Filed 6/12/24 Thompson v. Ito 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

NANCY THOMPSON,

 Plaintiff and Respondent,

v.

THOMAS YOSHIO ITO,

 Defendant and Appellant.

 G061437

 (Super. Ct. No. 30-2018-01027543)

 O P I N I O N

Appeal from a postjudgment order of the Superior Court of Orange County, 

David L. Belz, Judge. Affirmed in part, reversed in part, and remanded with directions.

Thomas Yoshio Ito, in pro. per., for Defendant and Appellant.

Albertson & Davidson, Jeffrey M. Hall and Michelle P. Nguyen for

Plaintiff and Respondent.
2

Thomas Yoshio Ito appeals from a postjudgment order awarding attorney 

fees and costs to Nancy Thompson under Welfare and Institutions Code section 15657.5, 

subdivision (a) (all undesignated statutory references are to this code).1 Thomas argues 

the trial court lacked the authority to rule on Nancy’s motion for attorney fees and her 

memorandum of costs during the pendency of the appeal of the underlying lawsuit

(Thompson v. Ito (Nov. 15, 2022, G059403) [nonpub. opn.] (Thompson I).). He also 

challenges the award of attorney fees and costs on several grounds.

We affirm in part and reverse in part. We hold the trial court retained 

jurisdiction to award attorney fees and costs while the appeal of the underlying lawsuit

was pending. We also conclude the trial court properly awarded attorney fees based on 

the lodestar method and deem several of Thomas’s arguments forfeited. However, we 

find the trial court abused its discretion in awarding certain lodging and parking costs and 

accordingly reverse that portion of the order awarding these costs.

FACTUAL AND PROCEDURAL BACKGROUND

I.

UNDERLYING LAWSUIT

In October 2018, Nancy petitioned for an order invalidating the Itow 

Family Trust (Trust) based on undue influence and for damages against Thomas for 

financial elder abuse. The trial court issued a tentative statement of decision in March 

2020, and it entered a final judgment in June 2020. 

1 We will refer to the parties by their first names to avoid confusion. In 

various places in the appellate record, the last name Ito is spelled Itow. Throughout this 

opinion, when necessary to mention an individual’s last name, we use the spelling of that 

person’s name that predominates in the appellate record.
3

In the judgment, the trial court held Yoko executed the Trust under

Thomas’s excessive persuasion and undue influence as defined in section 15610.70.

2

 It 

found: “Yoko Itow was unduly influenced and persuaded to change her estate plan 

documents by disinheriting her daughter Nancy Itow.” The trial court invalidated the 

Trust and a quitclaim deed, ordered the return of real property to Yoko’s estate, and 

ordered Nancy to be appointed as executor of the estate. 

The trial court also concluded Thomas committed acts of financial elder 

abuse against Yoko under section 15610.30.3 It found Thomas took “and obtain[ed] real 

or personal property of Yoko by undue influence and for a wrongful use” causing harm to 

Yoko by depriving her of her right to “properly dispose of her earthly estate.” Because 

the trial court found Thomas committed acts of financial elder abuse, it granted Nancy’s 

request for attorney fees and costs pursuant to section 15657.5. 

The trial court denied Nancy’s requests for double damages under Probate 

Code section 859 and for a finding that would deem Thomas predeceased Yoko under 

Probate Code section 259. Both denials were due to insufficient evidence of bad faith

conduct. It also denied attorney fees and costs under section 15657, because the trial 

2

Section 15610.70, subdivision (a), provides, “‘Undue influence’ means 

excessive persuasion that causes another person to act or refrain from acting by 

overcoming that person’s free will and results in inequity.” In determining whether an 

act or omission was the product of undue influence, court must consider various statutory 

factors. (§ 15610.70, subd. (a)(1)–(4).)

3

Section 15610.30, subdivision (a), defines “‘[f]inancial abuse’ of an elder 

. . . when a person or entity does any of the following: [¶] (1) Takes, secretes, 

appropriates, obtains, or retains real or personal property of an elder or dependent adult 

for a wrongful use or with intent to defraud, or both. [¶] (2) Assists in taking, secreting, 

appropriating, obtaining, or retaining real or personal property of an elder or dependent 

adult for a wrongful use or with intent to defraud, or both. [¶] (3) Takes, secretes, 

appropriates, obtains, or retains, or assists in taking, secreting, appropriating, obtaining, 

or retaining, real or personal property of an elder or dependent adult by undue influence, 

as defined in Section 15610.70.”
4

court did not find by clear and convincing evidence Thomas was liable for physical abuse

under section 15610.63 or neglect under section 15610.57 and that Thomas was “guilty 

of recklessness, oppression, fraud, or malice in the commission of this abuse.” 

