MILLER, J.
On November 7, 2006, plaintiffs Dominick Cosolo, Glen Navalta, and Mae Navalta (collectively "plaintiffs") filed a complaint alleging causes of action against defendant Verizon Communications, Inc. (Verizon) and its various subcontractors for nuisance and negligence. On July 17, 2008, plaintiffs filed a third amended complaint in which they added a cause of action against the City of Chino (City) for inverse condemnation. Verizon eventually settled with plaintiffs for a total of $22,500 to plaintiffs collectively; the stipulated partial settlement agreement expressly reserved ruling on the issue of attorneys' fees and costs. The court later declared plaintiffs the prevailing party; it awarded attorneys' fees in the amount of $185,674.22 and costs in the amount of $12,829. Verizon appeals, contending plaintiffs were not legally entitled to costs and fees or, in the alternative, that the court abused its discretion in granting the awards. We affirm.
Plaintiffs alleged that in 2004, Verizon commenced a project to lay underground fiber optic cable in the City of Chino. Verizon applied for and obtained an encroachment permit from the City for the work to be performed. The permit required that Verizon comply with the provisions of Chino Municipal Code, Chapter 12.02: "Verizon `agree[s] to compensate the City of Chino and any other party for all costs to restore any and all damage to the public right-of-way, other city property; and other life or property; and for all remediation costs of all environmental damage caused, directly or indirectly, by [Verizon's] acts or omissions as required by Chapter 12.02 of the Chino Municipal Code.'" According to section 12.02.030 of the Chino Municipal Code "1) each applicant who, directly or indirectly, causes damages, interference or obstruction to such interests, rights, or property belonging to the city or private property shall restore same to like or better condition tha[n] existed prior to the damages, and 2) each applicant who fails to restore such interest, rights or property belonging to the city or private property shall be liable for all costs to restore same and for reasonable attorneys fees and expert witness fees in the event litigation and other legal action is required to collect such costs." In the event of such damage and remediation, the municipal code required that the restoration be done to the satisfaction of the City's director of public works.
On or about February 15, 2005, Verizon contracted with codefendant, The Fishel Corporation (Fishel), to act as the general contractor for the project. Fishel subcontracted different portions of the project to codefendants S&S Directional Drilling, Inc. (S&S) and Horizon Underground, Inc. (Horizon).
On or about March 28, 2005, Horizon punctured the lateral sewer line connecting the Navalta home to the City's main sewer line. The Navalta home was subsequently flooded with raw sewage. On or about May 17, 2005, Horizon punctured another lateral sewer line connecting the Cosolo home to the City's main sewer line. The Cosolo home was similarly flooded with raw sewage. Plaintiffs allegedly incurred damages including repairs and cleaning of their respective homes, temporary lodging expenses, diminution of their home values, and emotional distress.
After plaintiffs and the City's director of public works unsuccessfully attempted to resolve the issue with Verizon regarding the expenses incurred for the restoration of the plaintiffs' homes and other damages during the ensuing year and a half, plaintiffs filed suit against Verizon and its subcontractors on November 7, 2006. Cosolo sought restorative damages in the amount of $64,453.77; Navalta sought $42,968.85. Plaintiffs additionally sought $50,000 in diminution of the value of their respective homes, $45,000 in emotional distress damages per plaintiff, and attorneys' fees and costs.
During subsequent litigation of the matter, plaintiffs conducted 11 depositions and propounded 62 sets of written discovery. Defendant propounded an additional 40 sets of written discovery. Thus, a total of 102 written sets of discovery were propounded. As a result of the discovery, plaintiffs amended their complaint to allege a cause of action against City on July 17, 2008.
In an attempt to settle the matter, the parties sought an early adjudication, essentially an advisory opinion, on the issue of whether plaintiffs would be entitled to attorneys' fees and costs should Verizon settle the matter with plaintiffs in any amount. The court declined the invitation to issue an advisory ruling: "The parties are going to have to figure that out when they get to the settlement issue themselves. But I don't think the Court should be in the middle of this settlement that way based on the fact that this may be coming back to the court for trial."
