Filed 12/8/21 O’Neal v. Stanislaus County Employees’ Retirement Assn. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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

FIFTH APPELLATE DISTRICT

MICHAEL R. O’NEAL et al.,

Plaintiffs and Appellants,

v.

STANISLAUS COUNTY EMPLOYEES’

RETIREMENT ASSOCIATION,

Defendant and Respondent;

COUNTY OF STANISLAUS,

Intervener and Respondent.

F079887

(Super. Ct. No. 648469)

OPINION

APPEAL from a judgment of the Superior Court of Stanislaus County. Robert F. 

Moody, Judge. (Retired Judge of the Monterey Sup. Ct. assigned by the Chief Justice 

pursuant to art. VI, § 6 of the Cal. Const.)

Law Office of Michael A. Conger and Michael A. Conger for Plaintiffs and

Appellants.

Reed Smith, Harvey L. Leiderman and Maytak Chin; Damrell, Nelson, Schrimp 

and Fred A. Silva for Defendant and Respondent.
2.

Hanson Bridgett, Raymond F. Lynch, Adam W. Hofmann and Matthew J. Peck 

for Intervener and Respondent.

-ooOooAppellants, Michael R. O’Neal (O’Neal), Rhonda Biesemeier (Biesemeier), and 

Dennis J. Nasrawi (Nasrawi), appeal from an award of costs following a bench trial in 

which the trial court entered judgment denying their claims. Appellants are members of 

the retirement system operated by respondent Stanislaus County Employees’ Retirement 

Association (StanCERA). The intervener in this case, County of Stanislaus (County), is 

one of several employers required to fund the StanCERA retirement system.

The award of costs in this case followed the bench trial subject to the pending 

appeal in case No. F079201. A fuller view of the underlying facts can be found in our 

opinion in that matter, which affirms the judgment below. In this appeal, appellants 

contend the trial court incorrectly calculated the costs that could be properly awarded to 

StanCERA and County. 

First, appellants argue the trial court wrongly awarded costs arising prior to a 

reversed grant of summary judgment subject to a prior appeal. Appellants argue 

principles of res judicata should have bound the trial court to follow a prior costs award 

that had not been appealed. In addition, appellants contend certain costs were 

impermissibly awarded even if the prior order is not binding. Second, appellants contest 

certain costs awarded to StanCERA, claiming they are either specifically excluded by 

statute or their award constitutes an abuse of discretion. Third, appellants raise similar 

arguments to certain costs awarded to County. Ultimately, we agree with appellants that 

some of the presummary judgment costs and some of the postsummary judgment costs 

awarded to County were improper and thus order the cost awards reduced as discussed 

below. 
3.

FACTUAL AND PROCEDURAL BACKGROUND

For context, we begin with a general factual outline. However, we will include 

more specific facts as necessary when discussing each challenged cost. Shortly after 

judgment was entered in the underlying case, both StanCERA and County filed 

memoranda of costs. Appellants responded by filing a motion to tax costs, challenging 

several aspects of each party’s requests. 

In a position applicable to both StanCERA and County, appellants argued the trial 

court wrongly awarded costs that had been previously taxed. More specifically, the trial 

court had previously granted summary judgment to StanCERA and County. Following 

that judgment, it awarded costs, but struck several requests based on appellants’ motion 

to tax. Neither side appealed the costs award, but the summary judgment ruling was 

appealed and reversed by this court. During the present motion to tax costs, appellants 

argued that the trial court had correctly taxed certain costs in its prior ruling and because 

that ruling had not been appealed it was now binding on the court with respect to this 

costs motion. 

With respect to costs arising after the summary judgment appeal. Appellants 

challenged StanCERA’s request for certain exhibit costs and messenger fees. Appellants 

also challenged County’s request for certain deposition costs, service of process costs, 

transcript costs, court reporter fees, exhibit costs, and “[o]ther” costs (boldface omitted). 

The trial court rejected all appellants’ arguments and awarded StanCERA and 

County the full amount of costs requested. This appeal timely followed. 

DISCUSSION

As noted, appellants’ claims split into three main groupings. First, costs 

previously taxed after summary judgment but then awarded posttrial. Second, 

postsummary judgment costs awarded to StanCERA. And third, postsummary judgment 

costs awarded to County. We consider each in turn, discussing the specific costs 

challenged as we proceed through appellants’ challenges.
4.

Standard of Review 

We generally review a trial court’s decision to tax or strike costs for an abuse of 

discretion. However, “because the right to costs is governed strictly by statute [citation] a 

court has no discretion to award costs not statutorily authorized.” (Ladas v. California 

State Auto. Assn. (1993) 19 Cal.App.4th 761, 774 (Ladas).) To the extent the court’s 

authority turns upon interpreting the authorizing statutes, such interpretation is a question 

of law reviewed de novo. (See Vidrio v. Hernandez (2009) 172 Cal.App.4th 1443, 1452.)