In September 2020, Thomas appealed the trial court’s judgment, which we

affirmed with a modification in November 2022. On appeal, we found the trial court 

erred in appointing Nancy as executor of Yoko’s estate and deleted that order from the 

judgment. (Thompson I, supra, G059403 at p. 2.) In awarding costs on appeal, we 

concluded, “Because both parties prevailed in part, in the interests of justice neither party 

shall recover costs on appeal.” (Id. at p. 18.)

II.

FEE LITIGATION

In March 2020, Nancy filed a memorandum of costs, claiming a total of 

$27,961.07 in costs. In September 2020, Nancy moved for an award of attorney fees

under section 15657.5. She sought a lodestar figure of $203,865. She requested: (1)

$525 per hour for attorney Jeffrey M. Hall for 183.9 hours of work performed; (2) $425 

per hour for attorney Omid J. Afati for 148.3 hours of work performed; (3) $425 per hour

for attorney Nathan Coppernoll for 58.4 hours of work performed; (4) $425 per hour for 

Troy McMahon for 12.3 hours of work performed; and (5) $225 per hour for paralegal 

Susan Nugent for 63.3 hours of work performed. In support of her motion, Nancy 

provided a declaration of her attorney Hall and billing records. 

In November 2020, Nancy filed a memorandum of costs worksheet, with 

documentation supporting the claimed costs of $27,961.07. Among the costs claimed 

were $2,395.67 for lodging expenses during trial and $73 for parking expenses during 

trial. In support of these claimed costs, Nancy submitted a document entitled, “Activities 

Export,” which identified a “[u]ser” named Ken Albertson with respect to these lodging 

and parking expenses for January 23, 2020. 
5

On November 24, 2020, Nancy filed a notice of non-receipt of opposition

since Thomas’s opposition to her motion for attorney fees was due on November 17, 

2020, but she had not yet received it. On December 3, 2020, Thomas filed an opposition 

to Nancy’s motion for attorney fees. 

In a minute order on December 4, 2020, the trial court noted Thomas 

“attempted to file his opposition to the motion for attorney fees and it was rejected by the 

clerk’s office. [¶] The court will allow [Thomas] to file his opposition. [¶] This matter is 

continued to allow [Thomas] to file his opposition before the next court date.” The 

motion for attorney fees was continued by the trial court to December 16, 2020. 

After a hearing on the motion on December 16, 2020, the trial court took 

the matter under submission. In March 2021, the trial court issued a minute order 

indicating it could not rule on the motion during the pendency of the appeal of the 

underlying lawsuit. 

During a hearing in January 2022, while the appeal of the underlying 

lawsuit was still pending, Nancy requested the trial court rule on her motion for attorney 

fees. Points and authorities as to whether the court had the authority to rule on Nancy’s 

motion during the pendency of the appeal were requested by the trial court.

After receiving points and authorities from the parties, the trial court issued 

a ruling on Nancy’s motion for attorney fees in March 2022. It concluded it retained 

jurisdiction to issue an attorney fee award during the pendency of the appeal of the 

underlying lawsuit. It then entered an attorney fee award of $175,252.50 and “award[ed] 

costs to Nancy Thompson in the amount of $27,961.07.” 

Thomas timely appealed the trial court’s order awarding attorney fees and 

costs. 
6

DISCUSSION

I.

GENERAL APPELLATE PROCEDURAL PRINCIPLES

A core principle of appellate procedure is to “presume the trial court result 

is correct. [Citation.] The one contesting that result thus bears the burden of showing 

legal error. That requires legal authority.” (Singman v. IMDB.com, Inc. (2021) 72 

Cal.App.5th 1150, 1151.)

“‘This means that an appellant must do more than assert error and leave it 

to the appellate court to search the record and the law books to test his claim. The 

appellant must present an adequate argument including citations to supporting authorities 

and to relevant portions of the record. [Citations.]’ [Citation.] Accordingly, the 

California Rules of Court expressly require appellate briefs to ‘[s]tate each point . . . and 

support each point by argument and, if possible, by citation of authority’ and to ‘[s]upport 

any reference to a matter in the record by a citation to the volume and page number of the 

record where the matter appears.’ (Cal. Rules of Court, rule 8.204(a)(1)(B) & (C).)” 

