Davis v. Bosch Tool

Filed 3/28/07 Davis v. Bosch Tool CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from a judgment of the Superior Court of Los Angeles County.

Victor E. Chavez, Judge. Affirmed in part and reversed in part.

Connelly Sheehan Harris LLP, Rachel B. Cowen, Ellen DeVoe Stuart and Michael Sheehan, pro hac vice; Swerdlow Florence Sanchez Swerdlow & Wimmer, David A. Wimmer, and Janet Swerdlow for Defendants and Appellants.

Nikki Tolt; Jeffrey A. Brightwell; Benedon & Serlin, Gerald M. Serlin and Douglas G. Benedon for Plaintiff and Respondent.

_______________

Ralph Kenneth Davis sued the Robert Bosch Tool Corporation ("Bosch"), the Robert Bosch Corporation ("the Parent"), and Bosch executive Gary Tharp for misrepresentation and deceit, breach of an implied contract not to discharge except for good cause, age discrimination in violation of FEHA, wrongful termination based on age in violation of public policy, invasion of privacy, defamation, and Labor Code violations.

The case went to trial on causes of action for breach of implied contract not to fire without good cause, wrongful termination based on age, defamation, and for unpaid wages. Davis prevailed on the causes of action for breach of contract and for unpaid wages. Defendants prevailed on the causes of action for age discrimination and defamation.

Bosch and the Parent appealed, challenging the sufficiency of the evidence for the jury verdict and the inclusion of the Parent in the judgment. Davis cross-appealed, raising issues concerning damages and costs. We reverse the judgment as to the Parent, and in all other respects affirm.

Summary[1]

Bosch manufactures power tools. Davis was a Bosch salesman. He began work at Bosch in 1982, and did well, winning awards and receiving good performance evaluations. He was paid a salary and commissions.

The facts concerning his dismissal involve a Bosch program called SPIFF (Special Promotional Incentive Fund Field Staff), under which Bosch, through district sales managers like Davis, made small payments to store salesclerks who sold specified Bosch tools. Bosch's evidence was that early in 2002, it observed that Davis's SPIFF payments were exceptionally large and that his SPIFF accounting was otherwise problematic. It conducted an internal audit, put Davis on an unpaid suspension, then hired an investigator, Kroll and Associates, to further investigate. According to Bosch, Davis was fired because he had falsified and forged documents and violated the company's policies concerning the SPIFF program. Davis's evidence was that many of his SPIFF practices were in compliance with rules and/or had been approved by supervisors, and that in any event he used the SPIFF program to sell more tools, for the benefit of the company. Further, Bosch's investigation was defective. Davis's case was that he was terminated due to his age.

On special verdicts, the jury found that Bosch or the Parent had promised by words or conduct not to discharge Davis except for good cause, that Davis had performed his job duties, that Bosch or the Parent had discharged him without good cause, and that he had suffered economic losses of $195,000; and, on the wage claim, that Bosch or the Parent had willfully withheld wages of $68,025. The jury found against Davis on the age discrimination and defamation causes of action. The court found that the wage claim was encompassed within the breach of contract award, and awarded waiting time penalties for the willfully withheld wages and prejudgment interest on those wages. On Davis's motion for attorney fees (Lab. Code, 218.5) the court awarded $45,350. Both Davis and Tharp were awarded costs.

The appeal

1. The notice of appeal

Bosch's argument is that the trial court erred in denying its motion for judgment notwithstanding the verdict. Davis contends that we have no jurisdiction to hear the question, because the ruling is not encompassed in the notice of appeal.

We see no such obstacle. Bosch's notice of appeal states that it is an appeal "from the Judgment entered on June 7, 2005." It then states "Notice of Entry of Judgment was mailed by the Clerk in Department 96 on June 7, 2005. Defendant timely filed a Motion for New Trial, a Motion for Judgment not Withstanding the Verdict, and a Motion to VacateJudgment, all of which were denied on July 19."