On January 22, 2009, the parties entered into a settlement agreement reserving the court's jurisdiction to rule on the issue of attorneys' fees and costs. After extensive briefing on the issue, the court awarded attorneys' fees to plaintiffs in the amount of $185,674.22. The court requested that plaintiffs file a separate memorandum of costs. After plaintiffs filed an itemized memorandum of costs, the court denied Verizon's motion to tax plaintiffs' costs in the amount of $12,829.
Verizon filed its reply brief in this appeal on September 17, 2010. On the same date it filed a motion seeking to augment the record with transcripts of the depositions of plaintiffs conducted on July 17, 2008, and plaintiffs' mediation brief filed February 18, 2008, totaling hundreds of additional pages (the attached materials are not Bates stamped as required by California Rules of Court, rule 8.155(a)(2)).
"Rule 8.155(a)(1)(A) allows this court to order the record augmented with `[a]ny document filed or lodged in the case in superior court.' Rule 8.340(c) provides, `At any time, on motion of a party or on its own motion, the reviewing court may order the record augmented or corrected as provided in rule 8.155.'" (In re A.B. (2008) 164 Cal.App.4th 832, 839.)
Appellate review of deposition transcripts "`is limited to those portions of the depositions which were abstracted and placed before the court in'" moving papers filed below. (Sacks v. FSR Brokerage, Inc. (1992) 7 Cal.App.4th 950, 962, quoting Howe v. Pioneer Mfg. Co. (1968) 262 Cal.App.2d 330, 336, italics omitted; see also Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444, fn. 3.) "[A]ugmentation may be used only to add evidence that was mistakenly omitted when the appellate record was prepared; the record cannot be `augmented' with material that was not before the trial court. [Citations.]" (In re Marriage of Forrest & Eaddy (2006) 144 Cal.App.4th 1202, 1209.)
Verizon has failed to establish that the deposition transcripts were filed, lodged, or considered by the court below. Rather, since the particular deposition references relied on by the parties below were attached to their points and authorities, it appears that only those particular references were before the trial court in making its decisions. Indeed, Verizon admits in its motion that only "portions of these documents have been filed and/or lodged in the case in superior court." This court can only rely on evidence that was before the trial court; thus, only those references to the deposition transcripts considered by the court below can be relied upon by this court in deciding whether the trial court's decision was correct. Therefore, Verizon's motion to augment the record with the attached deposition transcripts must be and is denied.
"No writing, as defined in Section 250, that is prepared for the purpose of, in the course of, or pursuant to, a mediation or a mediation consultation, is admissible or subject to discovery, and disclosure of the writing shall not be compelled, in any arbitration, administrative adjudication, civil action, or other noncriminal proceeding in which, pursuant to law, testimony can be compelled to be given." (Evid. Code, § 1119, subd. (b); Wimsatt v. Superior Court (2007) 152 Cal.App.4th 137, 158-159.)
Verizon fails to assert that plaintiff's mediation brief was considered by the ruling court below. Moreover, the brief is not stamped "filed," suggesting, as asserted by plaintiffs, that it was, in fact, not filed with the court below. Finally, a purview of the brief itself reflects that it is the very type of writing prepared for mediation that is forbidden from disclosure. Indeed, the judge whose rulings Verizon challenges declined to issue an advisory opinion on the attorneys' fees issue precisely because he did not wish to improperly intersperse himself into the parties confidential settlement negotiations: "But I don't think the Court should be in the middle of this settlement that way based on the fact that this may be coming back to the court for trial." Thus, we agree with plaintiffs that Verizon's motion to augment the record with the mediation brief must be and is denied. Furthermore, we agree that Verizon's disclosure of the document "is an egregious violation of mediation confidentiality."
Plaintiffs requested sanctions against Verizon in the amount of $1,925 in attorneys' fees for the time expended in responding to what they characterized as a "frivolous and egregious" motion. We issued, separately and contemporaneously with the tentative opinion, an order to show cause why sanctions in the amount requested by plaintiffs should not be granted.