(L.O. v. Kilrain (2023) 96 Cal.App.5th 616, 619–620 (Kilrain).) 

“When legal argument with citation to authority is not furnished on a 

particular point, we may treat the point as forfeited and pass it without consideration. 

[Citations.] In addition, citing cases without any discussion of their application to the 

present case results in forfeiture. [Citations.] We are not required to examine 

undeveloped claims or to supply arguments for the litigants.” (Martine v. Heavenly 

Valley Limited Partnership (2018) 27 Cal.App.5th 715, 728 (Martine).)

“Generally, issues not raised in the trial court cannot be raised for the first 

time on appeal. [Citations.] Although appellate courts have discretion to consider an 

issue in the first instance if it raises a question of law on undisputed facts, our Supreme 

Court has cautioned that such discretion should be exercised rarely and only in cases 

presenting an important legal issue. [Citations.] ‘“‘Appellate courts are loath to reverse a 
7

judgment on grounds that the opposing party did not have an opportunity to argue and the 

trial court did not have an opportunity to consider.’”’” (Wisner v. Dignity Health (2022) 

85 Cal.App.5th 35, 44–45.)

Another “‘“rule is that points raised in the reply brief for the first time will 

not be considered, unless good reason is shown for failure to present them before.”’” 

(Ione Valley Land, Air, & Water Defense Alliance, LLC v. County of Amador (2019) 33 

Cal.App.5th 165, 173 (Ione Valley).) “‘An issue is new if it does more than elaborate on 

issues raised in the opening brief or rebut arguments made by the respondent in 

respondent’s brief. Fairness militates against allowing an appellant to raise an issue for 

the first time in a reply brief because consideration of the issue deprives the respondent of 

the opportunity to counter the appellant by raising opposing arguments about the new 

issue.’” (Hernandez v. First Student, Inc. (2019) 37 Cal.App.5th 270, 277–278

(Hernandez).)

These appellate procedural “rules apply both to parties represented by 

counsel and self-represented parties. [Citation.] ‘A party proceeding in propria persona 

“is to be treated like any other party and is entitled to the same, but no greater 

consideration than other litigants and attorneys.”’” (Kilrain, supra, 96 Cal.App.5th at p. 

620.)

Thomas, a self-represented litigant, presents several arguments in his 

opening brief without citing any legal authority in support. He raises some arguments for 

the first time on appeal in his opening brief, and sets forth a few arguments for the first 

time in his reply brief. We consider his arguments where possible. We state below when 

we deem any arguments forfeited.

II.

AN APPEAL DOES NOT PREVENT AN ATTORNEY FEE AWARD 

As a threshold issue, we first address Thomas’s argument that the trial court 

lacked the authority to award attorney fees and costs to Nancy while the appeal of the 
8

underlying lawsuit was pending. Code of Civil Procedure section 916, subdivision (a), 

provides, unless a specified exception applies, “the perfecting of an appeal stays 

proceedings in the trial court upon the judgment or order appealed from or upon the 

matters embraced therein or affected thereby.” “The purpose of the automatic stay rule is 

‘to protect the appellate court’s jurisdiction by preserving the status quo until the appeal 

is decided.’” (Dowling v. Zimmerman (2001) 85 Cal.App.4th 1400, 1428.)

“[B]ut the trial court may proceed upon any other matter embraced in the 

action and not affected by the judgment or order.” (Code Civ. Proc., § 916, subd. (a).) 

An attorney fee award “is a collateral matter which is embraced in the action but is not 

affected by the order from which an appeal is taken.” (Bankes v. Lucas (1992) 9 

Cal.App.4th 365, 369 (Bankes), superseded by statute on other grounds as stated in Lee v. 

Wells Fargo Bank (2001) 88 Cal.App.4th 1187, 1197; accord, Korchemny v. Piterman

(2021) 68 Cal.App.5th 1032, 1052.) Accordingly, “filing of a notice of appeal does not 

. . . prevent the trial court from” awarding attorney fees and costs. (Bankes, at p. 369.) 

Furthermore, “the filing of a notice of appeal does not deprive the trial court of 

jurisdiction to award attorney fees and costs post trial. . . . [A] motion for attorney fees is 

not premature despite the filing of a notice of appeal.” (Id. at p. 368; see Robertson v. 