Summary Judgment Costs Awarded Posttrial 

As noted above, appellants argue the trial court erred by awarding costs posttrial 

that it had previously denied postsummary judgment. In the course of this argument, 

appellants contend not only that this reversal is improper but also that the contested costs 

had been appropriately rejected in the previous proceedings. Appellants contend that 

principles of res judicata bars StanCERA and County from seeking fees that were 

previously denied. Appellants further suggest they should be permitted to challenge all 

presummary judgment costs awarded if their res judicata argument is rejected. 

StanCERA and County respond by arguing res judicata principles cannot apply in 

this situation for two reasons. First, because the 2015 costs order was not a final 

judgment due to the fact StanCERA and County were not prevailing parties following the 

appeal. Second, because there is no secondary litigation between the parties. StanCERA 

and County then argue that appellants have forfeited all arguments against awarding costs 

predating the prior appeal because they only argued res judicata principles in the trial 

court. 

We agree with StanCERA and County that res judicata does not apply in this 

instance. As StanCERA and County note, all proceedings in this instance fall within a 

single case, precluding any application of res judicata or law of the case principles. 

(Lennane v. Franchise Tax Bd. (1996) 51 Cal.App.4th 1180, 1185-1186.) Further, when 

this court reversed the grant of summary judgment, it placed the case in a posture as if no 
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judgment had been entered at all. (See Barnes v. Litton Systems, Inc. (1994) 28 

Cal.App.4th 681, 683-684 [citing cases in agreement].) At this point, the court lacked 

any statutory authority to hear an appeal on the costs award. (See id. at pp. 682-683 

[right to appeal is statutory and no provision specifically permits appeals of cost orders]; 

Code Civ. Proc.,

1 § 904.1, subd. (a)(2) [permitting appeals from order made after 

judgments].) The failure to appeal a nonappealable order is no basis to apply res judicata 

principles.

We do not agree, however, that the appropriateness of awarding costs that were 

previously denied has been forfeited by appellants in this case. Although no challenges 

were raised to previously awarded costs from the 2015 costs order, the record shows that 

appellants believed previously denied costs could not be appropriately awarded and 

sought judicial notice of the briefing and order showing why previously taxed costs were 

not originally proper. Both StanCERA and County then provided responsive argument 

on why those costs could be awarded under the statutory scheme. Based on this 

exchange, we conclude appellants properly preserved claims that previously disallowed 

costs should not be awarded either because they were statutorily improper or because 

they were previously denied. We see no basis to conclude, however, that appellants 

properly preserved any dispute over previously awarded costs and find those claims 

forfeited. 

We thus turn to whether the court could award the contested costs that had been 

taxed previously. We note at the outset that StanCERA and County have not provided 

any argument on why these challenged costs could be awarded under the statutory 

scheme. Nor do we find any basis in our own review. The costs taxed in 2015 but 

awarded in 2019 were: (1) $1,900.20 in summary judgment exhibit costs awarded to 

StanCERA; (2) $2,512.05 in costs awarded after appellants won a prior appeal awarded 

1 Subsequent statutory references are to the Code of Civil Procedure.
6.

to StanCERA; (3) $275.20 in summary judgment exhibit costs awarded to County; and 

(4) $33 in deposition costs for a person who was not deposed in the case awarded to 

County. 

We agree with appellant that summary judgment exhibit costs are not permitted 

under section 1033.5, subdivision (a)(13) because there is no trier of fact for which such 

exhibits can be helpful on summary judgment. We further find no statutory basis for 

effectively reversing an appellate court’s award of costs on appeal through subsequent 

posttrial cost proceedings or for awarding deposition costs for one not deposed in the 

litigation. With respect to the second and fourth noted cost awards, we find no 

reasonable jurist could award such costs under the facts of this case. We further find no 

persuasive authority for an award of summary judgment exhibit costs in the context 

presented here and thus conclude the trial court abused its discretion in awarding the first 

and third noted costs.

We therefore reduce the award of costs to StanCERA by $4,412.25 and the award 

of costs to County by $308.20.

Postappeal Costs Awarded to StanCERA 

Appellants challenge two costs awarded to StanCERA. In the first, StanCERA 

requested and was awarded costs in the amount of $1,726.50 for trial exhibits. In the 

second, StanCERA requested and was awarded costs in the amount of $1,219.90 for 

messenger fees incurred in 2017 and 2018.2 We find no error.

