Filed 7/31/20 Martinez v. Kernan CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

MANUEL MARTINEZ,

Plaintiff and Appellant,

v.

SCOTT KERNAN et al.,

Defendants and Respondents.

A158176

(Del Norte County Super. Ct. No. CVPT16-1224)

In 2013, appellant Manuel Martinez, a prisoner at Pelican Bay, received a disciplinary violation arising from his participation in a hunger strike at the prison. Martinez filed a habeas corpus petition in Del Norte County Superior Court, which was denied. (In re Manuel Martinez on Habeas Corpus, case No. ITCPB 14-5136.) He then filed a similar petition in this court, which we also denied. (See In re Manuel Martinez on Habeas Corpus, First District Court of Appeal, Division Two, Case No. A149272.)

On July 21, 2016, Martinez filed in Del Norte County Superior Court a petition for writ of administrative mandamus challenging the 2013 disciplinary violation. Respondents demurred to the petition, and by order of December 2, the superior court sustained the demurrer without leave to amend, and denied the petition. However, in that same order the superior court ruled that, considering the petition as one for habeas corpus, the court would dismiss it without prejudice to Martinez seeking relief in another habeas petition based on a change in the law after exhausting his administrative remedies.

But Martinez did not do that.

Rather, Martinez appealed the superior court’s order sustaining the demurrer without leave to amend. Respondents moved to dismiss the appeal on the basis it was moot, as the 2013 disciplinary violation had been expunged from Martinez’s central file. By order of January 17, 2018, we dismissed the appeal as moot, and issued our remittitur on March 19, 2018, awarding costs to respondents. (See Cal. Rules of Court, rule 8.278(a)(2) [respondent is prevailing party and entitled to costs if appeal is dismissed].)

Martinez moved to recall and amend the remittitur, contending he, not respondents, was the prevailing party on appeal, and thus entitled to costs. And on May 10, we issued an order directing the clerk to issue a new remittitur “reflecting that each party shall bear their own costs on appeal.” (Cal. Rules of Court, rule 8.278(a)(5) [in the interests of justice, court may also “award or deny costs as it deems proper”].)

On June 13, 2019, Martinez filed in Del Norte County Superior Court a motion seeking costs in the amount of $545.80: $435.00 for the filing fee on his petition for mandamus; $25.80 for copies of exhibits; and $85.00 for the court call appearance on November 18, 2016.

On June 17, 2019, the superior court entered its order denying Martinez’s motion, an order that read in its entirety as follows: “The motion seeking costs as prevailing party received by the petitioner, Manuel Martinez, is denied. [¶] See enclosed filed remittitur.”

On August 19, Martinez filed his notice of appeal from that order. And in his notice designating record on appeal, Martinez checked the box that he elected to proceed “WITHOUT a record of the oral proceedings in the superior court. I understand that without a record of the oral proceedings in the superior court, the Court of Appeal will not be able to consider what was said during those proceedings in determining whether an error was made in the superior court hearings.”

Following Martinez’s designation of the record, respondents filed a motion to augment, to put before us all that had occurred, a motion we grant.

DISCUSSION

Martinez’s opening brief has one argument, an argument set forth in less than two pages: the “trial court abused its discretion in not determining who is the prevailing party to award costs.” The argument has two sub-parts: (1) this court’s direction that each party bear its own costs “has no bearing on the trial court’s determination”; and (2) Martinez was the prevailing party “because he realized his litigation objective.”

Respondents’ brief contains two arguments that do not meaningfully address either of Martinez’s sub-arguments. Rather, respondents contend that (1) “law of the case” precludes reconsideration of whether Martinez prevailed; and (2) even if Martinez could challenge his status as “prevailing party,” his motion was not timely.

Martinez’s reply brief asserts that appellate court costs and trial court costs are “two distinct things,” and thus the trial court abused its discretion. We agree with the first assertion, but disagree that Martinez has demonstrated the second. And we thus affirm the order.

Martinez’s brief asserts that trial court costs are governed by Code of Civil Procedure sections 1032, 1033, and 1095, and California Rules of Court, rule 3.1700. Rule 3.1700 deals with the timing of a claim for costs, and Code of Civil Procedure sections 1033 and 1095 have no applicability here: Section 1033 deals with costs if the amount awarded is within that for limited jurisdiction cases; and section 1095 deals with a judgment for money.

