NADEJDA L. ROZANOVA, Plaintiff and Appellant, v. RAFAEL URIBE et al., Defendants and Respondents.
H047985 (Monterey County Super. Ct. No. 19CV001593)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT
Filed 8/30/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
NADEJDA L. ROZANOVA,
Plaintiff and Appellant,
v.
RAFAEL URIBE et al.,
Defendants and Respondents.
H047985
(Monterey County
Appellant Nadejda Rozanova appeals from a postjudgment order on a motion to tax costs. Rozanova contends the trial court erred by refusing to tax costs for items she claims are neither expressly authorized by statute nor allowable under the statute’s discretionary provisions. (See
I. FACTS AND PROCEDURAL BACKGROUND2
This action arises out of an ongoing property dispute among neighbors. Rozanova, who is self-represented, filed suit against her neighbors Rafael Uribe and Rosa Curayag (together, respondents) in April 2019. Rozanova had previously asserted claims against Uribe involving the same property in an action filed in 2013. A panel оf this court upheld the trial court’s determination in favor of Uribe in an unpublished opinion filed in 2018. (Rozanova et al. v. Uribe [Oct. 16, 2018, H044161] [nonpub. opn.].)
Shortly after the filing of the April 2019 lawsuit, respondents moved to have Rozanova declared a vexatious litigant and to require her to post bond or dismiss the action against them. The trial court denied the motion without prejudice. Respondents thereafter filed dispositive motions on the operative pleadings. Uribe, who had filed an answer, moved for judgment on the pleadings, and Curayag demurred to the first amended complaint. After a hearing, the trial court granted the motion for judgment on the pleadings and sustained the demurrer without leave to amend, finding the action was “barred by res judicata/collateral estoppel and the statute of limitations,” and dismissed the case with prejudice. (Capitalization omitted.)
(3) $1,253.04 for preparing photocopies of exhibits (item No. 12), and (4) $482.65 in electronic filing or service fees (item No. 14).
Rozanova filed a motion to strike or tax costs. Rozanova contended that respondents sought costs that were “not allowable . . . and/or [] not necessary or reasonable under Code of Civil Procedure section 1033.5.”
Rozanova asserted, as to the filing and motion fees, that respondents had not shown the motions filed were “necessary to the conduct of the litigation” as required under
Rozanova further asserted that the amount claimed in photocopying exhibits was not reasonable under
In response, respondents’ counsel filed a declaration that explained each of the items included in the memorandum of costs and attached documentation. The requested costs for filing and motion fees consisted of filing fees for the answer, the demurrer, the vexatious litigant motion, the motion for judgment on the pleadings, and a motion for protective order restricting discovery. The photocopying costs were corrected to reflect a $10 clerical error. With respect to the vexatious litigation motion, respondents sought to recover $1,243.04 in costs for photocopying the requests for judicial notice and for obtaining certified copies of California Supreme Court and Sixth District Court of Appeal documents as exhibits to the motion. Respondents’ counsel attested to the statutory basis
for the court reporter and electronic filing fees and attached verification оf the costs incurred to the legal services vendor for electronic filing.
Following a hearing, the trial court issued an order on the motion to tax costs (order). The trial court reduced the amount for electronic filing and
Although the order did not state the trial court’s reasons for denying Rozanova’s motion to tax the categories noted above, the trial court addressed Rozanova’s arguments on the record at the hearing. The trial сourt informed Rozanova that the filing of two dispositive motions by respondents was proper because Uribe had answered the complaint and thus could not file a demurrer like Curayag, for whom it was a first appearance. The trial court found the motions to declare Rozanova a vexatious litigant and for an order restricting discovery “were made in good faith” given the history of the case and number of filings. The trial court further found that the 2,289-page request for judicial notice (in support of the vexatious litigant motion) reflected the court files where Rozanova had litigated and was properly included as part of the motions heard by the court. Regarding the court reporter fees, the trial court stated the fees were statutorily prescribed by
Rozanova appealеd the trial court’s order on her motion to tax costs.3
II. DISCUSSION
Rozanova contends the trial court erred in awarding nonrecoverable costs for filing and motion fees, and fees for photocopying exhibits not used at trial. She also challenges the costs awarded for court reporter and electronic filing fees. Respondents have not participated in this appeal.
The right to recover costs of suit is statutory. (Gorman v. Tassajara Development Corp. (2009) 178 Cal.App.4th 44, 71.)
from the March 18, 2020 order as an order after an appealable judgment. (
necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation” (
“In ruling upon a motion to tax costs, the trial court’s first determination is whether the statute expressly allows the particular item and whether it appears proper on its face. ‘If so, the burden is on the objecting party to show [the costs] to be unnecessary or unreasonable.’ [Citation.] Where costs are not expressly allowed by the statute, the burden is on the party claiming the costs to show that the charges were reasonable and necessary.” (Foothill-De Anza Community College Dist. v. Emerich (2007) 158 Cal.App.4th 11, 29.)