Our Supreme Court has instructed us to read a notice of appeal liberally, and given such a reading, we think that this notice of appeal is adequate to challenge the denial of the motion notwithstanding the verdict. Walker v. Los AngelesCounty Metropolitan Transportation Authority (2005) 35 Cal.4th 15 considered a notice of appeal which stated only that the appeal was from an order denying a new trial, a non-appealable order. The Court held that "[b]ecause '[t]he law aspires to respect substance over formalism and nomenclature' [citation] a reviewing court should construe a notice of appeal from an order denying a new trial to be an appeal from the underlying judgment when it is reasonably clear the appellant intended to appeal from the judgment and the respondent would not be misled or prejudiced." (Id. at p. 22, see also Gu v. BMW of North America, LLC (2005) 132 Cal.App.4th 195, 203 [under Walker, appeal from order sustaining demurrer without leave to amend is interpreted as appeal from the judgment].)

Here, as Davis argues, unlike Walker, the issue concerns not a non-appealable order denying a new trial, but an order which can be appealed. (Code Civ. Proc., 904.1, subd. (a)(4).) However, Walkerdirects us to look to substance, not form. Bosch's notice of appeal specifically mentions the denial of the motion for judgment notwithstanding the verdict, and we think that it is reasonably clear that Bosch intended to appeal from the ruling. Nor can we find that Davis is prejudiced by our interpretation of the notice. The notice of appeal informed him that the ruling was at issue. Moreover, Bosch most certainly appealed the judgment, and the standard of review for appeal of a judgment notwithstanding the verdict is the same. (Sweatman v. Department of Veterans Affairs (2001) 25 Cal.4th 62, 68.)

2. Waiver

Bosch's first issues on appeal are challenges to the sufficiency of the evidence for the finding of wrongful termination. Bosch contends that Davis did not present evidence to rebut the presumption of at will employment or prove that his discharge was not for good cause. Bosch also contends that the evidence was insufficient for the jury finding that Bosch owed wages. As Davis contends, Bosch has not presented us with a full record of the evidence presented to the jury. We thus must affirm.

The missing evidence was proffered by Davis, who, as part of his case-in-chief, played portions of the videotaped depositions of Bosch Chief Financial Officer Katina Xouria, Bosch Director of Human Resources Sharon Glieberman, Bosch regional manager Bryan Jackman, former Bosch employee Noel Kidd, and Tony Alvizu of Kroll. The videotapes were not transcribed by the court reporter, and neither party offered the tapes or any transcript into evidence. Thus, despite the fact that Bosch designated the entire reporter's transcript, our record includes no evidence of the content of the tapes.

We may not reverse a judgment until we have examined"the entire cause, including the evidence." (Cal. Const., art. 6,  13) We must presume in favor of the judgment, and that error must be demonstrated. "[I]t is settled that: 'A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown. This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error.' (3 Witkin, Cal.Procedure (1954) Appeal, 79, pp. 2238-2239; Minardi v. Collopy, 49 Cal.2d 348, 353; Coleman v. Farwell, 206 Cal. 740, 742.)" (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.)

Bosch's argument on this point is that, since it designated the entire reporter's transcript, it was up to Davis to augment the record with the tapes. (Of course, since the tapes were neither transcribed nor entered into evidence, augmentation is not quite right. An agreed or settled statement would be required. (Cal. Rules of Court, rules 8.134 and 8.137).) In legal support, Bosch relies on McMahon v. Superior Court (1946) 29 Cal.2d 515 and Skoglie v. Crumley (1972) 26 Cal.App.3d 294.

McMahon arose from trial court proceedings to settle a transcript. The petitioner (the case involved a request for writ of mandate) had asked the trial court to settle and certify a transcript, but the motion was denied after a party below objected on grounds of lack of completeness. The Court explained that "It is apparent that the parties have been proceeding under the practice which obtained prior to the adoption of the new Rules on Appeal (22 Cal.2d 1), although these rules, which became effective July 1, 1943, are applicable to and govern this case. Under the new rules the trial judge is not charged with the function of 'settling' or certifying all transcripts; in the absence of a request for correction of an alleged mistake, the record is transmitted with the certification of the reporter (Rule 4(d), 22 Cal.2d 4) and of the clerk. (Rules 5(d), 8(a), 22 Cal.2d 5-6, 8.) The petition herein discloses that respondents in the main appeal filed a document entitled 'Objection to Settlement of Transcripts, Etc.,' in part on the ground that they did not constitute 'a full and complete transcript of the proceedings'; and that petitioner filed an 'Answer to Objections re Settlement of Transcripts,' in which he stated that he was forwarding to the court 'corrections' to be noted in the reporter's transcript. The objection on the ground of lack of completeness is no longer tenable, and the remedy of a respondent, if he desires a complete transcript, is to designate the balance thereof. (Rules 4(b), 5(b), 22 Cal.2d 3, 5.) If, however, corrections have been requested by either party, it is the duty of the trial judge to hear and determine the request, and thereafter to certify the transcripts, with such corrections, if any, as he may allow. (Rule 8(b), 22 Cal.2d 8-9.)" (McMahon v. Superior Court, supra, 29 Cal.2d at pp. 518-519 [emphasis added.)