The controlling section here—where Martinez did not obtain any monetary relief—is Code of Civil Procedure section 1032, particularly subdivision (a)(4), which provides as follows: “ ‘Prevailing party’ includes the party with a net monetary recovery, a defendant in whose favor a dismissal is entered, a defendant where neither plaintiff nor defendant obtains any relief, and a defendant as against those plaintiffs who do not recover any relief against that defendant. If any party recovers other than monetary relief and in situations other than as specified, the ‘prevailing party’ shall be as determined by the court, and under those circumstances, the court, in its discretion, may allow costs or not and, if allowed, may apportion costs between the parties on the same or adverse sides pursuant to rules adopted under Section 1034.”

As one Court of Appeal described this subdivision, “Where the prevailing party is one not specified,[Code of Civil Procedure] section 1032, subdivision (a)(4) permits the trial court to determine the prevailing party and then allow costs or not, or to apportion costs, in its discretion. The statute requires the trial court to determine which party is prevailing and then exercise its discretion in awarding costs.” (Texas Commerce Bank v. Garamendi (1994) 28 Cal.App.4th 1234, 1248–1249, fn. omitted.) Or, as another said, there in a case where the party seeking costs sought and obtained non-monetary declaratory relief, it “permits [a] ruling . . . ordering each side to pay its own costs, even [where] appellants were without question the prevailing parties. [¶] . . . [¶] . . . Essentially, [section 1032(a)(4)] provides that . . . when a party recovers other than monetary relief, the trial court may determine the prevailing party and in its discretion may choose to allow or not allow costs.” (Lincoln v. Schurgin (1955) 39 Cal.App.4th 100, 105.)

The trial court’s ruling was expressly a discretionary one, a ruling we review for abuse of discretion. And to show such abuse, Martinez must show, in the words of our Supreme Court, that the trial court’s ruling was “so irrational or arbitrary that no reasonable person could agree with it. [Citations.]” (Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 773.) This, Martinez has not done—indeed, is precluded from doing it.

It appears that Martinez’s motion was not reported or, if it was, there is no reporter’s transcript in the record. So, we do not know what was said at the hearing or the actual basis of any ruling by the trial court. This is most unhelpful to Martinez. As the leading practice treatise puts it, “Transcript may be essential for appellate review: Unless a court reporter is present, the losing party may have no effective way of challenging the court’s ruling by writ or appeal: ‘In the absence of a transcript, the reviewing court will have no way of knowing . . . what grounds were advanced, what arguments were made, and what facts may have been admitted, mutually assumed or judicially noticed at the hearing. In such a case, no abuse of discretion can be found except on the basis of speculation.’ (Snell v. Sup. Ct. (Marshall Hosp.) (1984) 158 Cal.App.3d 44, 49 (emphasis added); see also GT, Inc. v. Sup. Ct. (Santa Cruz Sentinel Publishers, Inc. (1984) 151 Cal.App.3d 748, 756. [¶] [9:173] PRACTICE POINTERS: If you are appearing in a court in which law and motion hearings are not regularly reported . . . , and there is the slightest chance you would seek appellate review if the judge rules against you, be sure to make arrangements to have a court reporter present.” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trail (The Rutter Group 2020) ¶¶ 9.172 to 9.173, pp. 9(I)-132.)

In short, any review for an abuse of discretion is precluded by the absence of a transcript. (See generally Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 132; Parker v. Harbert (2012) 212 Cal.App.4th 1172, 1178; Nielsen v. Gibson (2009) 178 Cal.App.4th 318, 324.)

In any event, Martinez has not met his burden. As the Supreme Court put it long ago: “[A]buse of discretion is never presumed and it must be affirmatively established.” (Wilder v. Wilder (1932) 214 Cal. 783, 785.) Martinez has not established it here.

We close with the observation that the most fundamental rule of appellate review is “a trial court judgment is ordinarily presumed to be correct and the burden is on an appellant to demonstrate, on the basis of the record presented to the appellate court, that the trial court committed an error that justifies reversal of the judgment.” (Jameson v. Desta (2018) 5 Cal.5th 594, 609.) Martinez has shown no such error.

DISPOSITION

The order denying costs is affirmed.

 

_________________________

Richman, J.

We concur:

_________________________

Kline, P.J.

_________________________

Stewart, J.

Martinez v. Kernan et al. (A158176)