Becker v. Kajikuri
Filed 8/17/06 Becker v. Kajikuri CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
| DONALD BECKER, Plaintiff and Appellant, v. HISASHI KAJIKURI, Defendant and Respondent. | H029022 (Monterey County Super. Ct. No. M53675) |
This is appellant Donald Becker's second appeal of an award of costs in this case. Jeed Skelton sued respondent Hisashi Kajikuri, M.D. (Kajikuri) and others for medical malpractice. Becker, who alleges that Skelton is his common law wife, also sued, claiming loss of consortium. At the beginning of trial, Becker voluntarily dismissed his claim. Kajikuri sought prejudgment costs from Becker, who had not obtained a waiver of costs. In the first appeal (Case No. H026130), we affirmed the judgment awarding Kajikuri his prejudgment costs and awarded Kajikuri his costs on appeal.
After our remittitur issued, Kajikuri filed another memorandum of costs, claiming $361 in costs on appeal. Becker filed a motion to tax the appellate costs arguing that they were excessive in amount. The motion also asked the court to issue an advisory ruling, finding that his marriage to Skelton was valid under California law and that the settlement agreement between Skelton and Kajikuri precluded Kajikuri from filing an action against Skelton's community property to satisfy the judgment for costs against Becker. Kajikuri opposed the motion to tax. He also filed a motion for sanctions pursuant to Code of Civil Procedure[1] section 128.7 on the grounds that Becker had unreasonably refused to resolve the cost claim and that Becker's motion to tax included an impermissible request for an advisory opinion. The court granted the motion to tax in part, awarding Kajikuri $296 in costs. The court also granted Kajikuri's motion for sanctions and awarded him $945 in sanctions. Becker appeals.
We reject Becker's contention that the court erred when it failed to provide the advisory opinion he requested in his motion to tax. We conclude that the court did not abuse its discretion or deny Becker due process when it granted Kajikuri's motion for sanctions. We also hold that the order on the motion for sanctions meets the requirements of section 128.7. We shall affirm the order awarding appellate costs and sanctions to Kajikuri. However, we shall deny Kajikuri's motion for sanctions on appeal.
Facts and Procedural History
We review the allegations of the complaint and the procedural history related to Becker's first motion to tax costs and his first appeal to the extent they aid our review of the issues raised in this appeal. We take judicial notice of the statement of facts and discussion in the opinion filed in the previous appeal (H026130).
I. Allegations of Complaint
In their complaint, Skelton and Becker (hereafter jointly Plaintiffs) alleged that Kajikuri, John Brazinsky, M.D. (Brazinsky) and the Community Hospital of the Monterey Peninsula (hereafter jointly Defendants) committed malpractice while treating a lesion on Skelton's left lung. Plaintiffs also asserted that Skelton and Becker were husband and wife and that Becker had suffered a loss of consortium as a result of Defendants' negligent treatment of Skelton.
II. Dismissal of Becker's Loss of Consortium Claim
The case went to trial. Prior to jury selection, Becker voluntarily dismissed his loss of consortium claim with prejudice as to all defendants. In January 2003, the court entered judgment in favor of Brazinsky and Kajikuri against Becker based on Becker's voluntary dismissal of his claim and awarded Brazinsky and Kajikuri their costs of suit. After the testimony of Skelton's expert was stricken, Skelton and Kajikuri entered into a settlement agreement in which Skelton agreed to waive her appeal rights and dismiss the action in exchange for a waiver of costs by Kajikuri.
III. Kajikuri's First Memorandum of Costs
Kajikuri claimed $19,038.41 in prejudgment costs in his memorandum of costs and asked the court to apportion 50 percent of the cost bill to Becker's loss of consortium claim.
IV. Becker's First Motion to Tax Costs
Becker filed a motion to tax costs (hereafter â€