Bosch cites the language italicized above, finding in it a holding that it is a respondent's duty to make up for omissions in the transcript. We see no such holding. McMahon does not concern an appellant's duty to provide an appellate court with the record necessary to determine the claims. The disposition tells the story: the Court issued a peremptory writ of mandate directing the trial court "to determine the request for correction of the transcripts, and thereafter to certify the transcripts as correct." (McMahon, supra, 29 Cal.2d at p. 519.)

In Skoglie, the appellant designated only those portions of the oral transcript he deemed relevant to the sole issue on appeal. Respondent augmented the record to some extent, but argued that because the Court of Appeal could not examine "the entire cause," it could not find error. Skoglie disagreed, noting that under the rules of court, "If an appellant, in his notice of appeal, states the point or points to be raised by him on the appeal, he may designate the portions of the oral proceedings to be transcribed or direct the omission of any portions which he deems unnecessary. If a respondent is not satisfied with the omissions of other portions, he may serve and file a designation of any additional oral proceedings he desires included in the record. (Cal. Rules of Court, rule 4(b).) When a reporter's transcript containing only a portion of the oral proceedings is thereafter certified by the judge or the clerk, it is presumed in the absence of proceedings for augmentation that it includes all matters material to a determination of the points on appeal." (Skoglie, supra, 26 Cal.App.3d at p. 297.)

In support of the later point, Skoglie cited California Rules of Court, rule 52, now California Rules of Court, rule 8.163, which provides that "The reviewing court will presume that the record in an appeal includes all matters material to deciding the issues raised. If the appeal proceeds without a reporter's transcript, this presumption applies only if the claimed error appears on the face of the record."

Skoglie concluded that ". . . although respondent contends we are required to review all of the evidence presented to the trial court before any determination can be made that prejudicial error occurred, he apparently has not considered the effect of rule 52. Respondent did not seek to enlarge the record on appeal by filing a counter-designation in the trial court and, apart from the limited augmentation obtained in this court, he has not sought further augmentation of the record, nor has he contended that the testimony of any other witness is relevant to the sole issue raised by appellant. We therefore consider that the record before us is adequate for purposes of review, and that a full consideration of such record meets the constitutional requirements of section 13 of article VI." (Skoglie, supra, 26 Cal.App.3d at p. 298.)

Bosch's reliance on Skoglie misses a critical difference between that case and this one: in Skoglie, the appellant designated everything relevant to the sole issue on appeal. Here, Bosch has challenged the sufficiency of the evidence for the jury verdict, which means that all the evidence is relevant to its appeal. Evidence sufficient to support the verdict might be found in the testimony of the missing witnesses. We cannot know, and in the absence of such knowledge, we must presume that it is so.

An appellant "must affirmatively demonstrate error by an adequate record. In the absence of a contrary showing in the record, all presumptions in favor of the trial court's action will be made by the appellate court. '[I]f any matters could have been presented to the court below which would have authorized the order complained of, it will be presumed that such matters were presented.' [Citation.]" (Bennett v. McCall (1993) 19 Cal.App.4th 122, 127.)

Bosch could have guaranteed the inclusion of all evidence in the appellate record by requesting transcription in the trial court, or moving to have the tapes marked as exhibits and entered into evidence, or it could have proceeded by settled statement on this appeal. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295.) It did none of those things, and cannot proceed on its sufficiency of the evidence claims.

3. The judgment against the Robert Bosch Company

As we have seen, there were two defendants at trial, Bosch and the Parent. The jury verdicts asked whether Bosch or the Parent, had, for instance, "promise[d]. . . not to discharge Kenneth Davis except for good cause?" During preparation of the verdicts, the parties and the court agreed that the liability of the Parent would be a question for the court, to be decided after the verdict was returned.

