Not Reported in Cal.Rptr.2d

Not Reported in Cal.Rptr.2d, 2002 WL 31521777 (Cal.App. 2 Dist.)

Not Officially Published

(Cal. Rules of Court, Rules 976, 977)

(Cite as: 2002 WL 31521777 (Cal.App. 2 Dist.))


Briefs and Other Related Documents


Only the Westlaw citation is currently available.


California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.


Court of Appeal, Second District, Division 4, California.

Steven KALSKI, Plaintiff and Appellant,

v.

CALIFORNIA ASSOCIATION OF PROFESSIONAL EMPLOYEES et al., Defendants and

Respondents.

No. B153830.

(Super.Ct.No. BC113774).


Nov. 14, 2002.


County employee, who brought action against county and union based on breach of memorandum of understanding (MOU), filed motion to tax county's costs and to prevent and enjoin execution of cost awards. The Superior Court, Los Angeles County, No. BC113774, David P. Yaffe, J., denied motions, and employee appealed. The Court of Appeal, Curry, J., held that: (1) county that prevailed on appeal could recover $544.04 for cost of photocopying and binding its respondent's brief, and (2) union that prevailed on appeal could recover costs for printing of respondent's brief.


Affirmed.


West Headnotes


[1] Counties 228

104k228 Most Cited Cases

County that prevailed on appeal could recover $544.04 for cost of photocopying and binding its respondent's brief, for purpose of action brought by county employee based on breach of memorandum of understanding (MOU), where amount awarded to county was in line with amount awarded to employee on his prior successful appeal, county used reputable service to prepare brief, and charge was not out of line with costs incurred for such type of work. Cal.Rules of Court, Rule 26(c).

[2] Counties 228

104k228 Most Cited Cases

County employee's union that prevailed on appeal could recover costs for printing of respondent's brief, for purpose of action brought by employee against county and union based on alleged breach of memorandum of understanding (MOU); fact that employee paid union dues did not preclude union's recovery of costs.


[3] Costs 246.5

102k246.5 Most Cited Cases

Fact that plaintiff's application to proceed in forma pauperis was granted and that, pursuant to rule, payment of listed fees and costs was waived did not mean that plaintiff did not have to pay defendants' prevailing party costs on appeal; rule permits waiver by court of fees and costs due to court and prevailing party costs are due not to court but to prevailing party as matter of right. West's Ann.Cal.Gov. Code 68511.3; Cal.Rules of Court, Rules 26(c), 985(i).


[4] Costs 260(5)

102k260(5) Most Cited Cases

Respondents were not entitled to sanctions for filing of frivolous appeal; although many arguments in appellant's brief were frivolous and unsupported, contention that he should not be required to pay costs due to his status as litigant proceeding in forma pauperis was novel and did not appear to be advanced solely for delay.

APPEAL from orders of the Superior Court of Los Angeles County, David P. Yaffe, Judge. Affirmed.


Steven Kalski, in pro. per., for Plaintiff and Appellant.


Fogel, Feldman, Ostrov, Ringler & Klevens, Lester G. Ostrov and Ellen J. Shin for Defendant and Respondent California Association of Professional Employees.


Hausman & Sosa, Jeffrey M. Hausman and Larry D. Stratton for Defendants and Respondents County of Los Angeles, Employee Relations Commission, County of Los Angeles Office of the Assessor, County of Los Angeles Civil Service Commission, and County of Los Angeles Board of Supervisors Executive Office.


CURRY, J.


*1 In October 1994, appellant Steven Kalski brought suit against respondents the County of Los Angeles (the County) and the California Association of Professional Employees (CAPE). The pleading, styled both a complaint and petition for writ of mandate, contained numerous causes of action. Kalski, who at the time was employed by the County assessor's office as a personal property appraiser, [FN1] contended that the County breached the memorandum of understanding (MOU) between the County Board of Supervisors and the appraisers' nonsupervisory employee representation unit through various actions. There were also claims for fraud, harassment, and violation of the Revenue and Taxation Code and the United States and California Constitutions.


FN1. Kalski was apparently terminated from his employment on April 23, 2001.


Kalski's principal concern derived from a list promulgated by the County, classifying appraisers according to whether they appraised real property or personal property. Kalski believed that the list would result in layoffs of personal property appraisers sooner than less senior real property appraisers. Indeed, as of the time of his initiation of legal action, four personal property appraisers were slated for lay off in advance of real property appraisers with less seniority, the County having sought and obtained an exemption from the Los Angeles County Department of Human Resources limiting the layoff of real property appraisers.


Kalski's claims against CAPE involved vague allegations of conspiracy and inducement to breach the MOU. Kalski sought an order enjoining various members of CAPE from serving in any position with the organization and ordering new elections to replace them.


