1 Filed 2/28/13 Williams v. Safire CA1/5


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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

KEVIN B. WILLIAMS, Plaintiff and Appellant,

v. ERIC M. SAFIRE et al., Defendants and Respondents. A132145

(San Francisco City and County Super. Ct. No . CGC-05-440797)

After this court dismissed a prior a ppeal by plaintiff Kevin B. Williams (appellant), defendants Eric M. Safire and John Houston Scott (respon dents) filed a cost memorandum in the superior court, seeking to recover their costs on appeal. Appellant moved to tax costs; the superior court denied the motion and awarded the costs sought by respondents. Appellant appeals from the order denying his motion. We affirm.
BACKGROUND In April 2005, appellants filed an ac tion for professional negligence against respondents, and the case was ordered to arbitra tion. The parties proceeded to arbitration,
and the arbitrator issued an award in respondents’ favor on May 8, 2008. The superior
court later vacated the arbitration award and or dered a rehearing in arbitration. Appellant filed a notice of appeal purporting to appeal from the superior court’s statement of decision ordering the parties back to arbitr ation. Respondents moved to dismiss the appeal on the ground that it was taken from a nonappealable order. Respondents also2 moved for sanctions against appellant on the ground that the appeal was frivolous (Cal. Rules of Court, rule 8.276(a)(1)), 1 seeking their attorney fees in preparing these motions, as well as their costs in designating the re cord, specifically, $2,275 for preparation of reporter’s transcripts. On November 10, 2010 , this court granted respondents’ motion to dismiss the appeal, but denied their motion for sanctions. (See Williams v. Safire (Nov. 10, 2010, A129600) (hereafter A129600).) On January 12, 2011, the remi ttitur issued, indicating that respondents were entitle d to recover their costs on appeal. Shortly thereafter, respondents filed a memo randum of costs in the superior court, seeking to recover $1,037.25 in court reporte r fees, the balance of their deposit for the preparation of a reporter’s transcript in A129600. 2 Appellant did not file a motion to tax
costs within the time a llowed by rules 8.278(c) and 3.17 00(b)(1). On March 8, 2011, he
filed a motion under Code of Civil Procedure section 473, 3 seeking relief from his failure to timely file a motion to strike or tax co sts. Respondents did not oppose appellant’s motion for relief and sought a determination on th e merits of their claim for costs. The superior court granted appellant relief from hi s failure to timely move to tax costs, but denied his motion to tax costs, concludi ng respondents were entitled to recover $1,037.25 in costs, as they were the prevailing party on appeal and those costs were reasonably incurred. Appellant filed a timely notice of appeal from the superior court’s order denying his motion to tax costs. Thereafter, respon dents filed a motion to dismiss the appeal, contending the order denying appella nt’s motion to tax costs is not an appealable order. We deferred disposition of respondents’ moti on to dismiss the appeal and consider it now, before addressing the merits of the appeal.

