JEN KANG YANG v. LARRY FIELDS (2010)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Plaintiff and appellant Jen-Kan Yang (Yang) appeals from an order awarding defendant and respondent Larry Fields (Fields) $24,933 in fees and $1,732.81 in costs pursuant to Code of Civil Procedure sections 425.16, subdivision (c) and 1032, subdivision (b).¹  Yang also appeals the trial court's denial of his motion for sanctions against Fields and Fields' counsel.   We affirm the award of costs and attorney fees and the denial of the request for sanctions.

BACKGROUND

On August 11, 2008, Fields filed a memorandum of costs seeking costs in the amount of $1,732.81 and fees in the amount of $24,933.   Fields filed a separate memorandum of costs on appeal on August 8, 2008, seeking $994.96 in costs for the appeal of the anti-SLAPP motion, as well as a motion for attorney fees and costs.   On September 3, 2008, Yang filed a document captioned “OPPOSITION TO MOTION FOR ATTORNEYS FEES AND REQUEST FOR SANCTION AGAINST DEFENDANT LARRY H. FIELDS AND HIS COUNSEL,” in which he argued that the memorandum of costs on appeal was untimely, and that certain fee and cost items were improper.

On the day of the hearing on the motion, Fields's attorney filed a supplemental declaration seeking an additional $2,805 in fees and $40 in costs for preparing the motion for fees.   After hearing argument from the parties and taking the matter under submission, the trial court awarded Fields a total of $26,665.81 in fees and costs.   The trial court stated that although Fields was seeking a total sum of $28,997.58 in fees and costs, the court was exercising its discretion to limit the award to $1,732.81 in costs and $24,933 in fees.   The trial court further stated:  “The Court makes no ruling as to any purported costs on or fees on appeal.”

The trial court explained its ruling as follows:  “At this juncture it is important to note that the opposition's only evidence is the declaration of [Yang] and it does not support the positions [he] attempts to advance in his opposition․  [¶] ․ [¶] Fields now maintains he is entitled to $28,997.58 in fees and costs using the Lodestar method.  [¶] The court, in determining the reasonableness of attorneys' fees may use the Lodestar method․  [¶] This court agreed with [Fields's] propositions advanced in the SLAPP motion and rejected the positions by the plaintiffs.  [Fields's] position was vindicated at the appeal level.  [¶] Further, based on the court's familiarity with the case, the complexity of the issues, the contentiousness of the parties' attorneys, the amount of motions and appearances before the court, and in light of the fact that this matter did not proceed to trial but was resolved by way of an Anti-SLAPP motion, the Court deems $24,933.00 as a reasonable total award for attorneys' fees ․ plus costs of $1,732.81.”   On September 24, 2008, Yang filed a motion for sanctions against Fields and his counsel for allegedly failing to comply with applicable rules in filing and serving the anti-SLAPP motion and the motion for fees, and for filing false declarations in support of the fee motion.   Fields opposed the motion.

On October 21, 2008, the trial court denied the motion for sanctions, reasoning as follows:  “The declaration in support of the motion fails to support or prove up the amount of sanctions.   While the Memorandum of Points and Authorities sets forth an amount of $20,000, there is no supporting evidence to warrant that amount.  [¶] The declaration merely claims that the motion for attorneys' fees was continued from September 2, 2008 to September 16, 2008 and that plaintiff was informed of this when plaintiff's wife telephoned defendant's attorneys' office instead of being faxed a continuance.  [¶] The Memorandum cites to several alleged irregularities in the manner of service.   However there is a complete failure to show severe or even minimal prejudice [caused by] the alleged imperfect services.   Furthermore, many of the alleged defects [were] made in 2006 and the failure to object at that time waived any defect.  [¶] Likewise, any failure to timely object to the manner of service or other allegedly improper procedure at the time of service (or procedure) waived the defect.  [¶] In the court's discretion, the court denies the request for sanctions.”

Judgment was entered in favor of Fields on October 22, 2008.   This appeal followed.

DISCUSSION

I. Award of Fees and Costs

Yang's challenge to the trial court's award of fees and costs to Fields is reviewed under the abuse of discretion standard.  (Visher v. City of Malibu (2005) 126 Cal.App.4th 364, 368.)   A trial court's exercise of discretion is abused only when its ruling exceeds the bounds of reason.  (Dove Audio, Inc. v. Rosenfeld, Meyer & Susman (1996) 47 Cal.App.4th 777, 785.)

