Filed 3/16/20 Arambula v. Irvine Unified School District CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

ALLEN ARAMBULA,

Plaintiff and Appellant,

v.

IRVINE UNIFIED SCHOOL DISTRICT et al.,

Defendants and Respondents.

G057396

(Super. Ct. No. 30-2016-00859803)

O P I N I O N

Appeal from an order of the Superior Court of Orange County, James Di Cesare, Judge. Affirmed.

Allen Arambula, in pro. per., for Plaintiff and Appellant.

Atkinson, Andelson, Loya, Ruud & Romo, Sharon J. Ormond and Jacquelyn T. Morenz for Defendants and Respondents.

* * *

 

This is an appeal from an order awarding defendants Irvine Unified School District and its Board of Education (collectively the District) $2,156.39 in statutory costs after successfully defending a lawsuit by plaintiff Allen Arambula, an employee who alleged he was owed compensation under the Education Code.

Arambula lost at trial, recovering nothing, and in the companion case (Arambula v. Irvine Unified School District et al. (Mar. 16, 2020, G057121) [nonpub. opn.]), we affirmed the judgment. While Arambula offers every reason under the sun why he should not be liable for costs, his arguments either have no basis in law or fail to demonstrate the trial court abused its discretion. We therefore affirm the costs award included in the judgment.

I

FACTS

The underlying facts are set forth in the companion case. As relevant here, the trial court awarded judgment to the District, which included an award of costs according to proof. The District then filed a memorandum of costs and supporting worksheet. Arambula filed a motion to tax (captioned as a motion to strike) costs, the District opposed, and Arambula filed a reply brief.

The court’s order granted Arambula’s motion in part and denied it in part. We shall discuss the details as necessary below. Arambula now appeals.

II

DISCUSSION

A. Specific Items

“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).) Costs incurred must be reasonably necessary to the conduct of the case. (§ 1033.5, subd. (c)(2); Charton v. Harkey (2016) 247 Cal.App.4th 730, 738-739.) Allowable costs include those incurred for taking depositions (§ 1033.5, subd. (a)(3)(A)), service of process (§ 1033.5, subd. (a)(4)), ordinary witness fees (§ 1033.5, subd. (a)(8)), court reporter fees established by statute (§ 1033.5, subd. (a)(11)), and trial exhibits, including photocopies, enlargements, and costs associated with electronic formatting (§ 1033.5, subd. (a)(13)).

“Whether a party falls within one of the . . . categories authorizing the recovery of costs as a matter of right is a question of law we review de novo. [Citations.] We otherwise review a trial court’s cost award for abuse of discretion. [Citations.] For example, we review a trial court’s determination on which costs are reasonably necessary and reasonable in amount under the abuse of discretion standard.” (Charton v. Harkey, supra, 247 Cal.App.4th at p. 739.)

1. Deposition Costs

The District sought, and the trial court allowed, $1,440.55 in costs for taking Arambula’s deposition. Arambula argues this cost should have been taxed because the deposition “was merely convenient and not reasonably necessary for the conduct of the litigation and lacks sufficient proof.”

The trial court disagreed, stating: “It was reasonable for the Defendants to take the Plaintiff’s deposition. It would be hard-pressed to conceive of a more important deposition for the Defendants to take in this case. Written discovery is not a substitute for a deposition. The discovery tools serve different functions. Written discovery benefits the propounding party because it is a product of the responding party’s time and effort to gather information in written responses, that were prepared over time. A deposition serves the essential purpose of enabling litigants and attorneys to assess the witness’ credibility, disposition, and to receive the benefit of unrehearsed answers to on-the-spot questioning. Both are essential tools for the preparation of a case and the Court finds that the Plaintiff’s deposition was a reasonable and necessary cost here.”

While Arambula pays lip service to the concept that the burden of proof to demonstrate the deposition was unnecessary belongs to him, he simply asserts the deposition “was not necessary but merely convenient or beneficial to the conduct of the litigation and not prudently sought by respondents.” The case law he cites on this point is either misplaced or simply cited inaccurately.