At oral argument, Verizon continued to assert that the documents attached to its motion to augment were properly subject to augmentation because they are part of the superior court file. For the reasons discussed above, we find Verizon's response disingenuous and legally unfounded. Thus, the motion is frivolous and a sanction award appropriate. (Rule 8.276(a)(3).) Therefore, plaintiffs' request for sanctions is granted and Verizon is ordered to pay plaintiffs' attorneys' fees in the amount of $900, for plaintiffs' defense of the frivolous motion to augment.
We begin by attempting to discern the precise issues Verizon is raising on appeal through the haze of the deficiencies in its opening brief.
A brief must "[s]tate each point under a separate heading or subheading summarizing the point, and support each point by argument and, if possible, by citation of authority . . . ." (Rule 8.204(a)(1)(B).) "The purpose of requiring . . . coherent arguments in appellate briefs is `to lighten the labors of the appellate [courts] by requiring the litigants to present their cause systematically and so arranged that those upon whom the duty devolves of ascertaining the rule of law to apply may be advised, as they read, of the exact question under consideration, instead of being compelled to extricate it from the mass.' [Citation.]" (Opdyk v. California Horse Racing Bd. (1995) 34 Cal.App.4th 1826, 1830, fn. 4.) An appellant forfeits an issue when he makes only a blanket, conclusory statement, with no citation to authority or discussion of the authority as it applies to the facts of the case. (Nelson v. Avondale Homeowners Assn. (2009) 172 Cal.App.4th 857, 862.)
Verizon cites all of two cases in its opening brief. The first case is cited in its "statement of the case." The second case is cited in its "standard of review." Verizon cites Albert v. Southern Pacific Transportation Co. (1994) 30 Cal.App.4th 529 (Albert) (with no point page citation) for the proposition that we conduct de novo review in the instant case. However, Albert dealt with the issue of whether summary judgment was properly granted in favor of the defendant where the plaintiff sued for negligence. Albert appropriately noted that review of a grant of summary judgment as a matter of law is de novo. (Id. at p. 533.) The instant case involves a challenge to an award of attorneys' fees and costs; thus, Albert is not even remotely relevant authority to the issues raised by Verizon. Verizon cites no other cases in its opening brief under any of its six enumerated issues on appeal.
Verizon does cite to Code of Civil Procedure section 657, subdivision (5)
Verizon does cite to the Chino Municipal Code in support of all of its contentions. Yet Verizon still fails to elucidate how the facts of this case apply to the authority it cites. Therefore, we would be well within our authority in deeming all of the issues raised by Verizon as forfeited. (Nelson v. Avondale Homeowners Assn., supra, 172 Cal.App.4th at p. 862.)
A brief must "[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." (Rule 8.204(a)(1)(C); Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 989-990.) Where a party "provides a statement of facts in his . . . brief but makes no attempt to support it with citations to the record[,] . . . [w]e disregard his statement of facts." (Gotschall v. Daley (2002) 96 Cal.App.4th 479, 481, fn. 1; see also McOwen v. Grossman (2007) 153 Cal.App.4th 937, 947.) An appellate court may disregard sections of a brief, including argument, containing factual statements not supported by record citations (Doppes, at p. 990 & fn. 4), and may deem the particular argument to have been forfeited (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247), or may strike the brief (Spangle v. Farmers Ins. Exchange (2008) 166 Cal.App.4th 560, 564, fn. 3).
"[T]he reviewing court starts with the presumption that the record contains evidence sufficient to support the judgment; it is the appellant's affirmative burden to demonstrate otherwise. [Citations.] The appellant's brief must set forth all of the material evidence bearing on the issue, not merely the evidence favorable to the appellant, and must show how the evidence does not sustain the challenged finding. [Citations.]" (Cequel III Communications I, LLC, v. Local Agency Formation Com. of Nevada County (2007) 149 Cal.App.4th 310, 329, fn. 7.)