Yang contends Fields was not entitled to an award of fees and costs in connection with the appeal of the anti-SLAPP motion because Fields did not file a timely motion to recover these amounts under California Rules of Court, rules 3.1702 and 8.278.   It does not appear, however, that the award included fees and costs on appeal.   Fields's cost memorandum filed on August 11, 2008, did not include costs on appeal and the trial court did not award Fields the $994.96 in costs sought in the separate memorandum of costs on appeal filed on August 8, 2008.   Although Fields's motion for attorney fees sought to recover fees incurred in the appeal of the anti-SLAPP motion, the trial court did not grant that motion in its entirety, but exercised its discretion to reduce the amount of fees awarded.   The trial court also expressly stated:  “The Court makes no ruling as to any purported costs on or fees on appeal.”   Fields has not appealed that ruling.   Whether the award should or should not have included fees and costs on appeal is therefore not at issue here.²

Yang challenges certain cost items as not recoverable because they were unrelated to the anti-SLAPP motion.   To object to a memorandum of costs, the objecting party must file a motion to strike or tax costs as set forth in California Rules of Court,

rule 3.1700(b).  (Cal. Rules of Court, rule 8.278(c)(2).)   Rule 3.1700(b) specifically requires a notice of motion to strike or tax costs to be filed 15 days after service of the cost memorandum.   Yang's “OPPOSITION TO MOTION FOR ATTORNEYS FEES,” filed on September 3, 2008, was untimely.   Yang's failure to file a timely motion to tax costs resulted in a forfeiture of the right to object to those costs.  (Jimenez v. City of Oxnard (1982) 134 Cal.App.3d 856, 859 [waiver by failing to file motion to tax costs on time];  Santos v. Civil Service Bd. (1987) 193 Cal.App.3d 1442, 1447 [waiver where plaintiff “failed to file an objection to the cost bill by filing a timely motion to tax costs” as required];  Douglas v. Willis (1994) 27 Cal.App.4th 287, 289-290 [failure to file motion to tax costs constitutes waiver].)

Yang claims that he did not file a timely motion to strike or tax costs because he was never served with a copy of the memorandum of costs.   The record does not support this claim.   The declaration of proof of service attached to the memorandum of costs indicates that a copy of the cost memorandum was hand delivered to Yang. Moreover, Yang did not raise any issue regarding defective service in the trial court below, and he cannot do so for the first time in this appeal.  (In re Marriage of Hinman (1997) 55 Cal.App.4th 988, 1002.)

Even absent any forfeiture, the challenged cost items unrelated to the anti-SLAPP motion are recoverable under section 1032, subdivision (b), which provides:  “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.”   The trial court did not abuse its discretion by awarding Fields $1,732.81 in costs.

Yang challenges the amount of attorney fees awarded as excessive and claims the award includes fees unrelated to the anti-SLAPP motion.   The determination of the reasonableness of the amount of an attorney fee award is a matter within the sound discretion of the trial court.  (Akins v. Enterprise Rent-A-Car Co. (2000) 79 Cal.App.4th 1127, 1134.)  “ ‘ “The ‘experienced trial judge is the best judge of the value of professional services rendered in his court, and while his judgment is of course subject to review, it will not be disturbed unless the appellate court is convinced that it is clearly wrong.’ ”   [Citation.]'  (Montgomery v. Bio-Med Specialties, Inc. (1986) 183 Cal.App.3d 1292, 1298.)”  (Reveles v. Toyota by the Bay (1997) 57 Cal.App.4th 1139, 1153, disapproved on another ground by Snukal v. Flightways Manufacturing, Inc. (2000) 23 Cal.4th 754.)   The record discloses no abuse of discretion with regard to the attorney fee award.

II. Sanctions

Yang challenges the trial court's denial of his motion for sanctions against Fields and his counsel for their purported failure to comply with service and filing requirements imposed by the California Rules of Court and for alleged misconduct by Fields's attorney.   We review the trial court's order regarding sanctions for an abuse of discretion.  (See Elkins v. Superior Court (2007) 41 Cal.4th 1337, 1364.)

The record discloses no abuse of discretion.   Yang's claims regarding Fields's alleged failure to serve various pleadings are contradicted by the declarations regarding proof of service, signed under penalty of perjury and attached to those pleadings.   Yang failed to show any prejudice from any allegedly late filing of pleadings by Fields or any alleged misconduct by Fields's counsel.   The trial court did not abuse its discretion by denying the motion for sanctions.

DISPOSITION

The order is affirmed.   Fields is awarded his costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

_, J.

CHAVEZ

We concur:

_, Acting P. J.

DOI TODD

_, J.

ASHMANN-GERST

FOOTNOTES

FN1. All further statutory references are to the Code of Civil Procedure unless otherwise indicated..  FN1. All further statutory references are to the Code of Civil Procedure unless otherwise indicated.

FN2. The award should have included fees and costs on appeal.   When we remanded the previous fee appeal to the trial court, we expressly directed the trial court “to determine the amount of fees and costs to which Fields is entitled under section 425.16, subdivision (c), including fees and costs on appeal in that matter.”  (Yang v. Fields (May 8, 2008, B196322) [nonpub. opn.].) As noted, however, Fields has not appealed the issue..  FN2. The award should have included fees and costs on appeal.   When we remanded the previous fee appeal to the trial court, we expressly directed the trial court “to determine the amount of fees and costs to which Fields is entitled under section 425.16, subdivision (c), including fees and costs on appeal in that matter.”  (Yang v. Fields (May 8, 2008, B196322) [nonpub. opn.].) As noted, however, Fields has not appealed the issue.