For example, he cites Fellowship of Humanity v. County Alameda (1957) 153 Cal.App.2d 673, 702, for the proposition that “the determination of whether a deposition was necessary to the conduct of the litigation because it was believed that the deposed witness would not be available at trial, in ruling on allowance of the cost of the deposition taken, the trial court may reasonably determine that the deponent’s testimony, although relevant, the deposition was unnecessary and disallow the item of cost.”

It is true that in that case the trial court disallowed certain deposition costs, but what Arambula misses completely is that the appellate court upheld the trial court’s decision under the abuse of discretion standard, the opposite of the outcome Arambula seeks here. To demonstrate an abuse of discretion, Arambula must show that no reasonable court could have ruled the way the trial court did here. “The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.” (Shamblin v. Brattain (1988) 44 Cal.3d 474, 478-479.) Arambula has not cited any case where allowing the cost of taking the deposition of the opposing party was found to be an abuse of discretion. He has failed to establish error.

2. Witness Costs

The court permitted $37.64 in witness costs for a witness, Susana Fernandez, who did not ultimately testify, allowing the statutory witness fee of $35 and mileage. Arambula argues that “[t]he trial court abused its discretion by granting any amount in costs for the attendance of a witness at trial whose testimony was not prudently planned by respondents and was incurred in bad faith given that the record indicates that the witness did not make an appe[a]rance.” He claims the costs were not reasonably necessary and there was insufficient evidence to prove the witness appeared at trial.

Arambula ignores that a verified memorandum of costs is prima facie evidence of the propriety of the items listed on it. The burden then shifted to him, as “‘the party challenging these costs to demonstrate that they were not reasonable or necessary.’” (Bender v. County of Los Angeles (2013) 217 Cal.App.4th 968, 989.) The costs for this witness were included both in the District’s verified memorandum and the accompanying worksheet. In its opposition to Arambula’s motion to strike (tax) costs, the District explained that Fernandez attended the trial one day in anticipation of being called during the District’s case-in-chief. She was listed on the witness list and issued a subpoena to attend. Ultimately, Fernandez was not called as a witness because the court granted the District’s motion for judgment before it presented its case-in-chief.

Arambula claims there was a lack of “substantial proof” to support the cost, but he neglects to mention that the District submitted a declaration by its attorney, Jacquelyn Takeda Morenz, under oath and penalty of perjury, stating that Fernandez was on the witness list, under subpoena, and attended one day of trial in anticipation of being called during the District’s case-in-chief. Morenz averred Fernandez was not ultimately called because the court granted the District’s motion for judgment.

This was competent, admissible evidence, and Arambula offered no evidence to the contrary. Thus, Arambula’s assertion that the District sought the costs in “bad faith” is misplaced. The court properly allowed $37.64 in witness fees and mileage and did not abuse its discretion.

3. Official Court Reporter Fee

The District was charged $625 as its share of official court reporter fees. The trial court found the fee “was a necessary expense, and further, the work involved and the cost will aid the appeal.” Arambula, apparently, was given a waiver from payment of his share of the fees based on financial indigence.

Arambula’s only argument on this point is that because his portion of the fee was waived, he should be relieved of responsibility for the District’s cost as well. The purpose of the fee waiver, as the trial court pointed out, was to permit Arambula equal access to the court and a trial. Once he had his trial, however, there is no authority for relieving him of costs the prevailing party is entitled to as a matter of right. We find no error.

4. Exhibits

Arambula next claims the trial court abused its discretion by permitting $53.20 in exhibit costs under the discretionary costs provision, section 1033.5, subdivision (c). His argument boils down to an assertion that these items were not reasonably necessary or helpful to aid the trier of fact. He contends that costs for unused exhibits are not recoverable.