Rodriguez (1995) 36 Cal.App.4th 347, 360 [trial court retained jurisdiction to consider a 

statutory attorney fee award despite an appeal of the underlying lawsuit].) Therefore, the 

trial court properly concluded it retained jurisdiction to award attorney fees and costs 

despite an appeal of the underlying lawsuit.

III.

THE TRIAL COURT PROPERLY AWARDED ATTORNEY FEES

A. Standard of Review

“‘On review of an award of attorney fees after trial, the normal standard of 

review is abuse of discretion.’” (Sanders v. Lawson (2008) 164 Cal.App.4th 434, 438

(Sanders).) “An abuse of discretion is shown when it may be fairly said that the court 
9

exceeded the bounds of reason or contravened uncontradicted evidence.” (Mustachio v. 

Great Western Bank (1996) 48 Cal.App.4th 1145, 1151.) “‘“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.”’” (Goodman v. Lozano (2010) 47 

Cal.4th 1327, 1339.) “‘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.] ‘Fees approved by the trial court are presumed to be reasonable, 

and the objectors must show error in the award.’” (Laffitte v. Robert Half Internat. Inc. 

(2016) 1 Cal.5th 480, 488.) 

“However, de novo review . . . is warranted where the determination of 

whether the criteria for an award of attorney fees and costs in this context have been 

satisfied amounts to statutory construction and a question of law.” (Sanders, supra, 164 

Cal.App.4th at p. 438.)

B. Nancy Was Entitled to Attorney Fees

Without citing any legal authority, Thomas argues “there was no clear 

prevailing party” and “both sides partially prevailed” following our prior decision on 

appeal in this matter. We therefore reject this argument and deem it forfeited. (Martine, 

supra, 27 Cal.App.5th at p. 728.)

Even if we were to consider the merits of the argument, we would conclude 

Nancy was entitled to attorney fees. “Welfare and Institutions Code section 15657.5, 

subdivision (a), provides that when a case of financial elder abuse (Welf. & Inst. Code, § 

15610.30) has been proven, ‘in addition to compensatory damages and all other remedies 

otherwise provided by law, the court shall award to the plaintiff reasonable attorney’s 

fees and costs.’” (Conservatorship of McQueen (2014) 59 Cal.4th 602, 607.) “The 

attorney fee provision in section 15657.5 is not discretionary in nature.” (Arace v. 
10

Medico Investments, LLC (2020) 48 Cal.App.5th 977, 983.) “Under the plain language of 

the statute, an award of attorney fees is a mandatory form of relief.” (Ibid.) 

Here, the trial court found Thomas committed acts of financial elder abuse 

under section 15610.30. Because of the finding of financial elder abuse, the trial court 

was required to award attorney fees and costs to Nancy under section 15657.5, 

subdivision (a). 

C. The Attorney Fees Were Reasonable 

“[T]he fee setting inquiry in California ordinarily begins with the ‘lodestar,’

i.e., the number of hours reasonably expended multiplied by the reasonable hourly 

rate. . . . The reasonable hourly rate is that prevailing in the community for similar work. 

[Citations.] The lodestar figure may then be adjusted, based on consideration of factors 

specific to the case, in order to fix the fee at the fair market value for the legal services 

provided.” (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095 (PLCM); see 

Ketchum v. Moses (2001) 24 Cal.4th 1122, 1134–1135 [compiling cases using the 

lodestar method under various statutes].)

4

“‘On appeal we infer all findings in favor of 

the prevailing parties.’” (Lockaway Storage v. County of Alameda (2013) 216 

Cal.App.4th 161, 193 (Lockaway).)

The record shows the trial court properly awarded attorney fees based on 

the lodestar method, even though it did not explicitly state it was applying that method. 

In support of her motion for attorney fees, Nancy provided a declaration of her attorney 

Hall, in which he stated each attorney and paralegal’s work experience, the number of 

hours each worked on the case, the nature of their work, and their hourly rate. Although 

4

In his reply brief, Thomas argues Nancy mistakenly relies on cases

involving attorney fee awards under contracts and Civil Code section 1717. These cases, 

such as PLCM, include general principles of the lodestar method, principles often 

invoked in cases involving attorney fee awards under statutes. This argument therefore 

fails.
11

Hall sought an hourly rate of $525, $425 for his associates, and $225 for his paralegal, 

the trial court concluded these requested hourly rates were too high. It determined a 

reasonable hourly rate was $425 for Hall, $400 for his associates, and $150 for his 

paralegal. The trial court found the majority of the hours of work performed was 

reasonable, but reduced some time for clerical tasks and discovery work. The record 

shows the trial court multiplied the number of hours reasonably expended with the 

reasonable hourly rate. The trial court concluded the reasonable amount of fees for each 

attorney and paralegal and awarded a total of $175,252.50 in attorney fees to Nancy.