Verizon's 12-page opening brief, which consists of a six-page "statement of the case" (including its "summary of facts"), contains not one citation to the record on appeal. Thus, we shall disregard Verizon's statement of the case in its entirety and rely instead on that provided by plaintiffs and on our own review of the record. While Verizon does provide record citations in its argument, it does so only by block page references at the conclusion of each of its arguments. "`As [a] practical matter, the appellate court is unable to adequately evaluate which facts the parties believe support their position when nothing more than a block page reference is offered in the briefs . . . .'" (Spangle v. Farmers Ins. Exchange, supra, 166 Cal.App.4th at p. 564, fn. 3.) We shall exercise our discretion to consider the issues raised by Verizon despite the inadequacies of its opening brief.
Verizon corrects many of the mistakes it made in its opening brief in its reply brief. Indeed, the reply brief is nearly three times as long as the opening brief—30 substantive pages as opposed to the latter, which was 12-pages long. It contains numerous case citations (though many still without point page citations) and more record citations (though again still failing to provide citations to the record for each statement of fact). It presents arguments not made in the opening brief, and more lucid expositions of those arguments made previously. Nevertheless, as discussed below, Verizon's corrections in the reply brief, of the flaws in its opening brief, cannot rectify the deficiencies of its opening brief.
A point raised for the first time in a reply brief deprives the respondent of an opportunity to answer it; therefore, it "is deemed waived and will not be considered, unless good reason is shown for failure to present it before. [Citations.]" (People v. Baniqued (2000) 85 Cal.App.4th 13, 29.) Arguments made for the first time in the reply brief will not normally be considered by the reviewing court. (Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764.)
Verizon makes no showing whatsoever, let alone one amounting to good cause, for its failure to raise those issues first exposited in its reply brief in its opening brief. Thus, to the extent Verizon's reply brief raises new issues or clarifies any of the ambiguities and/or rectifies the deficiencies of its arguments in the opening brief, Verizon has forfeited reliance upon such remediation by failing to have clearly raised such issues in its opening brief. Therefore, we shall proceed to address the merits of the claims we have been able to divine from our reading of appellant's opening brief and, to the extent appropriate, only those elaborations or clarifications in the reply brief of arguments already clearly raised in the opening brief.
Verizon contends that the court below was without any legal authority to award attorneys' fees and costs, because plaintiffs' property had been returned to as good a condition as it was before the incidents, and because the homeowners obtained the costs of remediation through their homeowners' insurer, with whom Verizon settled a subsequent subrogation suit. Thus, Verizon argues plaintiffs' maintenance of the suit against it was frivolous and undeserving of an award of attorney fees and costs. We disagree.
"The issue of a party's entitlement to attorney's fees is a legal issue which we review de novo. [Citations.]" (Garcia v. Santana (2009) 174 Cal.App.4th 464, 468-469.) "`[I]n an appeal from a postjudgment order awarding attorney's fees, we may review the entitlement to, as well as the amount of, the fees awarded.' [Citation.]" (City of Santa Paula v. Narula (2003) 114 Cal.App.4th 485, 492.) "A city ordinance may authorize an award of attorney fees." (Id. at p. 493.)
Here, Verizon obtained an encroachment permit from the City authorizing it to perform the work of installing the underground fiber optic cables. A condition of the issuance of the permit required that Verizon would pay the costs of all damages caused by its actions under the permit. The permit incorporated by reference the provisions of chapter 12.02 of the City municipal code. That chapter requires that permit holders restore all damaged properties to like or better condition. "[E]ach applicant who fails to restore such . . . property . . . shall be liable for all costs to restore same and for reasonable attorneys' fees and expert witness fees in the event litigation and other legal action is required to collect such costs." The municipal code additionally required that any remediation of damages be completed to the satisfaction of the City's director of public works. As holder of the permit, Verizon, not any of its subcontractors, was ultimately liable for any non-compliance with the conditions of the permit.