As the trial court pointed out: “Parties cannot predict how the trial will develop and it would be unreasonable for parties to not fully prepare for a trial.” We agree, and contrary to Arambula’s claims, this conclusion is well supported by the case law the trial court cited. In Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 856, the court stated: “Although the Department did not use the majority of its exhibits at trial, nothing indicates it could have anticipated that they would not be used. An experienced trial judge would recognize that it would be inequitable to deny as allowable costs exhibits any prudent counsel would prepare in advance of trial.” (See Applegate v. St. Francis Lutheran Church (1994) 23 Cal.App.4th 361, 363-364 [exhibit costs permitted after plaintiff dismissed the case on the day of trial].)

Here, the District could not have reasonably anticipated that its motion for judgment would be granted after Arambula finished his case-in-chief, but that is how events played out. The District was still required to prepare for trial, including presenting its own case. Part of that preparation reasonably included the exhibits it intended to use. Accordingly, we find no abuse of discretion in permitting this item of costs.

 

5. Alleged “New Evidence” on Appeal

In his reply brief, Arambula asserts that he never received, during proceedings in the trial court, three exhibits that were attached to Morenz’s declaration in support of the opposition to strike (tax) costs. He claims the District was attempting to introduce new evidence on appeal (apparently by falsifying the trial court records). There is no admissible evidence this is true; he cites only to his opening brief, which does not make such an allegation. (It says only “Repondents allege to have attached an invoice to a declaration in their opposition to appellant’s motion to strike.”)

Thus, there is no competent evidence he did not receive the exhibits. Further, if he did not, it was an issue to address before the trial court, not for the first time on appeal. He does not claim he did not receive Morenz’s declaration (which he included in his own appendix). The declaration mentions the three exhibits three separate times. If he did not receive the exhibits, for some reason, it was his responsibility to raise the issue with the trial court at the time the motion was considered.

“‘[I]t is fundamental that a reviewing court will ordinarily not consider claims made for the first time on appeal which could have been but were not presented to the trial court.’ Thus, ‘we ignore arguments, authority, and facts not presented and litigated in the trial court. Generally, issues raised for the first time on appeal which were not litigated in the trial court are waived.’” (Newton v. Clemons (2003) 110 Cal.App.4th 1, 11, fn. omitted.) Further, we do not consider issues raised for the first time in the reply brief. (Schubert v. Reynolds (2002) 95 Cal.App.4th 100, 108.)

B. Inability to Pay

Arambula next contends the trial court abused its discretion in denying the motion to strike (tax) costs based on his inability to pay. We assume without deciding that the court had such discretion, because it exercised it in reaching its decision: “Assuming the Court has discretion, this (respectfully) does not appear to be a situation where the equities warrant denial of the within costs nor a further reduction considering the fair and reasonable amounts involved and the Plaintiff’s situation and case. The plaintiff litigated the case quite actively for a span of two+ years with many law and motion matters. Defendants have disposed of the claims on the merits, through dispositive motions and a trial. The Plaintiff is continuing to litigate the case through the appeal and other possible appeals that may follow. Under the circumstances, the Court finds that the Defendants are entitled to the present costs under all of the relevant circumstances including the Plaintiff’s financial situation. The Court will fully consider any motions, however, as to the appropriate manner or means for enforcing or collecting the costs.”

Arambula offers no California law to support his argument that this ruling was an abuse of discretion, and we find none.

C. Pending Appeal

Arambula claims the District should not recover any costs while an appeal is pending in the underlying matter. As the appeal is no longer pending in the underlying case, this issue is moot.

D. Arambula’s Costs

The heading of this section states Arambula “[s]hould recover the costs incurred in the pursuit of the trial court’s order denying in part appellant’s motion to strike.” (Capitalization omitted.) Then he goes on to say he is entitled to costs on appeal if he prevails. He seems to be confusing the questions of having partially succeeded on his motion to tax in the trial court and winning the instant appeal. In any event, there is no legal basis for this court to award any costs incurred in the trial court, and as Arambula is not the prevailing party on appeal, given that we have rejected each argument, he is not entitled to costs under section 1032, subdivision (b).

III

DISPOSITION

The court’s order is affirmed. The District is entitled to its costs on appeal.

MOORE, ACTING P. J.

WE CONCUR:

ARONSON, J.

GOETHALS, J.