Initially, after the action had languished for some time, the court dismissed for failure to prosecute. Appeal was taken, and this court reversed on the ground that the case had not been pending for two years when the order of dismissal was entered. On remand, the trial court reached the substantive issues, denying the writ and dismissing the remaining causes of action. By opinion and order dated January 10, 2001, we affirmed that decision on appeal. The trial court had earlier awarded costs to Kalski for his original, successful appeal. He had appealed from that order on the ground that the costs awarded were insufficient. We affirmed that order as well.


After the remittitur issued, the only issue before the trial court was the amount of costs on appeal to award respondents. The County sought $544.04 for the cost of photocopying and binding its respondent's brief. Kalski filed a motion to tax costs contending that since the trial court had allowed only 15 cents per page for his earlier brief, the County's recovery should be limited to the identical amount, which Kalski calculated would come out to $63.00 based on a 30 page brief. In their opposition, the County established that it had been charged $544.04 by a service to put together its respondent's brief.


CAPE filed a memorandum of costs requesting $346.75 for preparation of the record on appeal and $222.80 for its brief. Kalski filed another motion to tax costs, similarly contending that the amount per page of the brief was too high. He also claimed that CAPE should not receive costs from him, having violated its obligation as his union to provide legal counsel with respect to an employee relations matter.


*2 The court denied the motion to tax costs with respect to the County, stating "There is no authority to support [Kalski's] contention that [the County] is limited to recovery of the same amount that [Kalski] claimed for preparing appellate briefs in another proceeding."


The court granted the motion to tax costs in part with respect to CAPE, reducing the costs claimed for printing its brief from 20 cents per page to 15 cents per page, noting that the briefs had been printed by CAPE's counsel in house so there was no actual bill and that the County had been charged approximately 15 cents per page by its outside service. The court awarded at total of $511 to CAPE.


Kalski then filed a motion to prevent and enjoin execution on the cost awards. Kalski argued that because he had been a long time, dues paying member of CAPE, the organization should not have sought costs from him, particularly since it had failed to provide him with legal services in his claims against the County. He further pointed out that he had been granted in forma pauperis status as of August 2, 2001. He believed his status precluded recovery of costs from him, including those incurred by opposing parties. The court denied the motion by order dated September 14, 2001.


Kalski noticed an appeal from the order denying the motion to tax the County's costs and the order denying his motion to enjoin execution on the cost awards.


DISCUSSION

I

[1] Appellant contends that the County is limited to recover 15 cents per page for its respondent's brief on appeal by principles of collateral estoppel, and that the invoice presented to support the charge of $544.04 was not sufficiently descriptive of the services provided. In support of the former argument, appellant selectively quotes from our prior opinion to create the misimpression that he received only 15 cents per page for his appellant's brief in his earlier, successful appeal. In fact, as we actually noted in our opinion, "[t]he trial court took into account the cost per page reported by appellant [$2.09 per page ], but awarded it for the original briefs only, and awarded 15 cents per page for copies to reach a total award for this item of expense of $481.88." (Italics added.) The amount awarded to the County is in line with the figure previously awarded to appellant. Moreover, even if the amount incurred by the County was slightly higher on a per page basis, the rule permits recovery of "reasonable" expenses of printing and/or reproducing briefs. (Cal. Rules of Court, rule 26(c).) [FN2] A cost may be reasonable even if it varies by a few dollars in individual cases. The County used a reputable service, and the charge is not out of line with the costs incurred for this type of work.


FN2. All further rule references are to the California Rules of Court.


Kalski's argument that the cost should not have been awarded because the description on the invoice lacked precision (it says it was incurred for "Professional Services in processing the following appellate document") is equally unmeritorious. The attorney for the County confirmed in his declaration the reason for the charge.


II

*3 [2] Kalski contends that CAPE should be precluded from recovering any costs because of the thousands of dollars he has paid in dues; public policy prevents CAPE from executing on an award of appeal costs after it failed to provide him with legal counsel; CAPE failed to assist him in preventing his termination; and the County's attorney caused CAPE's legal counsel to engage in a conflict of interest by acquiescing in his termination. Kalski's contentions in this regard are supported by no legal authority and make no sense. A union member who files unsuccessful legal action against his union and equally unsuccessful legal action against his employer contrary to the advice of his union has no right to avoid the normal costs of litigation imposed on a losing party.


III

[3] In Kalski's final argument, he contends that because on August 2, 2001, his application to proceed in forma pauperis was granted and "payment of all the fees and costs listed in California Rules of Court, Rule 985(i), [was] waived," he should not be required to pay respondents' costs on appeal.