A costs award is generally reviewed on appeal for abuse of discretion. (Berkeley Cement, supra, 30 Cal.App.5th at p. 1139.) “Whether a cost item was reasonably necessary to the litigation presents a question of fact for the trial court and its decision is reviewed for abuse of discretion. [Citation.] However, because the right to costs is governed strictly by statute [citation] a court has no discretion to award costs not statutorily authorizеd.” (Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774 (Ladas).) “[W]hen the issue to be determined is whether the criteria for an award of costs have been satisfied, and that issue requires statutory construction, it presents a question of law requiring de novo review.” (Berkeley Cement, supra, at p. 1139.)
Filing and motion fees are among the items specifically enumerated as allowable costs under
costs for the vexatious litigant and protective order motions, the trial court merely found the various motions had been brought “in good faith.” And she questions why both respondents could not have filed a joint demurrer rather than incurring costs for filing an answer and motion on the pleadings, as well as a demurrer.
The limited record on appeal shows that the trial court fairly considered and rejected these arguments, and substantial evidence supports its determination. As to each of the challenged items, respondents’ counsel presented a declaration and evidence to establish that each of the listed fees incurred were for court filings. With respect to the vexatious litigant and protective order motions, the litigious history and number of filings (stretching back to 2013 for the first-filed action and spanning two prior appeals, one writ proceeding, and petitions for review in the California Supreme Court and United States Supreme Court) justified respondents’ effort to impose restrictions upon Rozanova’s initiation of another lawsuit. Although the trial court ultimately declined to grant the motions, the trial court’s “good faith” finding suggests the motions were a reasonable step by respondents to limit their exposure to defending against potentially repetitive claims and filings. The motions, under the circumstances, could be considered “reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation” (
The procedural history of the case similarly provides substantial evidence for the trial court’s award of costs for the filing of the answer, motion for judgment on the pleadings, and demurrer. California law limits the pleadings in a civil action to complaints, demurrers, answers, and cross-complaints. (
was accurate insofar as rеspondent Uribe had answered the amended complaint and could not simply join respondent Curayag’s demurrer.
On the limited record before us, we conclude that substantial evidence supports the trial court’s determination that the filing and motion fees—made expressly allowable by
C. Exhibit Photocopies
Photocopies of exhibits are specifically enumerated as allowable costs under
Copley Press, Inc. (2006) 141 Cal.App.4th 1550, 1557–1560 (Seever).) We discuss these cases, and the issue of cost recovery for exhibits not used at trial (now pending review in the California Supreme Court), after clarifying the basis for the costs at issue here.
As an initial matter, we note some confusiоn in the record regarding the basis for the costs listed as “photocopies of exhibits.” Rozanova’s motion to tax costs identified the motion for judgment on the pleadings, which had four exhibits attached to the accompanying request for judicial notice, and the demurrer, as the apparent source of the exhibit costs. But according to the declaration submitted by respondents’ counsel in opposition to the motion to tax costs, the costs were not for exhibits to the demurrer or motion for
Even so, at the hearing, the trial court continued to refer to the four exhibits to the motion for judgment on the pleadings, noting that it “didn’t go to trial” but “[was] a dispositive motion that [Uribe] did file.” At the same time, the trial court also discussed costs related to the exhibits for the vexatious litigant motion, stating the exhibits were “not used for trial” but were “part of motions filed by [respondents] that w[ere] heard by [the] Court.” The trial court thеn denied Rozanova’s motion to tax exhibit photocopy costs.5
Based on the declaration and exhibits submitted by respondents’ counsel to the trial court in their opposition to tax costs, the costs at issue were not for photocopies of exhibits to any “dispositive” motions but for photocopies of exhibits to the vexatious litigant motion. Recalling that “a court has no discretion to award costs not statutorily
authorized” (Ladas, supra, 19 Cal.App.4th at p. 774), we turn to the question at hand—whether photocopies of exhibits to a vexatious litigant motion are exрressly authorized for cost recovery under
As noted,
Our objective in construing the statute “is to ascertain and effectuate legislative intent, giving the words of the statute their usual and ordinary meaning.” (Moran v. Murtaugh Miller Meyer & Nelson, LLP (2007) 40 Cal.4th 780, 783 (Moran).) While an “exhibit” is ordinarily understood to refer to a document or object introduced as evidence in court, it also generally refers—as the trial court here observed—to “a document attached to and made part of a pleading, motion, contract, or other instrumеnt.” (See Black’s Law Dict. (11th ed. 2019) p. 719, col. 1.) Applying this common meaning, the trial court correctly noted “the request for judicial notice documents [attached to the vexatious litigant motion] would qualify” as exhibits.