1 All rule references are to the California Rules of Court.
2 Respondents paid $2,275 in fees for repor ter’s transcripts in A129600 on September 7, 2010, when they filed thei r counter-designation of the re cord. On November 8, the superior court refunded $1,237.75 to responde nts. A129600 was the only appeal pending in the action at that time.
3 All undesignated section references are to the Code of Civil Procedure.3 DISCUSSION
I Respondents’ Motion to Dismiss This Appeal “The existence of an appealable [order or] judgment is a jurisdictional prerequisite to an appeal.” ( Jennings v. Marralle (1994) 8 Cal.4th 121, 126 .) “[If] the judgment or order is not appealable, the appeal mu st be dismissed. [Citation.]” ( Canandaigua Wine Co., Inc. v. County of Madera (2009) 177 Cal.App.4th 298, 302.) An appeal may be taken from a final judgment or an orde r made after judgment, but not from an interlocutory order. (§ 904.1, subd. (a)(1), (2).) Exceptions to the final judgment rule also may apply. ( Conservatorship of Rich (1996) 46 Cal.App.4th 1233, 1235 ( Rich ).) California’s appellate courts are divided as to whether an order on a motion to tax costs on appeal is an appealable order. In Barnes v. Litton Systems, Inc. (1994) 28 Cal.App.4th 681 ( Barnes ), the Second District held that an order taxing costs on appeal is not appealable. ( Id. at pp. 682, 685.) In Krikorian Premiere Theatres, LLC v. Westminster Central, LLC (2011) 193 Cal.App.4th 1075 ( Krikorian ), the Fourth District rejected the analysis in Barnes and held that “an order denying a motion to tax costs on appeal, in whole or in part, is immediately appealable.” ( Krikorian
, at p. 1085.)
Krikorian concluded, first, that such an order is appealable as an order after judgment under section 904.1, subdivision (a)(2). ( Krikorian , at p. 1085.) Relying on Markart v.
Ziemer (1925) 74 Cal.App. 152 ( Markart ) and Monson v. Fischer (1933) 219 Cal. 290 ( Monson ), Krikorian reasoned that, in the context of an award of costs on appeal, “the relevant final judgment is the judgment of the Court of Appeal . [Citation.] The Court of Appeal identifies the party entitled to costs. Any subsequent proceedings in the trial
court to fix the amount of the fees ar e essentially postjudgment proceedings in the appeal .” ( Krikorian
, at p. 1083; see Markart , at pp. 158-159; accord, Monson , at p. 291 [an order denying a party’s moti on to tax costs is appealable , as “[a]n order taxing costs on appeal is a special order ma de after final judgment.”].) Krikorian also noted that an award of costs is immediately enforceable and “ ‘ “. . . a complete judgment in itself that finds its origin in the order of an appellate . . . [c]ourt affirming or reversing a judgment of a lower court. The right to such judgm ent comes into being when the order of the4 reviewing court becomes final. The judgment itself is created when the successful party files his cost bill and his costs are taxed.” [C itations.]’ [Citation.] It cannot be affected by any further proceedings in the tr ial court. And there may never be any further proceedings in the appellate court. Thus, it is not preliminary to further proceedings within the meaning of Lakin [ v. Watkins Associated Industries (1993) 6 Cal. 4th 644].” ( Krikorian , at p. 1083; see rule 8.278 (c)(3) [“An award of costs [on appeal] is
enforceable as a m oney judgment.”].) Krikorian declined to follow Barnes , noting that
Barnes conflicted with Markart , “did not cite or discuss Monson or Markart ” or “explain why it was not following them,” and “overlooked the unique nature of an award of costs on appeal.” ( Krikorian , at pp. 1080-1083.)
Krikorian concluded, in any event, that the “c ollateral order” exception to the one final judgment rule applies to an orde r on a motion to tax costs on appeal. ( Krikorian
, supra , 193 Cal.App.4th at p. 1083.) The collate ral order exception allows a direct appeal from “an interlocutory order collateral to the main issue, dispositive of the rights of the parties in relation to the collateral matter, and directing [the] payment of money or performance of an act.” ( Rich
, supra , 46 Cal.App.4th at p. 1235, italics omitted.) This exception applies when (1) the judgment or orde r is final as to the collateral matter; and (2) the subject of the judgment or order is , in fact, collateral to the subject of the litigation. ( Sjoberg v. Hastorf (1948) 33 Cal.2d 116, 119; Marsh v. Mountain Zephyr,
Inc. (1996) 43 Cal.App.4th 289, 297-298.) Unde r the majority view, which the First District has adopted, a third element is also re quired: that the order direct the payment of money by the appellant or the performance of an act by or against the appellant. (Eisenberg, Horvitz & Wiener, Cal. Practice Gu ide: Civil Appeals and Writs (The Rutter Group 2012) ¶ 2:78, p. 2- 46 (rev. #1, 2012); see Rich
, supra , 46 Cal.App.4th at p. 1237 [“judicially compelled payment of money or performance of an act remains an essential prerequisite to the appealability of a final order regarding a colla teral matter”].) In concluding that an order on a motion to tax costs satisfies these requirements, Krikorian relied on the court’s reasoning in Markart , which “noted that an order taxing costs on appeal is ‘ancillary,’ unrelated to the even tual judgment on the merits, and effectively5 final with respect to the anc illary issue. [Citation.] It also noted that the order is immediately enforceable. [Citation.] And it expressed concern that the order might escape review entirely. [Citation.]” ( Krikorian , at p. 1083.) Krikorian concluded, accordingly, that the collateral order exceptio n applied because “[t]he appellate court has already determined which party is entitled to costs on appeal; the trial court need only determine the appropriate amount of such costs. Both issues can be decided independently from any other issues in the action. Thus, the order is final with respect to the issue of costs on appeal.” ( Ibid. ) The court also concluded that the third element of the collateral order exception was met, findi ng “no meaningful distinction between an
order awarding costs and an order denying a motion to tax costs,” as “[t]he effect of an order denying a motion to tax costs, in whole or in part, is that the moving party must pay the costs allowed. Moreover, the award of co sts is immediately enforceable ‘as a money judgment.’ [Citation.]” ( Id. at p. 1084.)
Krikorian states the better view, based on the relevant precedent regarding postjudgment orders and the applicab le exception for collateral orders. 4 Respondents rely on Distefano v. Hall (1963) 218 Cal.App.2d 657 ( Distefano ), in contending the First Distri ct “falls in line with Barnes .” To the extent this suggests Distefano followed Barnes , it is misleading, as Distefano was decided over 30 years
earlier and does not consider the distinction articulated in Krikorian for costs on appeal. Distefano is distinguishable, in any case, as it addr esses the denial of costs “on account of the trial of said action.” ( Distefano , at p. 680; see also pp. 680-681.) As in Krikorian
, our conclusion here turns on “the uni que nature of an award of costs on appeal .” ( Krikorian
, supra , 193 Cal.App.4th at p. 1083.)