Rule 985(b) provides that an application to proceed in forma pauperis shall be granted and payment of court fees and costs listed in subdivision (i) shall be waived if the applicant meets certain standards of eligibility contained in Government Code section 68511.3. The fees and costs listed in subdivision (i) include "Clerk's fees for preparing, certifying, and transmitting the clerk's transcript on appeal." [FN3]


FN3. Expenses listed in rule 985, subdivision (j) can also be waived if the court finds them "necessary," but none of the items listed appear pertinent to the current matter. Neither subdivision (i) nor subdivision (j) refer to the cost of printing or preparing briefs on appeal.


Citing this rule and a Ninth Circuit case holding that in awarding attorney fees under title VII of the Civil Rights Act of 1964, the court should consider the losing litigant's ability to pay, appellant contends that costs should not have been awarded to respondents at all, or at least not the cost of the clerk's transcript on appeal.


Although Kalski's contention is an interesting one, we must disagree. Rule 985 permits "waiver" by the court of fees and costs due to the court. The point of the rule is to ensure that court costs do not prevent an indigent person from enforcing his or her legal rights. (See Ferguson v. Keays (1971) 4 Cal.3d 649, 653-654, 94 Cal.Rptr. 398, 484 P.2d 70.) Costs under rule 26, such as "the cost of preparation of ... one copy of the record [on appeal] if the party is the respondent" (rule 26(c)(1)) or "the reasonable cost of printing or reproduction of briefs by other process of duplication" (rule 26(c)(2)), are assessed against a litigant only after it has been ascertained that his or her opponent is the prevailing party. The prevailing party is entitled to these costs as a matter of right. (Rule 26(c)(1); see Code Civ. Proc., 1032, subd. (b); Nelson v. Anderson (1999) 72 Cal.App.4th 111, 128-129, 84 Cal.Rptr.2d 753 [no statutory authority for reducing costs awarded to prevailing defendant where plaintiff allegedly had more limited resources].) That the court is permitted by Government Code section 68511.3 and the Judicial Council's rules to waive fees and expenses that are to go into its own coffers does not mean that it can waive a right to reimbursement belonging to a private party. Imposition of these costs after the fact does not place a barrier to an indigent person seeking a hearing on a potentially meritorious legal point. Once the litigation is concluded, a party who is truly destitute has options with regard to payment or avoidance of payment of amounts awarded to the other side.


IV

*4 [4] Respondents have requested sanctions in the amount of $3,168 (the County) and $3,810 (CAPE). Although many of the arguments in Kalski's brief were frivolous and unsupported, the contention that he should not be required to pay costs due to his status as a litigant proceeding in forma pauperis was a novel one and did not appear to be advanced solely for delay. Therefore, we deny the request. (See Doran v. Magan (1999) 76 Cal.App.4th 1287, 1296, 91 Cal.Rptr.2d 60["[A]ny definition of a frivolous appeal must be read to avoid a serious chilling effect on the assertion of litigants' rights on appeal. Counsel and their clients have a right to present issues that are arguably correct, even if it is extremely unlikely they will win on appeal. An appeal that is simply without merit is not by definition frivolous and should not incur sanctions. [Citations.] An appeal, though unsuccessful, should not be penalized as frivolous if it presents a unique issue which is not indisputably without merit, or involves facts which are not amenable to easy analysis in terms of existing law, or makes a reasoned argument for the extension, modification, or reversal of existing law."].)


DISPOSITION

The orders appealed from are affirmed. Costs are awarded to respondents.


We concur: VOGEL (C.S.), P.J., and HASTINGS, J.


Not Reported in Cal.Rptr.2d, 2002 WL 31521777 (Cal.App. 2 Dist.) Not Officially Published, (Cal. Rules of Court, Rules 976, 977)


Briefs and Other Related Documents (Back to top)


2002 WL 32148445 (Appellate Brief) Appellant's Reply Brief in Appeal from Los Angeles County, Superior Court Judge, Honorable David Yaffe's (Dept. No. 86) Post-Judgment Orders Denying the Motions to Tax Costs on Appeal and to Prevent and Enjoin Execution Upon Costs Awarded on Appeal i n Case No. BC 113774 (Sep. 20, 2002)Original Image of this Document (PDF)


2002 WL 32148437 (Appellate Brief) Respondents' Brief (Aug. 01, 2002)Original Image of this Document (PDF)


2002 WL 32148452 (Appellate Brief) Appellant's Opening Brief (May. 21, 2002)Original Image of this Document (PDF)


B153830 (Docket) (Oct. 05, 2001)


END OF DOCUMENT

2005 Thomson/West. No Claim to Orig. U.S. Govt. Works.