Plaintiffs alleged that they sustained substantial damages to their homes on March 28, 2005, and May 17, 2005. Plaintiffs and the City attempted to resolve the matter with Verizon, i.e., they attempted to obtain the costs from Verizon for restoring plaintiffs' incurred damages. After failing in those attempts over the course of nearly a year and a half, plaintiffs' initiated suit against Verizon on November 7, 2006. Subsequent discovery conducted in an effort to collect the costs of restoration of the damages involved 11 depositions, 102 sets of written discovery, and the retention of an expert witness. As late as November 18, 2008, the City's director of public works declared that Verizon had yet "to show proof to my satisfaction that the damages to the Cosolo and Navalta Homes, or their rights and interests therein, have been fully paid." Thus, as a matter of law, plaintiffs' were entitled to an award of attorneys' fees and costs, upon a proper showing of proof, for their efforts to compel Verizon through litigation to pay the costs of the restoration of their homes and other damages.
Verizon contends that plaintiffs obtained payment from their insurer and subsequently restored their homes to like or better condition. Thus, Verizon maintains that plaintiffs need not have incurred attorneys' fees and costs because their homes would have been restored regardless.
"It is well settled that, pursuant to principles of equitable subrogation, an insured retains a right to sue for uncompensated loss. `Subrogation is the right of an insurer to take the place of its insured to pursue recovery from legally responsible third parties for losses paid to the insured by the insurer. [Citation.]' [Citation.] `Both the subrogee (insurer) and the subrogor (insured) have a right of action against the tortfeasor.' [Citation.]" (Pacific Gas & Electric Co. v. Superior Court (2006) 144 Cal.App.4th 19, 23, fn. omitted.) "Where a person suffers personal injury or property damage by reason of the wrongful act of another, an action against the wrongdoer for the damages suffered is not precluded nor is the amount of the damages reduced by the receipt by him of payment for his loss from a source wholly independent of the wrongdoer. [Citations.]" (Anheuser-Busch, Inc. v. Starley (1946) 28 Cal.2d 347, 349; accord People v. Bickett (1999) 21 Cal.4th 226, 247, fn. 19.) "The most typical case is where the person suffering the damage has procured insurance protecting him against the loss, to which the wrongdoer did not contribute in procuring, and his insurer pays him for the loss suffered. In the insurance cases its application is not prevented by the circumstance that the insurer is subrogated to the rights of the insured person suffering the damage as against the tort feasor. [Citations.]" (Anheuser-Busch, at p. 349.)
Here, the fact that plaintiffs' insurer paid some or even all of the damages plaintiffs incurred does not negate plaintiffs' right to pursue an action for damages against Verizon, the entity ultimately responsible for the damages.
As the trial court properly concluded, the City's municipal code provision for attorneys' fees applies when an individual has "not [been] fully restored prior to any litigation forcing the defendants to fully restore the plaintiff." Thus, regardless of Verizon's settlement of the subrogation claim, plaintiffs had already incurred extensive fees and costs in their effort to recover the damages to which they were legally entitled. Hence, an award of attorneys' fees and costs was legally proper.
Furthermore, as plaintiffs noted below, "the subrogation payment does not settle other damages uncompenstated by insurance, including other property damages, emotional distress and attorney's fees." Thus, to the extent plaintiffs alleged damages for which the insurer did not and would not pay, an award of attorneys' fees and costs incurred in pursuit of those damages would remain legally cognizable. Here, plaintiffs alleged damages for diminution of their home values and emotional distress, damages for which an insurer would be unlikely to compensate a homeowner. (Smith v. County of Los Angeles (1989) 214 Cal.App.3d 266, 288-289 [emotional distress damages may be awarded in a nuisance action].) Verizon ultimately settled the matter with plaintiffs; thus, plaintiffs were also legally entitled to an award of attorneys' fees and costs, upon proper showing, for costs incurred in pursuit of damages not compensated by their insurer.
Verizon contends the court abused its discretion in declaring plaintiffs the prevailing party and, hence, awarding attorneys' fees and costs. Verizon further maintains that, to the extent any fees and costs were proper, the court abused its discretion in awarding the amounts it did. We hold the court acted within its discretion in rendering the award of attorneys' fees and costs.