Trial Exhibits

With respect to trial exhibits, appellants recognize that costs for exhibits actually 

used at trial are permitted under section 1033.5, subdivision (a)(13). However, appellants 

contend this provision would only permit an award for one copy in the context of this 

2 StanCERA requested a total of $4,004.38 in messenger fees, with the remaining 

costs arising on or before the summary judgment ruling. 
7.

case “because the trier of fact only required, or used, one copy.” Appellants argue any 

additional copies constitute photocopy charges that are specifically excluded under 

section 1033.5, subdivision (b)(3). StanCERA responds by arguing exhibits are properly 

covered by section 1033.5, subdivision (a)(13) and copies of unused exhibits are 

discretionary under section 1033.5, subdivision (c)(4). StanCERA notes that subdivision 

(b)(3) of section 1033.5 specifically excludes exhibits from the photocopy exemption and 

points out that the number of copies corresponded with providing one for the clerk, judge, 

witness, and both relevant counsel. 

We agree with StanCERA. Copies of exhibits utilized at trial are costs falling well 

within the trial court’s discretion under section 1033.5, subdivision (a)(13). While 

appellants argue these particular copies were not reasonably necessary to the litigation, 

the trial court concluded otherwise in awarding the costs. We see no abuse of discretion

in awarding costs on a reasonable number of copies for trial exhibits. (See Nelson v. 

Anderson (1999) 72 Cal.App.4th 111, 133 [noting the burden of proof “is not an issue in 

this instance, since, having presided over the trial, the trial court had all the evidence 

needed to determine whether the items claimed were reasonably helpful to the trier of 

fact, and was in the best position to make the determination”].)

Messenger Fees

With respect to messenger fees, although appellants analogize them to disallowed 

costs such as overnight delivery charges and fax costs, appellants concede the award of 

such costs is within the trial court’s discretion. Appellants argue, however, that although 

discretionary, these costs were neither reasonable nor necessary because StanCERA was 

represented by local counsel who could have completed the relevant filings without the 

need for a messenger. StanCERA contends such fees are proper under section 1033.5, 

subdivision (c)(4)’s discretionary authority and cites to Ladas, supra, 19 Cal.App.4th at 

page 776, where messenger fees were properly awarded. StanCERA further argues the 

fees were reasonably necessary because it would be improper to burden local counsel, 
8.

who neither drafted nor argued any motions, with filing major documents in the case 

drafted by outside counsel. 

Again, we agree with StanCERA. The trial court presumedly reviewed the 

requested costs and found them reasonable. We see no abuse of discretion in that 

conclusion. While it may have been possible to utilize local counsel for filings, it is not 

unreasonable for outside counsel to handle the full spectrum of required filings when they 

are the ones drafting and arguing the motions.

Postappeal Costs Awarded to County 

Appellants challenge six groupings of costs awarded to County, covering eight 

specific awards. First are “Other” costs totaling $6,831.11, which include messenger fees 

of $4,927.42, “telephonic court appearances” of $366, and $1,537.69 for “UPS 

Shipping.” (Some capitalization omitted.) Second are deposition costs arising after 

2014, totaling $3,429.01. Third are costs totaling $2,740.08 for what appellants call 

unused trial exhibits. Fourth are $1,985.10 in costs for court reporter fees. Fifth are 

$415.20 in costs for “court-ordered transcripts.” (Capitalization omitted.) Sixth are $160 

in service of process costs. We consider each in turn.

Other Costs

In the context of the “Other” costs, appellants argue, and County concedes that the 

“UPS Shipping” charges should be excluded under section 1033.5, subdivision (b)(3). 

(Some capitalization omitted.) We agree with this concession, which reduces the costs 

awarded by $1,537.69. 

On the telephonic charges, appellants argue that these are statutorily excluded 

under section 1033.5, subdivision (b)(3). County agrees that telephone charges are 

improper but argues these are CourtCall costs, which are within the court’s discretion to 

award. Appellants reply that County’s claim was not proven in the trial court and thus 

cannot stand here. We do not agree with appellants. Appellants’ argument turns on the 

premise that the trial court had to consider these costs as telephone charges. However, 
9.

the submission shows they were charges for “Telephonic Court Appearance Fees.” The 

trial court would know whether or not the dates included with those charges 

corresponded to events where CourtCall was used and thus could distinguish between 

alleged telephone costs and CourtCall fees. We see no abuse of discretion in awarding 

the requested costs in this instance. 

On the messenger fees, appellants raise similar arguments to those contesting 

StanCERA’s messenger fees, contending County could have used its county counsel to 

complete its filings without incurring these costs. As with StanCERA’s similar costs, we 

find no general abuse of discretion on the trial court’s part. Appellants also argue, 

however, that the costs requested totaled only $4,425.17 and included $60.75 in costs 

related to proceedings before the California Supreme Court. County provides no 

response. Upon review, we agree that the total was miscalculated, although the court 

finds the total to be $4,395.17. And, consistent with our conclusion that the trial court 

erred in awarding costs from prior appeals, above, we also agree that the $60.75 award 

constitutes an abuse of discretion. We thus reduce the costs awarded by $593.