5

 

Thomas makes several arguments the fee award was unreasonable. Not one 

is convincing, as discussed below.

1. Limited Success and Apportionment

Thomas argues the fee award should be reduced because Nancy achieved 

limited success in her lawsuit. Specifically, he calls for apportionment between 

successful and unsuccessful claims. He contends, because Nancy withdrew her lack of 

capacity claim, the attorney fee award under section 15657.5 should be reduced by 33 

percent, leaving only 326.34 billable hours. Thomas then asserts, because Nancy did not 

prevail on several claims, the 326.34 billable hours should be reduced by 62 percent, 

resulting in 124.01 billable hours. Thomas argues, at a blended hourly rate of $437.29, 

Nancy’s attorney fee award should be $54,228.33.

Thomas raises these arguments in his opening brief without citing any 

supporting legal authority. We therefore decline to address these arguments and deem 

them forfeited. (Martine, supra, 27 Cal.App.5th at p. 728.) Although Thomas cites legal 

authority for the first time in his reply brief, we do not consider those arguments because 

5

The attorney fee amounts were determined to be as follows: $78,157.50 

for Hall; $23,360 for Coppernoll; $4,920 for McMahon; and $59,320 for Afati. The court 

found the reasonable amount for the paralegal to be $9,495.
12

he did “not explain the delayed presentation of those arguments.” (Allen v. City of 

Sacramento (2015) 234 Cal.App.4th 41, 65.) 

Even if we were to consider the merits of Thomas’s arguments, we would 

find them unpersuasive. “‘Once a trial court determines entitlement to an award of 

attorney fees, apportionment of that award rests within the court’s sound discretion.’”

(Hoffman v. Superior Ready Mix Concrete, L.P. (2018) 30 Cal.App.5th 474, 485

(Hoffman).) “‘“[F]ees need not be apportioned between distinct causes of action where 

plaintiff’s various claims involve a common core of facts or are based on related legal 

theories.” [Citation.] Apportionment is not required when the issues in the fee and 

nonfee claims are so inextricably intertwined that it would be impractical or impossible to 

separate the attorney’s time into compensable and noncompensable units.’” (Ibid.)

Here, the record, including Nancy’s motion for attorney fees and the trial 

court’s order, substantiates the trial court’s implied finding that Nancy incurred attorney 

fees on claims with a common core of facts. All the claims revolved around Thomas’s 

acts of financial elder abuse, the basis of the attorney fee award under section 15657.5, 

subdivision (a). Furthermore, the issues were “so inextricably intertwined that it would 

be impractical or impossible to separate the attorney’s time” between financial elder 

abuse and Nancy’s other theories. (Hoffman, supra, 30 Cal.App.5th at p. 485.) We have 

also found no cases requiring apportionment under section 15657.5, subdivision (a).

2. Plain Error and Calculation of Fee Award

Thomas argues, for the first time in his reply brief, the trial court committed 

“plain error.” He contends the trial court failed to specify how it calculated its reduction 

of time in its fee award. Thomas also appears to rely on the plain error rule under rule 52 

of the Federal Rules of Criminal Procedure (18 U.S.C.).

“[W]e will not consider matters raised for the first time in the reply brief.” 

(Sachs v. Sachs (2020) 44 Cal.App.5th 59, 66.). Even if we were to consider these

arguments, we would conclude: “‘No specific findings reflecting the court’s calculations 
13

[are] required. [Citation.] “The record need only show that the attorney fees were 

awarded according to the ‘lodestar’ or ‘touchstone’ approach.”’”6(Lockaway, supra, 216 

Cal.App.4th at p. 193.) Additionally, rule 52 of the Federal Rules of Criminal Procedure 

(18 U.S.C.) is irrelevant here; the present case is not a federal criminal case.