Post-verdict, counsel for Davis prepared a judgment which included the Parent as a judgment debtor. Bosch and the Parent filed an objection. The court heard argument, and on June 7 signed a judgment which did not include the Parent. Davis then filed a motion under Code of Civil Procedure section 473 to correct the judgment by adding the Parent, titling the motion one to correct a clerical error, nunc pro tunc, and asserting that the Parent "was shown to be the employer of Plaintiff by uncontroverted evidence." Bosch and the Parent objected.

At oral argument on July 19, 2005, the court indicated that it would grant Davis's motion, but explained that it was not making a ruling on alter ego, but was merely correcting the judgment to reflect the jury verdict. The minute order notes that the ruling was pursuant to Code of Civil Procedure section 473, and specifies the amendments. As amended, the judgment reads "It appearing by reason of said verdict that plaintiff Kenneth Davis is entitled to judgment against defendant Robert Bosch Tool Corporation or defendant Robert Bosch Corporation," and ordering "Plaintiff Kenneth Davis recovers from Defendant Robert Bosch Tool Corporation or defendant Robert Bosch Corporation the sum of $195,000.00 . . . ."

In August, during argument on defendants' motion for costs, Davis argued that since the Parent had been added to the judgment, Davis was the prevailing party. The court noted that the issue of the Parent's liability was still open, and requested additional briefing on the question. Something similar happened at a September hearing. At that hearing, the court deferred the issue until October.

On October 25 the trial court issued a written ruling which, under the heading "Alter Ego Theory of Liability and/or Parental Liability of Defendant Robert Bosch Corporation," reads:

"On July 19, 2005, the Court added 'or Defendant Robert Bosch Corporation' to the June 7, 2005 judgment in order to more adequately reflect the language of the Special Verdict. By adding this language, the Court did not make a finding that Defendant Robert Bosch Corporation was a judgment debtor or that Defendant Robert Bosch Corporation was liable under an alter ego or parental liability theory. Since the conclusion of the trial, the Court expected and requested further evidence and argument regarding those theories of liability. Although Defendant Robert Bosch Tool Corporation and Defendant Robert Bosch Corporation have set forth substantive arguments regarding these issues, Plaintiff's documents never adequately addressed the issue of parental liability. Accordingly, the Court asked for additional briefing, and, as a result held over a determination on the alter ego and/or parental liability issue on at least three occasions. Plaintiff failed to provide such additional support or argument. [] The June 7, 2005 judgment against Defendant Robert Bosch Tool Corporation and/or Defendant Robert Bosch Corporation is on appeal. Due to this pending appeal, the Court has now lost jurisdiction to make a determination on the alter ego and parental liability questions. CCP 916. If jurisdiction had not been lost, based upon the Court's review of the evidence presented at trial, the Court would have concluded that Plaintiff had not satisfied the 'integrated enterprise test' set forth in Laird v. Capital Cities (1998) 68 Cal.App.4th 727, 737, and, therefore, Defendant Robert Bosch Corporation would not be liable."

In the written ruling and the minute order of that date, the court granted Davis's motion to tax costs, re the Parent, and struck the Parent's Memorandum of Costs.

There were then further proceedings in the trial court, commenced when Davis moved ex parte for a nunc pro tunc correction of the judgment due to an arithmetical mistake in the costs award. A copy of the June 7 judgment, signed by the court, and with the interlineations adding the Parent, was attached to the motion.

Defendants agreed that there was an arithmetical mistake, but opposed the motion on the ground that the judgment was not the correct judgment because it had never been entered as a judgment or served on the parties and because it was contrary to the court's ruling of October 25.

At oral argument on January 6, the Parent asked the court to enter a new judgment which would preserve its appeal rights. The court's January 6 order was that the June 7 judgment be amended nunc pro tunc to change the costs. On January 17, the Parent Corporation filed a new notice of appeal, appealing the January 6 judgment.

On this appeal, the Parent contends that "the January 6, 2006 addition of the Parent Company to the Judgment was legal error." The Parent argues that the evidence was insufficient, and also argues that the amendments to the judgment were not clerical, but substantive, and that the court had no power to make such amendments.

Timeliness of the Appeal

There is a threshold issue, the timeliness of the Parent's appeal. The arguments here are many and complex. We begin with the notices of appeal. There are two, a November 15, 2005 notice of appeal from the October 25 order granting Davis's motion to strike costs of the Parent, and aJanuary 17, 2006 appeal from the January 6 judgment.

