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Filed 5/11/23 Black v. Fireman’s Fund Ins. Co. CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or 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 ONE

DOMINIQUE BLACK,

Cross-complainant and 

 Appellant,

v.

FIREMAN’S FUND INSURANCE 

COMPANY,

Cross-defendant and 

 Respondent.

 A165731

 (San Mateo County

 Super. Ct. No. CIV511997)

Dominque Black appeals from a trial court order amending the 

judgment to include costs that respondent Fireman’s Fund Insurance 

Company (Fireman’s Fund) incurred in the trial court and two prior appeals. 

Black did not challenge the costs in the trial court. Because Black has 

forfeited his appellate arguments, we affirm the amended judgment.

DISCUSSION

This is the fourth opinion we have issued in this case. We recite only 

the facts and procedural history necessary for the disposition of this appeal. 

The parties are familiar with the facts and history, and our opinion does not 
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meet the criteria for publication. (Cal. Rules of Court, rule 81105(c).)1 We 

thus resolve the case before us with an abbreviated written opinion with 

reasons stated. (Cal. Const., art. VI, § 14.)

Fireman’s Fund sued Black for civil extortion and other causes of action 

over threats he made after he submitted an insurance claim that was denied. 

Fireman’s Fund ultimately dismissed its complaint with prejudice, but the 

litigation did not end because Black filed a cross-complaint. That part of the 

litigation also ended in Fireman’s Fund’s favor after the trial court granted 

the company’s request to dismiss the cross-complaint for failure to bring the 

case to trial within five years. 

This current appeal arises from an award of costs that Fireman’s Fund 

incurred over the course of the litigation. Three separate memoranda 

reflected costs incurred by the company in different phases. The first phase 

relevant to this appeal was marked by our opinion in the second appeal in 

this case. (Black v. Fireman’s Fund Insurance Company (Apr. 23, 2020, 

A155428) [nonpub. opn.] (Black II).) In Black II, we affirmed an award of 

sanctions against Black, and we awarded appellate costs to Fireman’s Fund. 

Shortly after the remittitur was issued, Fireman’s Fund filed in the trial 

court a memorandum of costs seeking $1,256.70 for the appellate costs it 

incurred in litigating Black II. Black did not file a motion to strike or to tax 

costs.

On October 13, 2020, the trial court entered judgment in favor of 

Fireman’s Fund and against Black. The following month, Fireman’s Fund 

filed in the trial court a second memorandum of costs, seeking $18,010.97 for 

the costs it incurred in litigating the proceedings in the trial court. Black 

again did not file a motion to strike or to tax costs.

1 All rule citations are to the California Rules of Court.
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In June 2021, we issued our third opinion in this case. (Black v.

Fireman’s Fund Insurance Company (June 30, 2021, A161284) [nonpub. opn.] 

(Black III).) In Black III, we again awarded appellate costs to Fireman’s 

Fund. Shortly after the remittitur was issued, Fireman’s Fund filed in the 

trial court a third memorandum of costs, this one seeking $1,905.20 for the 

appellate costs incurred in litigating Black III. Black again did not file a 

motion to strike or to tax costs.

Because the three memoranda of costs remained pending, in May 2022 

Fireman’s Fund asked the trial court to amend the judgment to include an 

award of costs in the amount of $21,172.87, reflecting the combined total of 

the three memoranda. In early June, the trial court granted the motion. In 

doing so, it explained, “Fireman’s Fund . . . filed a Memorandum of Costs on 

Appeal in the amount of $1,256.70 on July 30, 2020, a Memorandum of Costs 

(Summary) in the amount of $18,010.97 on November 2, 2020, and a 

Memorandum of [C]osts on Appeal in the amount of $1,905.20 on October 5, 

2021. [Black] did not file any motion to tax the costs listed on these three 

cost memoranda, and his deadline to do so has now passed.” Accordingly, the 

trial court amended the judgment to award Fireman’s Fund costs in the total 

amount of $21,172.87. 

In light of this procedural background, we must reject the arguments 

Black now raises to challenge the amended judgment. To begin with, we 

reject Black’s arguments challenging an award of attorney fees since the trial 

court plainly did not award any such fees. Black’s heavy reliance on 

Gorman v. Tassajara Development Corp. (2009) 178 Cal.App.4th 44 is thus 

wholly misplaced since it arose in an entirely different procedural posture. 

And we reject Black’s remaining arguments because they were forfeited 

by Black failing to contest the imposition of costs in the trial court. The 
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relevant rule of court provides that a prevailing party must serve and file a 

memorandum of costs within 15 days after the date of service of the notice of 

entry of judgment or dismissal, which Fireman’s Fund did here. 

(Rule 3.1700(a)(1).) The rule explicitly provides, “Any notice of motion to 

strike or to tax costs must be served and filed 15 days after service of the cost 

memorandum.” (Rule 3.1700(b)(1).) Black filed no such motion. The rule 

further provides that “[a]fter 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.” (Rule 3.1700(b)(4).) By not objecting to the 

imposition of costs in the trial court, Black forfeited his ability to challenge 

them on appeal. (See Oak Grove School Dist. v. City Title Ins. Co. (1963) 

217 Cal.App.2d 678, 698 [party who fails to file timely or proper objection to 

memorandum of costs waives right to object].)

We lastly address Fireman’s Fund’s request that sanctions be imposed 

against Black for pursing this appeal. Under California Code of Civil 

Procedure section 907 and rule 8.276(a)(1), we may award sanctions when an 

appeal is frivolous and taken solely to cause delay. “[A]n appeal should be 

held to be frivolous only when it is prosecuted for an improper motive—to 

harass the respondent or delay the effect of an adverse judgment—or when it 

indisputably has no merit—when any reasonable attorney would agree that 

the appeal is totally and completely without merit.” (In re Marriage of

Flaherty (1982) 31 Cal.3d 637, 650.)

Sanctions cannot be sought in a respondent’s brief, as Fireman’s Fund 

has done here. (Cowan v. Krayzman (2011) 196 Cal.App.4th 907, 919.) And 

although Fireman’s Fund has made a reasonable case for an award of 

sanctions, we would decline to award them in the exercise our discretion even 

if they had been properly sought by separate motion. (Winick Corp. v. County
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Sanitation Dist. No. 2 (1986) 185 Cal.App.3d 1170, 1181–1182 [whether to 

impose appellate sanctions is a matter within court’s discretion].)

DISPOSITION

The amended judgment is affirmed. Fireman’s Fund is awarded its 

appellate costs.
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_________________________

Humes, P.J.

WE CONCUR:

_________________________

Margulies, J.

_________________________

Banke, J.

Black v. Fireman’s Fund Insurance Company A165731