The trial court's determination that a litigant is a prevailing party, along with its award of attorneys' fees, is reviewed for abuse of discretion. (Villa De Las Palmas Homeowners Assn. v. Terifaj (2004) 33 Cal.4th 73, 94.) "`The "experienced trial judge is the best judge of the value of professional services rendered in his [or her] court. . . ." [Citations.]' [Citation.] `Absent a manifest abuse of discretion, the determination of the trial court will not be disturbed.' [Citation.]" (City of Santa Paula v. Narula, supra, 114 Cal.App.4th at p. 493.)
"`Prevailing party' includes the party with a net monetary recovery. . . ." (§ 1032, subd. (a)(4); Reveles v. Toyota by the Bay (1997) 57 Cal.App.4th 1139, 1149-1151 [party obtaining net recovery in settlement agreement may be deemed "prevailing party" for purposes of attorneys' fees and costs award where determination of fees and costs is reserved for postsettlement motion], disapproved on other grounds in Snukal v. Flightways Manufacturing, Inc. (2000) 23 Cal.4th 754, 775, fn. 6, and Gavaldon v. DaimlerChrysler Corp. (2004) 32 Cal.4th 1246, 1261.)
Here, the court concluded, "[t]he fact that there was a settlement does not change that. I think they're entitled to their attorneys' fees . . . ." It concluded that plaintiffs were "a prevailing party in this matter." In that Verizon settled the matter with plaintiffs for $22,500 collectively "with respect to the Plaintiffs' claims for property damage and emotional distress," plaintiffs were parties receiving "a net monetary recovery. . . ." (Reveles v. Toyota by the Bay, supra, 57 Cal.App.4th at p. 1149.) Indeed, the settlement expressly reserved the issue of attorneys' fees. Thus, the court's determination that plaintiffs were the prevailing party was well within its discretion.
With respect to the attorneys' fees award in the amount of $185,674.22, Verizon contends the court abused its discretion in awarding fees in an excessive amount, in failing to divide the award between the various other defendants, and in awarding attorneys' fees to plaintiffs for amounts expended in their litigation against the City in an ostensibly unrelated action. We disagree.
First, we note that plaintiffs requested an award of attorneys' fees in the amount of "$277,677.92 based on billing rates of $550 for the partner, $95 for the paralegal, $275 to $250 for the associate." Contrary to Verizon's contention in its reply brief, the court did not award the attorneys' fees at the rate plaintiffs' requested.
Second, with respect to the court's purported failure to divide the attorneys' fees award between Verizon and the subcontractor codefendants, we note that Verizon fails to establish it requested that the court do so below. Thus, Verizon has forfeited the issue on appeal. (Premier Medical Management Systems, Inc. v. California Ins. Guarantee Assn. (2008) 163 Cal.App.4th 550, 564 [failure to raise specific challenges to fee award in the trial court forfeits claim on appeal].) Nevertheless, as discussed in footnote No. 6 ante, Verizon had its own methods of recourse against the subcontractor codefendants to the extent they were responsible for the incurrence of any of the attorneys' fees. Finally, as the court properly noted, those defendants were not before it; thus, it had no jurisdiction to issue such an order.
Third, with regard to Verizon's contention that fees of up to $137,000 dealing with plaintiffs' litigation with the City should be deducted from the award, it was well established below that plaintiffs' litigation against the City was directly related to its case against Verizon. City's responses to discovery were deemed crucial by plaintiffs in establishing Verizon's liability. Plaintiffs' original complaint, filed November 7, 2006, did not name City as a defendant. Plaintiffs did not successfully amend their complaint to name City as a defendant until their third amended complaint, filed on July 17, 2008. City noted that it was not brought in as a defendant until after plaintiffs had already engaged in discovery. Plaintiffs dismissed City as a defendant on December 26, 2008, so City was a defendant in the matter for less than six months. Plaintiffs alleged they "only amended their Complaint to implead the City because of Verizon's defense in this litigation. Verizon . . . claimed that the City ha[d] responsibility for the sewage backup because the sewer main was clogged." Thus, with regard to plaintiffs' claim for attorneys' fees with respect to their efforts directed at City, plaintiffs more than adequately established that such efforts were the direct result of Verizon's behavior both before and after litigation in the current matter began. Therefore, the court acted well within its discretion in refusing Verizon's request that the attorney fee award be reduced by amounts attributable to plaintiffs' litigation against City.
