges were related
to the current action rather than to other pending actions. The court noted that the mediation was not a
court-ordered mediation and LBI did not provide the court with sufficient facts
or details to support the reasonableness of the total amount of $7,000 or any
lesser amount. The court added, “The
mediation attempted to resolve several pending actions between the parties.â€
On November 29,
2011, this court granted Wally’s unopposed request for judicial notice of
documents in the trial court that were not included in the appendix submitted
by Tony. Subsequently, Tony filed a
request for judicial notice of additional documents in the trial court and this
court deferred any decision on this request.
We hereby grant Tony’s request for judicial notice of the three
documents in the trial court related to LBI’s requests to tax costs.
Tony requested
costs in the amount of $20,816.87, and the court awarded him $5,370.65. Tony maintains that this was error. We review the trial court’s award of costs
for an abuse of discretion and the court abuses its discretion if it refuses to
award costs mandated by the statute.
(See Heller v. Pillsbury, Madison
& Sutro (1996) 50 Cal.App.4th 1367, 1395.)
Preliminarily,
Tony argues that we “must assume that the trial court’s order sustained all the
objections [he] made to the costs in the motion to tax costs.†His argument has no merit. Firstly, Tony fails to make any citation to the
record and never specifies what objections he made. Secondly, he has not demonstrated that he
requested any ruling on his objections.
The transcript of the hearing on Tony’s motion to tax costs establishes
that he made no such request, and there was no discussion of any objections. Consequently, contrary to Tony’s argument, we
presume the court denied his objections and any objections he may have had were
waived. (See, e.g., Dodge, Warren & Peters Ins. Services, Inc. v. Riley (2003) 105
Cal.App.4th 1414, 1421.)
“Except as
otherwise expressly provided by statute, a prevailing party is entitled as a
matter of right to recover costs in any action or proceeding.†(Code Civ. Proc., § 1032, subd. (b).)
prevailing party. The trial court did
award him costs but he objects to the amount awarded, and claims that the court
disallowed costs that he should have received.
Tony argues that
the trial court rejected his request for costs on the basis that the fees were
incurred before he became a party in the lawsuit. He maintains that the court accepted all the
costs as necessarily incurred as “[a] verified memorandum of costs is prima
facie evidence that costs claimed have been necessarily incurred.†(Jeffers
v. Screen Extras Guild, Inc. (1955) 134 Cal.App.2d 622, 623.)
In arguing that
Brown was entitled to ask for the costs of litigation for both Tony and LBI
even though Brown was not LBI’s counsel at the time the request for costs was
made, Tony relies on Gustafson v. Dunman,
Inc. (1962) 204 Cal.App.2d 10 (Gustafson). In Gustafson,
four individual defendants filed a cost bill, and the appellate court held
that “it was not shown†that the defendants were “not united in interest†and
therefore the costs should have been apportioned “in the discretion of the
court among the parties ‘on the same or adverse sides’ [citation].†(Id. at
p. 14.)
In the present
case, the issue is not apportionment. No
attorney in Gustafson—as is the
situation in the present case––was attempting to collect costs on behalf of
defendant who was not that attorney’s client at the time the request was
made.
Here, the party
that allegedly incurred the costs, LBI, failed to submit a timely memorandum of
costs. (See Cal. Rules of Court, rule
3.1700(a)(1).) The trial court properly
disallowed costs requested by Tony that were incurred when Tony was not a party
to the lawsuit. Brown may have completed
this work on behalf of LBI but Brown was not counsel for LBI when the
September 24, 2010. Brown did not
substitute in for Brereton as the attorney for LBI until May 3, 2011.
Allowable costs
are identified in section 1033.5, subdivision (a) and costs not allowed are set
forth in this same statute at subdivision (b).
Fees of experts not ordered by the court are, as Tony conceded, clearly
not permitted. (§ 1033.5, subd.
(b)(1).) Accordingly, the court properly
rejected the claim for $1050 for expert witness fees. Additionally, “[t]ransciprts of court
proceedings not ordered by the court†are not allowed. (1033.5, subd. (b)(5).) Tony maintains that the court requested the
transcript, but he cites no such order in the record establishing this. Thus, the fee of $250 that he claimed for
court-ordered transcripts was not permitted under the statute.
Tony also contends
that he was entitled to the costs of $324 for his mileage to the
depositions. The trial court, however,
found that this travel to the deposition was done before Tony was a party to
the lawsuit. Tony does not dispute this
but claims that he is entitled to these costs as LBI was a party to the lawsuit
and his attorney was counsel for LBI at that time. As already discussed, we reject this
argument. In his brief in this court,
Tony does not raise any other specific challenge to the trial court’s ruling on
his claim for $6,502.22 in deposition costs.
He has therefore not shown that these costs were incurred after he
became a party to the action or that these costs were associated with the
present action rather than other pending lawsuits. Accordingly, Tony has failed to establish
that the court abused its discretion when it taxed his requested deposition
costs.
Tony also
challenges the trial court’s ruling that he was not entitled to the cost of
mediation. Subdivisions (a) and (b) of
section 1033.5 do not mention mediation.
However, the court has the discretion to awarded costs in a reasonable
amount if the costs are “reasonably necessary to the conduct of the litigation
rather than merely convenient or beneficial to its preparation.†(§ 1033.5, subds. (c)(2) & (3).)
In urging us to
find that the trial court abused its discretion when deducting the costs
associated with the mediation, Tony cites Gibson
v. Bobroff (1996) 49 Cal.App.4th 1202.
The court in Gibson held that
an award of mediator fees is not statutorily prohibited. The Gibson
court concluded that a court-ordered, unsuccessful mediation, should be
awarded after trial to a prevailing party at the sound discretion of the trial
court. (Id. at p. 1209.) The court,
however, declined to decide whether a prevailing party after a trial is
entitled to costs when the mediation is voluntary and unsuccessful. (Ibid. at
fn. 7.)
In the present
case, the court did not order mediation, and the mediation occurred before Tony
became a party to this action.
Furthermore, it is clear from the trial court’s later order regarding
costs requested by LBI that the mediation was an attempt to resolve several
pending actions between the parties.
Given that the mediation involved several cases, we conclude that Tony
has failed to show that the mediation was reasonably necessary to the present
litigation.
Tony has not
established that the costs at issue were recoverable as a matter of law. Furthermore, we conclude that the trial court
acted within its discretionary powers when it awarded Tony costs in the amount
of $5,370.65 rather than his requested amount of $20,816.87.
The order awarding costs is affirmed. Tony is to pay the costs of appeal.
_________________________
Lambden, J.
We concur:
_________________________
Kline, P.J.
_________________________
Haerle, J.
LBI for $15,234.10 was issued and, shortly thereafter, a levy of Wally’s bank
account was issued. Wally filed a motion
to vacate the writ of execution. On May
19, 2011, the court issued an order that the writ was not to be enforced and
all seized funds were to be released to counsel for Wally to hold in trust
pending further order of the court.
to the Code of Civil Procedure.