Davis's timeliness argument begins with the argument that the order being appealed from was made on July 19, 2005, not on January 6, 2006. We think this is correct. On July 19, the judgment was amended to make the Parent a judgment debtor in this action. It is true that in August and September the court indicated that the issue was still under review and had not been decided, but that does not change the effect of the judgment. Indeed, the court's October order demonstrates the effect of the July 19 amendment to the judgment. The court indicated that it did not intend that effect, but the court's later comments do not control. The judgment does.

However, we do not agree with Davis that the Parent had only 60 days from July 19 in which to appeal. Under California Rules of Court, rule 8.104, subdivision (a)(1) and (2), the 60 day limit applies after the superior court or a party mails or serves a document entitled notice of entry of judgment or a file-stamped copy of the judgment. The only thing served or mailed on July 19 was a copy of the minute order, which is not entitled notice of entry of judgment.

The Parent argues that under California Rules of Court, rule 8.104, subdivision (a)(3), it had 180 days from July 19, that is, until January 16, 2006, to appeal, making its November and January notices of appeal timely. We do not agree that the January 2006 notice was timely. It was dated January 12, but was not filed until January 17, and was under the Parent's theory untimely.

We do find the November 15 notice timely. That notice specifies that it is from the October 25 ruling, but a notice of appeal must be liberally construed (Cal. Rules of Court, rule 8.100, subd. (a)(2)), and we think the November 15 notice was sufficient to bring before us the substantive issue of the Parent's liability as judgment debtor. Given the unusual procedural facts of this case, we believe that it is reasonably clear what appellant was trying to appeal from, and that Davis could not possibly have been misled or prejudiced. (D'Avola v. Anderson (1996) 47 Cal.App.4th 358, 362, citing Luz v. Lopes (1960) 55 Cal.2d 54, 59.)

The merits

We agree with the Parent that the July 19 amendments were not clerical corrections, but a substantive ruling, and were thus outside the court's power. Under Code of Civil Procedure section 473, subdivision (d) "The court may, upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, . . ."

"'The general rule is that once a judgment has been entered, the trial court loses its unrestricted power to change that judgment. The court does retain power to correct clerical errors in a judgment which has been entered. . . . [Citation.]" (Rochin v. Pat Johnson Manufacturing (1998) 67 Cal.App.4th 1228, 1232.) "An amendment that substantially modifies the original judgment or materially alters the rights of the parties, may not be made by the court under its authority to correct clerical error, . . ."

(In re Candelario (1970) 3 Cal.3d 702, 705.)

Davis's argument on this issue rests on its contention that the jury found that both Bosch and the Parent had breached their employment contract with Davis and owed him unpaid wages. Not so. The jury was asked whether Bosch or the Parent had breached a contract or owed wages, an entirely different matter.

Before the July 17 amendments, the Parent was not a judgment debtor, and could move for costs as a prevailing party. After the amendment, it was a judgment debtor, and could not. The July 17 amendments to the judgment were substantive, not clerical.

Davis also relies on the court's comment that it had only corrected a clerical error. The argument is a peculiar one. The court did make that comment, but it did so while under the misapprehension, induced by Davis, that the ruling did not make the Parent liable on the judgment. If that is indeed Davis's interpretation of the amended judgment, he should have no problem with the result we reach here.

Finally, the Parent asks us to find that it was a prevailing party entitled to costs. That is a matter for the trial court on remand.

Davis's Cross-Appeal

1. The ruling on the unpaid wages award

The jury was instructed that in order to determine damages for breach of employment contract, it must "decide the amount that Kenneth Davis would have earned from [Bosch and the Parent] up to today. . . Two, add the present cash value of any future wages and benefits that he would have earned after today for the length of time the employment with [Bosch and the Parent] was reasonably certain to continue. The special verdict form asked "What are Kenneth Davis's damages for breach of employment contract?" and asked the jury to specify past economic lost and future economic loss. The jury put the past lost at $195,000 and the future loss at zero.

The jury was also instructed that to establish his claim for unpaid wages, Davis was required to prove that he worked for Bosch and the Parent, was discharged by Bosch and the Parent, that Bosch and the Parent owed Davis wages under the terms of the employment, and the amount of the unpaid wages. The jury was also instructed that "wages includes all amounts for labor performed by an employee, whether the amount is calculated by time, task, fees, commissions, or other matters."