3. Comparable Attorney Fees

Thomas argues, for the first time on appeal, an attorney provided him a fee 

estimate for the defense of his case and this fee estimate should be used as a comparator

in awarding fees. In support, he attached the fee estimate to his opening brief. In his 

reply brief, Thomas contends using comparable attorney fees is a generally accepted 

valuation method, relying on a State Board of Equalization handbook and section 

15657.1. 

We reject these arguments. First, we decline to address them and deem 

them forfeited because “‘issues not raised in the trial court cannot be raised for the first 

time on appeal.’” (Johnson v. Greenelsh (2009) 47 Cal.4th 598, 603 (Johnson).) Second, 

we will not consider Thomas’s attachment of the fee estimate to his opening brief. The 

attachment is not part of the appellate record and violates the rules of appellate 

procedure. (See Hodge v. Kirkpatrick Development, Inc. (2005) 130 Cal.App.4th 540, 

546, fn. 1 [declining to consider an attachment to a brief that was “not part of the record 

on appeal”]; Cal. Rules of Court, rule 8.204(a)(1)(B) [“A party filing a brief may attach 

copies of exhibits or other materials in the appellate record or copies of relevant local, 

6

In his reply brief, under the heading, “Maintaining Contemporaneous 

Records Minimizes Inaccuracies,” Thomas argues Nancy incorrectly cites PLCM for the 

proposition that “California law does not require time records, so ‘there is no required 

level of detail’ to justify a fee award.” He then uses this mistake as a basis to argue 

Nancy’s analysis of the trial court’s order is flawed and the trial court did not apply its 

stated reduction of hours in its fee award. Although Nancy misattributes the quote, 

“‘there is no required level of detail,’” to PLCM, she cites the case wherein that quote is 

found a couple of sentences later in her brief. (See Syers Properties III, Inc. v. Rankin 

(2014) 226 Cal.App.4th 691, 699 [“‘Because time records are not required under 

California law . . . , there is no required level of detail that counsel must achieve’”].) 
14

state, or federal regulations or rules, out-of-state statutes, or other similar citable 

materials that are not readily accessible” (italics added)].) Third, Thomas’s reliance on a 

State Board of Equalization handbook and on section 15657.1 is raised in his reply brief 

for the first time, and we consider it forfeited. (Ione Valley, supra, 33 Cal.App.5th at p. 

173.)

4. Mediation and Settlement Negotiations

In his opening brief, under the heading, “Mediation and Settlement,”

Thomas describes the parties’ mediation and settlement efforts and appears to argue, for 

the first time on appeal, Nancy refused to settle the case. In his reply brief, Thomas

argues settlement would have been proper and, for the first time in his reply brief, 

contends Nancy failed to comply with the trial and appellate courts’ requests to settle the 

case. We reject these arguments because Thomas did not raise this issue in the trial court

and presents a new argument regarding this issue for the first time in his reply brief. 

(Johnson, supra, 47 Cal.4th at p. 603); Ione Valley, supra, 33 Cal.App.5th at p. 173). 

5. Travel Time

Thomas argues Nancy’s counsel block billed, combining travel time with 

meetings. He argues this practice prevented the trial court from determining the 

reasonableness of these billings.

We reject these arguments and treat them as forfeited for a few reasons. 

First, Thomas broadly objected to this block billing practice, without citing specific 

billing entries, before the trial court. (Lunada Biomedical v. Nunez (2014) 230 

Cal.App.4th 459, 488 [“‘Failure to raise specific challenges in the trial court forfeits the 

claim on appeal’”].) Second, Thomas does not cite any legal authority. (Hernandez, 

supra, 37 Cal.App.5th at p. 277.) Third, he fails to “make a ‘cognizable argument on 

appeal as to why the trial court abused its discretion.’” (Ibid.) He merely repeats “the 

arguments made in support of the motion in the trial court,” which is insufficient. (Ibid.)
15

Thomas also contends any meetings requiring travel appear duplicative and 

wasteful and points to Nancy’s counsel, Hall and Afati, billing identical time for travel 

during the trial in this case. But Thomas does not explain how the trial court abused its 

discretion. Thus, we reject these arguments and deem them forfeited. (Martine, supra, 

27 Cal.App.5th at p. 728.) 

Thomas then argues, for the first time on appeal, the Department of Motor 

Vehicles does not require an attorney to travel in an automobile and the trial court should 

have awarded travel costs based on the United States Internal Revenue Service’s per 

diem mileage rate. Thomas also challenges, for the first time on appeal, specific items in 

the billing statement. We decline to address these arguments as they were not raised in 

the trial court. (See Johnson, supra, 47 Cal.4th at p. 603.)