4 The collateral order exception was not at issue in Barnes . ( Barnes , supra , 28 Cal.App.4th at p. 685, fn. 4 [waiver by failing to assert the exception].) The court did note in dicta: “[W]e would be compelled to conclude the order taxing costs would be nonappealable” because it was not an order to pay money. ( Ibid. ) That analysis is inapplicable here. In Barnes , the order at issue granted the defendant’s motion to tax costs, denying those costs to appellant; here, th e superior court awarded the costs at issue, effectively directing a ppellant to pay them.6 We conclude, accordingly, th at the order denying appellant’s motion to tax costs is an appealable order, deny respondents’ July 5, 2011 motion to dismiss the appeal, and
turn to the merits.
II. The Denial of Appellant’s Reque st for a Statement of Decision Appellant contends the superior court committed reversible error in denying his request for a statement of decisi on on his motion to tax costs. At the outset of the hearing, appellant requested a statement of decision under
sections 1291 and 632. Neith er of these provisions require s a statement of decision on appellant’s motion to tax costs. Section 1291 states: “A statement of decision shall be made by the court, if requested pursuant to Section 632, whenever an order or judgment, except a special order after final judgment, is made that is appealable under this title .” (Italics added.) As the superior court proper ly noted, nothing in title 9 of the Code of Civil Procedure, which governs arbitrati on proceedings, makes an order denying a motion to tax costs appealable. Section 632 also has no application here , as it applies only “upon the trial of a question of fact by the court. ” Appellant has not shown that his motion to tax costs constitutes a trial of a factual question. Ind eed, under section 632, a statement of decision “is neither required nor availabl e upon decision of a motion.” ( Lavine v. Hospital of the
Good Samaritan (1985) 169 Cal.App.3d 1019, 1026.)
III