The special verdict asked whether Bosch or the Parent discharged Davis and whether Bosch or the Parent "owe Kenneth Davis wages under the terms of employment?" Having answered both questions "yes," the jury was then asked "What is the amount of unpaid wages?" and answered "$68,205."

Davis's argument references the evidence that he was put on unpaid leave in September 2002, and fired in March 2003. The argument is that the unpaid wages award represented Davis's wages between his suspension in September 2002, and his termination of March 2003; and the award for past economic loss represents amounts owed for the period between Davis's termination and trial.[2]

We simply see nothing in the record which would allow us to agree. The jury was not instructed that past economic losses should be awarded for one time period and unpaid wages awarded for another, and we have no reason to believe that it did so.

2. Fees

Davis moved for attorney's fees under Labor Code section 218.5, which provides that "In any action brought for the nonpayment of wages, fringe benefits, or health and welfare or pension fund contributions, the court shall award reasonable attorney's fees and costs to the prevailing party if any party to the action requests attorney's fees and costs upon the initiation of the action." Davis presented evidence that over 2000 attorney hours had been billed and that $841,695 had been spent in fees. He sought a multiplier of two, based on the risks taken by counsel in pursing the action on a contingency basis, the skill displayed by counsel, and the importance of the case to the public, and sought an award of $1,683,390. The court awarded only $45,350.

Davis contends that the award was an abuse of discretion. He begins his argument by citing the rule that California recognizes the prompt payment of wages due as a fundamental policy. (Smith v. Rae-Venter Law Group (2002) 29 Cal.4th 345, 360.) He then argues that an award of fees under Labor Code section 218.5 should be calculated through the lodestar adjustment method applicable to other kinds of statutory fee awards, such as fees under FEHA or under Code of Civil Procedure section 425.16. With such a calculation, the court determines the lodestar amount by determining reasonable number of hours spent and the prevailing hourly rate, then may increase or reduce the amount based on such factors as the novelty and difficulty of the questions involved, the skill displayed, the extent to which the litigation precluded other employment by the attorneys, and the contingent nature of the fee award. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131-1132.)

Davis argues that the court did not make such a calculation here, but merely applied a mathematical formula, and awarded two-thirds of the award of unpaid wages, which is impermissible. (Press v. Lucky Stores, Inc. (1983) 34 Cal.3d 311, 322-323.)

Even if Davis is correct that the lodestar method applies, we see no abuse of discretion. First, Labor Code section 218.5 did not entitle Davis to fees for prosecuting his entire case, which included causes of action dismissed prior to trial, and causes of action (defamation, age discrimination, and invasion of privacy) on which Davis did not prevail and which would seem to have nothing to do with proof of the wage claim. Much of the trial was occupied with Davis's proof of the existence of an implied contract to terminate only for good cause, and proof that his SPIFF practices were legitimate and that Bosch's investigation was defective, issues that had little to do with the wage claim. A claim for wages owed does not depend on a finding of wrongful discharge. (Gould v. Maryland Sound Industries, Inc. (1995) 31 Cal.App.4th 1137, 1147.) When we presume in favor of the judgment (Levy v. Toyota Motor Sales, U.S.A., Inc. (1992) 4 Cal.App.4th 807, 816), we cannot conclude that the court merely applied a formula, but instead conclude that the court considered the bills and determined the number of hours reasonably spent. We also note that while counsel asked to be compensated at $350 an hour for one plaintiff's lawyer, and $300 an hour for the other, the court was not obliged to accept those requests. (Ibid.)

We agree with Davis that given the amount of the award it is unlikely that the court applied a multiplier, but given that Davis asked the jury for over $3 million, and recovered much less, we do not see that the court abused its discretion in this regard.

3. The award of costs to Tharp

Bosch executive Gary Tharp was a defendant in the case, named only in the cause of action for defamation. In that cause of action, Davis contended that Tharp (and the other defendants) committed the tort by publishing the statements that Davis had been terminated, that Bosch was giving its files to the FBI, and that Bosch employees should distance themselves from Davis; by representing and implying to the industry and prospective employers that Davis was a criminal; and by "adding the further statement by innuendo that [Davis] was not competent to perform his job and carry out his chosen trade, occupation and profession." Tharp prevailed at trial, and later moved for costs of $19,133. The court made that award.