IV.

THE TRIAL COURT ABUSED ITS DISCRETION IN AWARDING SOME COSTS

A. Standard of Review

“A costs award is reviewed on appeal for abuse of discretion” and, under 

the abuse of discretion standard, “our task includes determining whether the 

amount awarded was supported by substantial evidence.” (El Dorado Meat Co. v. 

Yosemite Meat & Locker Service, Inc. (2007) 150 Cal.App.4th 612, 617.) “‘If the trial 

court has made no findings, the reviewing court will infer all findings necessary to 

support the judgment and then examine the record to see if the findings are based on 

substantial evidence.’” (Frei v. Davey (2004) 124 Cal.App.4th 1506, 1512 (Frei).)

But “the appellate court does not merely rubber-stamp the trial court’s 

decision. ‘Our search for substantial evidence in support of the judgment “does not mean 

we must blindly seize any evidence in support of the respondent in order to affirm the

judgment. The Court of Appeal ‘was not created . . . merely to echo the determinations 

of the trial court. A decision supported by a mere scintilla of evidence need not be

affirmed on review.’ [Citation.] ‘[I]f the word “substantial” [is to mean] anything at all,
16

it clearly implies that such evidence must be of ponderable legal significance. Obviously 

the word cannot be deemed synonymous with “any” evidence. It must be reasonable . . . ,

credible, and of solid value. . . .’ [Citation.] The ultimate determination is whether a 

reasonable trier of fact could have found for the respondent based on the whole record. 

[Citation.] While substantial evidence may consist of inferences, such inferences must be 

‘a product of logic and reason’ and ‘must rest on the evidence’ [citation]; inferences that 

are the result of mere speculation or conjecture cannot support a finding.”’” (Frei, supra, 

124 Cal.App.4th at p. 1512.)

B. Applicable Law

“[A] prevailing party in a civil proceeding is entitled to the recovery of 

costs. (Code Civ. Proc., § 1032, subd. (b).) ‘Code of Civil Procedure “[s]ection 1032 is 

the fundamental authority for awarding costs in civil actions. It establishes the general 

rule that ‘[e]xcept as otherwise expressly provided by statute, a prevailing party is 

entitled as a matter of right to recover costs in any action or proceeding.’” [Citation.]’ 

[Citation.] The ‘“‘items . . . allowable as costs under [s]ection 1032’”’ are enumerated in 

Code of Civil Procedure section 1033.5.” (Sanders, supra, 164 Cal.App.4th at pp. 438–

439.) Section 15657.5, the attorney fee statute here, “invokes application of Code of 

Civil Procedure section 1032, and by reference, the cost list in Code of Civil Procedure 

section 1033.5.” (Id. at p. 439.)

Lodging and parking costs are not listed in Code of Civil Procedure section 

1033.5 as allowed or disallowed costs. (Code Civ. Proc., § 1033.5, subds. (a) & (b).) 

Therefore, the trial court may exercise its discretion in allowing or denying such costs. 

(Code Civ. Proc., § 1033.5, subd. (c)(4).) But “allowable costs shall be reasonably 

necessary to the conduct of the litigation rather than merely convenient or beneficial to its 

preparation.” (Code Civ. Proc., § 1033.5, subd. (c)(2).)
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C. Procedural Requirements

To recover costs, a prevailing party must file a memorandum of costs. 

(Cal. Rules of Court, rule 3.1700(a)(1).) If an opposing party seeks to contest the costs, 

the opposing party must file a motion to strike or tax costs within “15 days after service 

of the cost memorandum.” (Cal. Rules of Court, rule 3.1700(b)(1).) “Unless objection is 

made to the entire cost memorandum, the motion to strike or tax costs must refer to each 

item objected to by the same number and appear in the same order as the corresponding 

cost item claimed on the memorandum of costs and must state why the item is 

objectionable.” (Cal. Rules of Court, rule 3.1700(b)(2).) “After the time has passed for a 

motion to strike or tax costs or for determination of that motion, the clerk must 

immediately enter the costs on the judgment.” (Cal. Rules of Court, rule 3.1700(b)(4).)

As Nancy argues, Thomas did not file a motion to strike or tax costs to 

contest the claimed costs. Typically, the “‘failure to file a motion to tax costs constitutes 

a waiver of the right to object.’” (Douglas v. Willis (1994) 27 Cal.App.4th 287, 289.) 