Verizon contends the court abused its discretion in denying its motion to tax plaintiffs' costs in the amount of $12,829. Verizon's principal contention is that the court erred in awarding the amount of $6,500 in expert witness fees. Verizon again complains that the court erred in failing to divide the costs between the various defendants. We disagree.
"`[S]ection 1033.5, enacted in 1986, codified existing case law and set forth the items of costs which may or may not be recoverable in a civil action. [Citation.]' [Citation.] An item not specifically allowable under subdivision (a) nor prohibited under subdivision (b) may nevertheless be recoverable in the discretion of the court if `reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.' (§ 1033.5, subd. (c)(2).)" (Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 773-774) "Whether a cost item was reasonably necessary to the litigation presents a question of fact for the trial court and its decision is reviewed for abuse of discretion. [Citation.] However, because the right to costs is governed strictly by statute [citation] a court has no discretion to award costs not statutorily authorized. [Citations.]" (Id. at p. 774.) Section 1033.5, subdivision (a)(8) specifically permits the "[f]ees of expert witnesses ordered by the court."
"`[I]f the items appear to be proper charges, the verified memorandum is prima facie evidence that the costs, expenses and services therein listed were necessarily incurred by the [party] [citations], and the burden of showing that an item is not properly chargeable or is unreasonable is upon the [objecting party].' [Citations.]" (Nelson v. Anderson (1999) 72 Cal.App.4th 111, 131.) "The court's first determination, therefore, is whether the statute expressly allows the particular item, and whether it appears proper on its face. [Citation.] If so, the burden is on the objecting party to show them to be unnecessary or unreasonable. [Citation.]" (Ibid.)
Plaintiffs initially included an itemization of its costs in the amount of $12,786 in its motion for attorneys' fees filed on May 4, 2009. At the subsequent hearing, after granting attorneys' fees to plaintiffs, the court requested that plaintiffs file a separate memorandum of costs noting, "I want specifics. There are certainly some areas where those costs may be taxed, but . . . the deposition costs were extremely high, and there was another portion that was extremely high." On June 5, 2009, plaintiffs' filed a separate memorandum of costs requesting $12,829.
At the hearing on Verizon's motion to tax costs, the court concluded that "Chino Municipal Code 12.02.030 gives [plaintiffs] the right to seek expert fees." Plaintiffs' counsel noted that he relied upon his expert witness's report in deposing all the potential witnesses. City Municipal Code Chapter 12.02 specifically authorizes expert witness fees in the event of litigation. The court agreed that the hiring of such a witness was proper: "I think they were entitled to hire an expert. I think an expert is vitally important in this type of case, not knowing what was happening. They are, pursuant to [Code of Civil Procedure] section 1032[,] [subdivision] (a)(4), a prevailing party in this matter. . . . I think hiring an expert was reasonable . . . ." The court noted, "[t]hose costs were minimal here." We find no abuse of discretion in the court's denial of Verizon's motion to tax the costs of the expert witness. The municipal code's explicit provision for such fees, the reasonable amount of the claimed fee, and plaintiffs' establishment of the expert witness's reasonable necessity in the litigation support the court's order.
Yet again, we note that the court committed no error in declining to divide the costs between Verizon and the other defendants who were no longer parties to the action: "I don't have the other defendants in front of me. You know the age-old saying that whoever settles first usually gets the better deal when there's multiple defendants in the case. They settled out first. They reached their deal. I don't have them before me now. I can't order them to pay a part of the costs." Any division of the costs is an issue to be resolved between Verizon and its subcontractors.
The judgment is affirmed. Verizon is ordered to pay plaintiffs' attorney fees as a sanction for plaintiffs' defense of the frivolous motion to augment, in the amount of $900, payable in its entirety on or before 20 days after the remittitur is issued. Plaintiffs are awarded their costs on appeal.
We concur:
KING, Acting P. J.
CODRINGTON, J.