Deposition Costs

Turning to deposition costs awarded after 2014, appellants accept that such costs 

are proper but contend these costs were unreasonable because StanCERA and County 

should have shared the costs of depositions. We do not agree. The court’s discretion to 

determine reasonableness is broad and, while it would be more cost effective to share 

deposition costs, appellants identify no compelling reason why they must be shared. 

Accordingly, although this court may have viewed the issue differently in the first 

instance, appellants have not demonstrated an abuse of discretion by the trial court. 

Exhibit Costs

Looking next at exhibit costs, appellants raise two issues, contending first that 

costs related to exhibits not used at trial are not recoverable and, second, that County, like 

StanCERA, should be awarded costs for only one copy of each trial exhibit admitted. We 
10.

previously discussed the use of five copies of exhibits in the context of StanCERA’s 

costs, finding no abuse of discretion in the trial court’s award. We see no difference in 

County’s costs. Considering unused trial exhibits, the propriety of awarding such costs is 

currently pending before the California Supreme Court. (See Segal v. ASICS America 

Corporation (2020) 50 Cal.App.5th 659, 665-667, review granted Sept. 30, 2020, 

S263569.) This court has no published opinion on this point but has previously cited 

cases affirming that such costs can be awarded. 

Upon review, we agree with the analysis in Segal and conclude that costs for trial 

exhibits not ultimately used at trial may be awarded in the trial court’s discretion. (Segal 

v. ASICS America Corporation, supra, 50 Cal.App.5th at p. 666, review granted.) We 

note, however, that this conclusion is limited to trial exhibits that are not ultimately used 

at trial and does not reach to other types of exhibits. We further find no abuse of 

discretion on the trial court’s part in awarding costs in this case. Although appellants 

argue that County overdesignated exhibits, the trial court was in the best position to 

consider this argument and concluded such costs were reasonable. On the record here, 

we cannot conclude its decision was beyond the bounds of reason.

Court Reporter Fees

Considering court reporter fees, appellants take issue with the amount claimed and 

the fact that amount was double counted between StanCERA and County, while the 

record only shows StanCERA being billed. County recognizes that StanCERA was also 

awarded the full amount of costs that should have been split between StanCERA and 

County and “concedes that it and StanCERA are not both entitled to recover the full” 

costs. Upon review, and based on County’s concession, we agree these costs were 

incorrectly awarded. The trial court abused its discretion by awarding the same costs 

twice. We thus reduce the costs awarded County by $1,985.10.
11.

Court-ordered Transcripts

The next cost dispute is over “court-ordered transcripts.” (Capitalization omitted.) 

Under section 1033.5, subdivision (a)(9) costs for transcripts ordered by the court are 

recoverable, but under section 1033.5, subdivision (b)(5) costs for transcripts not ordered 

by the court are not recoverable. Appellants contend the trial court never ordered 

transcripts and, thus, these costs are not recoverable. County responds that appellant has 

not proven this negative and states the trial court would not have awarded the costs if 

they had not been ordered. We agree with appellants. There is no question that costs for 

transcripts not ordered by the trial court are not recoverable. The burden was thus on 

County to demonstrate the request was statutorily proper. (Ladas, supra, 19 Cal.App.4th 

at p. 774 [“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.”].) Yet the record contains no evidence 

or argument that the trial court ordered these transcripts. As such, the trial court abused 

its discretion in awarding costs for transcripts it did not order. We thus reduce the costs 

awarded County by $415.20.

Service of Process Costs

Finally, we consider the service of process cost of $160. Appellants argue this 

cost was unnecessary because there was an agreement to serve documents by e-mail. 

County responds that the cost is statutorily authorized and the trial court impliedly found 

it reasonable given County was serving its expert disclosures on the statutory deadline. 

Although a close call, we agree that County’s basis for utilizing service of process and 

seeking the associated costs is sufficient to permit the trial court to exercise its discretion 

and award the costs. The costs awarded were within the trial court’s discretion and we 

find no basis to conclude an abuse of discretion occurred. 
12.

Summary 

In summary, the trial court abused its discretion in awarding $4,530.99 in 

postappeal costs to County. The trial court further abused its discretion in awarding costs 

that were previously taxed after summary judgment, including $4,412.25 awarded to 

StanCERA and $308.20 awarded to County. Accordingly, the cost award to StanCERA 

shall be reduced by $4,412.25 and the cost award to County shall be reduced by 

$4,839.19.

DISPOSITION

The orders awarding costs to Stanislaus County Employees’ Retirement 

Association and County of Stanislaus are reversed. The matter is remanded to enter a 

new cost award, reducing StanCERA’s awarded costs by $4,412.25 and County’s 

awarded costs by $4,839.19. The parties shall bear their own costs on appeal.

DETJEN, J.

WE CONCUR:

POOCHIGIAN, Acting P. J.

MEEHAN, J.