Black v. Fireman's Fund Ins. Co. CA1/1 ( 2023 )

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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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
A165731
Appellant,
v. (San Mateo County
Super. Ct. No. CIV511997)
FIREMAN’S FUND INSURANCE
COMPANY,
Cross-defendant and
Respondent.
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
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