. The Superior Court’s Denial of Appellant’s Motion to Tax Costs
A. This Court’s Denial of Sanctions in A129600 Appellant contends the superior court erre d in awarding the same costs this court
declined to award as sancti ons in A129600. As responde nts correctly note, appellant
“confuses the standards for a motion for sanc tions with the provisions of rule 8.278 providing for the prevailing party to recover its costs.” Sanctions awarded for a frivolous appeal may include costs on appeal (rule 8.2 76(a)); but a party also may be entitled to costs as the prevailing party, even where sanc tions are not warranted (see rule 8.278(a)(1) [“[T]he party prevailing in the Court of Appeal in a civil case other than a juvenile case is entitled to costs on appeal”]; ru le 8.278(a)(2) [“The prevailing party is the respondent if7 the Court of Appeal . . . dismisses the appeal ”]). In this case, the remittitur provided for respondents to recover their costs on appeal as the prevailing party following dismissal of A129600. (Rule 8.278(b)(1) [“The Court of Appeal clerk must enter on the record, and
insert in the remit titur, a judgment awarding costs to the prevailing party under [rule 8.278(a)(2)] . . . .”].) “If th e appellate court’s opinion spec ifies a costs award, the trial court may not deviate from that specificati on.” (Eisenberg, Horvitz & Wiener, Cal. Practice Guide: Civil Appeals and Writs, supra , ¶ 14:70.1, p. 14-15 (rev. #1, 2010).)
B. The Necessity of the Transcripts In contending the superior court erre d in granting respondents their costs on appeal, appellant argues the transcripts at is sue were unnecessary to the appeal because (1) they do not relate to wh ether the appeal was taken from a nonappealable order; and (2) respondents could have requested an exte nsion to designate the record while they moved to dismiss the appeal. At the outset, we note that neither rule 8.278 nor rule 3.1700, which set forth the procedure for re covering costs on appeal, requires that the costs be “necessary” to the appeal. ( Alan S. v. Superior Court (2009) 172 Cal.App.4th 238, 261 ( Alan S. ) [noting that unlike § 1033.5, subd . (c)(2), which governs the recovery of trial costs, rule 8.278(d) “makes no referenc e to necessity as a fact in what part of the appellate record is recoverable as a cost” ].) Rule 8.278(d)(1)(B) provides that a party may recover, if reasonable , “[t]he amount the party paid for any portion of the record . . . ,” including the reporter’s transcript. (S ee Advisory Com. com. to rule 8.278(d).) In concluding the transcript costs were reasonable, the superior court found “it could reasonably have been foreseen that the Court of Appeal might have rejected [respondents’ argument that the order was not appealable] and therefore gotten to the merits of the appeal and therefore needed a record. It would have been, in my view, arguably unwise to proceed wi thout a record under these ci rcumstances.” Substantial evidence supports the superior court’s conclusion. ( Jewell v. Bank of America (1990) 220 Cal.App.3d 934, 941.) Appellant also has not provided auth ority and analysis demonstrating that respondents acted unreasonably in not seeking an extension of time in which to counter-8 designate the record. Substa ntial evidence perm its a finding that respondents acted reasonably in protecting their rights by filing a timely counter-designation of the record, notwithstanding their intention to move to dismiss the appeal.
C. Designation of The Transcr ipts in a Prior Appeal Relying on rule 8.278(d )(1)(B), appellant maintains the transcripts are not
recoverable as costs because th ey were designated as part of the pertinent record in a prior appeal ( Williams v. Safire (Jan. 30, 2009 , A122528) (herea fter A122528)). 5 Rule 8.278(d)(1)(B) states, in part, “The cost to copy parts of a prior record under rule 8.147(b)(2) is not recoverable unless the Cour t of Appeal ordered the copying.” Rule 8.147(b)(2) is inapposite here, as it applies to “[a] party wanting any parts of a clerk’s transcript or other record of the written documents from a prior appeal in the same case to be copied into the clerk’s transcri pt in a later appeal . . . .” To the extent appellant argues that respon dents failed to meet their burden to show these transcripts were recovera ble as costs in A129600, he is mistaken. A verified costs memorandum establishes a prima facie case fo r the recovery of costs; once that is submitted, the burden is on the party moving to strike or tax costs to establish that each disputed item is not recoverable. (See Bach v. County of Butte (1989) 215 Cal.App.3d 294, 308 [“[A] properly verified memorandum of costs is considered prima facie
evidence that the costs listed in the memorandum were necessa rily incurred. [Citation.]
Documentation must be submitte d only when a party dissatisfi ed with the costs claimed in the memorandum challenges them by f iling a motion to tax costs.”]; accord, Alan S.
, supra , 172 Cal.App.4th at pp. 260-261.) Thus, respondents met their burden by submitting a verified cost memo randum; the burden then passed to appellant to show the

5 Appellant raised this argument for the fi rst time below in his reply memorandum in support of his motion to tax costs. In his opening brief on appeal, appellant also notes that he “already paid for [the] preparation [o f these transcripts] several years ago,” when they were designated in conn ection with A122528. To the extent he argues respondents acted unreasonably in designating transcripts that were previously designated and paid for in connection with an earlie r appeal, he did not make this point in the trial court and has forfeited the right to assert it.9 transcripts had been designated in a prior appeal. He failed to meet his burden, as he did not present any evidence to su pport such a showing, relyi ng instead on vague statements in his reply brief. ( Rappenecker v. Sea-Land Service, Inc. (1979) 93 Cal.App.3d 256, 266 [“mere statements in the po ints and authorities accompanyi ng [the] notice of motion to
strike cost bill . . . are insufficient to rebut the prima facie showing”].) Appellant has not shown that the supe rior court erred in denying his motion. 6
DISPOSITION Respondents’ motion to dismiss the appeal is denied. The superior court’s order is affirmed, with costs to respondents.

SIMONS, J.

We concur.

JONES, P.J.

BRUINIERS, J.

6 Appellant’s May 1, 2012 reque st for judicial notice is de nied as it relates to the reporter’s transcripts at issue in the motion to tax costs; contrary to his assertion, these transcripts do not “offer irrefutable proof of a prior appellate record that matches ‘Respondent’s Notice Designa ting Record on Appeal,’ ” and the content of these transcripts is not relevant to our analysis in any event. Appellant’s request for judicial notice also is denied as it relates to two settlement letters from respondents. Appellant does not provide authority showing judicial notic e of such materials is proper, and we are not aware of any.