The Legislature did not authorize cost recovery for all exhibit photocopies (and other itemized expenses related to exhibits) but only those that “were reasonably helpful to aid the trier of fact.” (
or persons “who hear testimony аnd review evidence to rule on a factual issue.” (Id. at p. 737, col. 2.) Rozanova’s asserts that the use of “trier of fact” in
The determination of a vexatious litigant motion constitutes one such proceeding. “When considering a motion to declare a litigant vexatious, the court must weigh the evidence to decide whether the litigant is vexatiоus based on the statutory criteria and whether the litigant has a reasonable probability of prevailing.” ( Goodrich v. Sierra Vista Regional Medical Center (2016) 246 Cal.App.4th 1260, 1265; accord Golin v. Allenby (2010) 190 Cal.App.4th 616, 635, citing Moran, supra, 40 Cal.4th at p. 786.)6 In other words, a vexatious litigant motion is factual in nature and involves fact finding by the trial judge. (Moran, at pp. 782, 786.) This distinguishes it from many pretrial motions—some of which may be decided on the pleadings (like a demurrer) and others (like a summary judgment) which do not permit the trial court to weigh the evidence or inferences as would a trier of fact (see, e.g., Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 856).
Notes
Using general tools of statutory construction, including plain language, we decide “trier of fact” as used in
That question is currently pending review in the California Supreme Court. (Segal v. Asics America Corp. (2020) 50 Cal.App.5th 659 (Segal), review granted Sept. 30, 2020, S263569 [stating the issue to be briefed and argued is, “May a party recover costs for preparing multiple sets of trial exhibits and closing slides that were not used at trial?”].) But the cases leading to the grant of review in Segal, though divided as to whether trial exhibits not used at trial are recoverable, do not address the question that arises here of whether exhibits that might have been helpful to the trier of fact, albeit in non-trial proceedings, fall within the intended meaning of
(B.B. v. County of Los Angeles (2020) 10 Cal.5th 1, 11 [“ ‘ “cases are not authority for propositions not considered” ’ ”].) We note, moreover, at least one Court of Appeal decision in which the reviewing court applied allowable costs to exhibit photocopies produced not for trial, but for mandamus review of a California Environmental Quality Act decision. (Coalition for Adequate Review v. City and County of San Francisco (2014) 229 Cal.App.4th 1043, 1061 [reasoning that “an ‘excerpt of record’ in a mandamus action can qualify as a photocopy of an exhibit under
In the absence of any contrary authority or indication of contravening statutory intent, we conclude thаt the plain meaning of
cases holding that even if exhibit costs are not expressly authorized under
exhibits filed in support of respondents’ vexatious litigant motion. There is consequently no need to examine any other statutory basis for the trial сourt’s award of costs for these items. (Cf. Applegate, supra, 23 Cal.App.4th at pp. 363–364 [looking to
Turning to the award itself, the trial court is in the best position to evaluate whether the costs incurred for the judicial notice exhibits were “reasonably helpful to aid” the trial court as the trier of fact on the vexatious litigant motion (
In sum, we conclude that the plain language of
D. Court Reporter and E-Filing Fees
Rozanova also challenges the “[c]ourt reporter fee as established by statute” and “e-fil[]ing fees” related to any motions filed other than the demurrer. Rozanova does not support these assertions of error with any citation to the relevant statutory or case authorities. She contends that because only the demurrer was reasonably necessary to
win the litigation, the court reporter fee and e-filing fee must be limited to that single motion. However, as we discussed ante (part II.B.) in relation to filing and motion fees, substantial evidence in the record and the procedural history of the case support the trial court’s determination that the motions and filings of respondents in this case were reasonably necessary to the litigation. Consequently, the trial court did not abuse its discretion in awarding those court reporter and electronic filing fees—both of which are expressly allowed. (
III. DISPOSITION
The March 18, 2020 postjudgment order is affirmed.
______________________________________
Danner, J.
WE CONCUR:
____________________________________
Greenwood, P.J.
____________________________________
Grover, J.
H047985
Rozanova v. Uribe, et al.
Trial Court: County of Monterey case No. 19CV001593
Trial Judge: Hon. Marla O. Anderson
Nadejda Rozanova, in pro. per., for Plaintiff and Appellant.
No appearance for Defendants and Respondents.
H047985
Rozanova v. Uribe, et al.