Davis contends that the award was an abuse of discretion. (Gibson v. Bobroff (1996) 49 Cal.App.4th 1202, 1209.) He notes that Tharp, one of three defendants, sought one-third of jury fees, expert witness fees, deposition costs, etc., and argues that none of these costs except a first appearance fee and part of Tharp's deposition costs related to Tharp's defense. In Davis's view, Tharp was entitled only to costs solely attributable to his own defense, and was not entitled to costs for anything that also benefited other defendants.

We see no abuse of discretion here. The trial largely involved Davis's activities relating to the SPIFF program and Bosch's investigation of those activities, directly relevant to the statements allegedly made by Tharp, and thus to the defamation claim. Further, we see no support in law for Davis's theory that Tharp is not entitled to costs if the cost also benefited the other defendants. This essentially amounts to a theory that, for instance, when all defendants request a jury, no defendant may recover those costs.

Davis makes two additional arguments concerning expert witness fees. One is that Tharp was not entitled to those costs because his offer to compromise (Code Civ. Proc.,  998) was not reasonable and in good faith. "A plaintiff who does not accept a valid pretrial offer to compromise and who fails to obtain a more favorable judgment or award may be required to pay defendant's expert witness costs, so long as the section 998 offer was reasonable and made in good faith." (Hartline v. Kaiser Foundation Hospitals (2005) 132 Cal.App.4th 458, 470-471.) The reasonableness of the offer is determined by an examination of all the circumstances, and is left to the sound discretion of the trial court. (Ibid.) Where a defendant obtains a judgment more favorable than its offer, the judgment is prima facie evidence that the offer was reasonable. (Elrod v. Oregon Cummins Diesel, Inc. (1987) 195 Cal.App.3d 692, 699.)

Tharp's offer was that Davis would dismiss all claims against him and that each party would bear its own fees and costs. Davis recovered nothing from Tharp, making the offer, which would have spared Davis from paying costs, reasonable.

Davis's other argument about the expert fees is that neither expert was relevant to Tharp's defense. One of the experts testified on damages, surely relevant to any defendant. The other was Michael Robbins, a lawyer and consultant called by Davis, who opined on Bosch's investigation of Davis's malfeasance. As we have noted, the defamation claim was intertwined with the evidence concerning the SPIFF program and the investigation, making that expert's testimony relevant to Tharp. Moreover, our record does not include Robbins's deposition testimony, or the expert declaration relating to him. We thus cannot say what Tharp could have legitimately anticipated regarding Robbins's deposition, and what necessity Tharp saw for participating in that deposition.

Davis also contends that the court erroneously allowed amounts for witness meetings, court equipment, and parking charges. The argument ignores Code of Civil Procedure section 1033.5, subdivision (c)(4), which provides that "[i]tems not mentioned in this section and items assessed upon application may be allowed or denied in the court's discretion." Items not specifically allowable under Code of Civil Procedure section 1033.5, subdivision (a) and not prohibited under Code of Civil Procedure section 1033.5, subdivision (b) may 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. (Code Civ. Proc., 1033.5, subd. (c)(2).) Whether a cost item was reasonably necessary to the litigation presents a question of fact for the trial court and is reviewed for abuse of discretion. (City of Anaheim v. Department of Transportation (2005) 135 Cal.App.4th 526, 534-535; Applegate v. St. Francis Lutheran Church (1994) 23 Cal.App.4th 361, pp. 363-364.) Davis's bare argument does not establish abuse of discretion.

Disposition

We reverse the judgment as to the Parent, and in all other respects affirm. Gary Tharp and the Parent to recover costs on appeal. All other parties to bear their own costs.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ARMSTRONG, Acting P. J.

We concur:

MOSK, J.

KRIEGLER, J.

Publication courtesy of San Diego pro bono legal advice.

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[1]Bosch's motion to augment the record with the transcript of hearings held on October 18 and 25, 2005, is granted.

[2]In a footnote, Davis suggests that the possibility of double recovery was discussed during argument on the special verdict form, and that the form was drafted to avoid that problem. At the cited pages of the record, counsel and the court certainly had some discussion of double recovery, at least with respect to the age discrimination and wrongful discharge causes of action. However, the court and counsel were working from draft forms which we do not have, so that we cannot really follow the conversation. We certainly cannot say (as Davis argues) that the court and counsel agreed that the form submitted to the jury prevented the jury from awarding a double recovery.