But, in his opposition to Nancy’s motion for attorney fees, Thomas objected to certain 

costs “in the same order as the corresponding cost item claimed on the memorandum of 

costs and” explained why certain costs were objectionable. (Cal. Rules of Court, rule 

3.1700(b)(2).) We conclude the trial court, given it considered Thomas’s opposition to 

Nancy’s motion for attorney fees and awarded costs to Nancy, implicitly found Thomas’s 

opposition as functionally equivalent to a motion to tax costs “under the rule that 

substance trumps form.” (See Alan S. v. Superior Court (2009) 172 Cal.App.4th 238, 

260 [treating objections as a motion to tax costs].)

Nancy also argues Thomas’s opposition to Nancy’s motion for attorney 

fees was untimely filed. But the record indicates the trial court deemed his opposition 

timely filed, and “a trial court has broad discretion to accept or reject late-filed papers. 

(Cal. Rules of Court, rule 3.1300(d).)” (Rancho Mirage Country Club Homeowners 

Assn. v. Hazelbaker (2016) 2 Cal.App.5th 252, 262.) In a minute order on December 4, 
18

2020, the trial court stated it would allow Thomas to file his opposition. Moreover, in its 

order awarding attorney fees and costs, the trial court stated it considered Thomas’s 

opposition. Significantly, nothing in the record suggests the trial court rejected the 

opposition as untimely. (Cal. Rules of Court, rule 3.1300(d) [“If the court, in its 

discretion, refuses to consider a late filed paper, the minutes or order must so indicate”].)

D. Lodging and Parking Costs

Thomas argues the trial court failed to “address the fraudulent nature of the 

costs.” Specifically, Thomas challenges the costs purportedly incurred by Albertson, 

$2,395.67 for lodging and $73 for parking, because Nancy’s motion for attorney fees 

does not mention Albertson performing any work on the case and because the billing 

statement lacks any entries by Albertson. Thomas then implies Nancy’s counsel did not 

incur any lodging costs, because Nancy’s counsel claimed daily travel costs from 

Carlsbad to Santa Ana during trial from January 15 to January 20, 2020, and because 

Nancy’s counsel provided “no substantive documentation” in support of the lodging 

costs. 

On this record, it is unclear who Albertson is. It is also unclear whether 

Albertson or someone else incurred these lodging and parking costs. Albertson is the 

“[u]ser” associated with these costs on a document entitled, “Activities Export,” which 

does not appear to be a billing statement. Both of Nancy’s counsel submitted billing for

travel time from Carlsbad to Santa Ana, which raises the question whether lodging was 

necessary. Without knowing who incurred these costs—whether multiple attorneys or 

staff claimed these costs, or whether lodging was even necessary—we find the lodging 

and parking costs were excessive and unreasonable. We therefore find the trial court 

abused its discretion in awarding $2,395.67 in costs for lodging expenses and $73 in costs 

for parking expenses.

We acknowledge the procedure for claiming costs was somewhat 

convoluted in the trial court and may have prevented Nancy from submitting evidence in 
19

support of these lodging and parking costs. “If the items appearing in a cost bill appear to 

be proper charges, the burden is on the party seeking to tax costs to show that they were 

not reasonable or necessary. On the other hand, if the items are properly objected to, they 

are put in issue and the burden of proof is on the party claiming them as costs.” (Ladas v. 

California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774.) Once Thomas objected to 

these lodging and parking costs, the trial court should have provided Nancy an 

opportunity to meet her burden of proof in claiming these costs. We therefore remand to 

the trial court to conduct a hearing to reconsider these claimed lodging and parking costs.

DISPOSITION

The portion of the postjudgment order awarding Respondent $2,395.67 in 

costs for lodging expenses and $73 in costs for parking expenses is reversed. We remand 

to the trial court to hold a hearing to reconsider whether Respondent is entitled to such 

lodging and parking costs. The trial court shall permit the parties to present additional 

relevant evidence and argument at the hearing. In all other respects, the postjudgment 

order awarding attorney fees and costs is affirmed. 

In the interests of justice, the parties shall bear their own costs on appeal. 

(Cal. Rules of Court, rule 8.278(a)(5).)

MOTOIKE, J.

WE CONCUR:

GOETHALS, ACTING P. J.

SANCHEZ, J.