MJS Industries v. Sukhov

Filed 10/17/06 MJS Industries v. Sukhov CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Thomas H. Cahraman, Judge. Affirmed.

Law Offices of Michelle J. Sukhov and Michelle J. Sukhov for Plaintiff and Appellant.

Thompson & Colegate, Robert B. Swortwood and Laura D. Schmidt for Defendant and Respondent.

Plaintiff MJS Industries (MJS) appeals from a judgment entered in favor of defendant Alex Sukhov, as Trustee of the Marjorie T. Houston Living Trust as amended on January 8, 1997,^[1] (Trustee) after a court trial. It claims that the trial court erred in failing to find that it had demonstrated the existence of sufficient written memoranda to constitute a contract for its purchase of real property from Trustee. Alternatively, it claims that the trial court erred both in failing to find that it avoided the bar of the statute of frauds because it partially performed the contract, and in failing to find Trustee equitably estopped to assert the defense. MJS also claims that the trial court both erroneously allowed the testimony of witness Mike Gamez, because Trustee did not identify him during discovery, and erroneously awarded Trustee costs for attempted, but unsuccessful, service of process. We affirm.

Facts and Procedural History

Alex Sukhov was a co-trustee and the sole beneficiary of the Marjorie T. Houston Living Trust as amended on January 8, 1997. That trust was the owner of real property described as parcel 2 of parcel map 13, City of Tecopa, County of Inyo, State of California (the Property). The Property consists of a lot of unimproved desert land with two trailers on it with available electrical and telephone utilities.

Michelle Sukhov,^[2] an attorney licensed to practice in California, created MJS in November 2000 and is its sole shareholder, officer and director. She is Alex’s niece. In November of 2002, Michelle learned that Alex wanted to sell the Property and expressed an interest in purchasing it. Discussions regarding that sale took place on three or four occasions between that time and January 2003. Alex wanted $4,000 for the Property and mentioned that there may be liens against it. Alex was aware that two law firms had liens on the Property for work performed for Marjorie Houston. At the latest, Michelle became aware that the liens totaled $38,885 of principal alone when she reviewed the preliminary title report.. After the commencement of this litigation, both liens were paid off by Vladimir Sukhov, Alex’s brother.

Pursuant to their conversations Michelle asked Alex for some indication regarding the value of the Property and in a January 30, 2003, fax he sent her a copy of a letter dated November 21, 2001, from a real estate agent indicating the Property would likely sell for between $3,000 to $4,000. Alex sent the fax to confirm the $4,000 purchase price. Michelle then prepared a letter on behalf of MJS and sent it to Ms. Marjorie Houston, in care of Alex, enclosing a $500 check for the deposit on MJS’s purchase of the Property for a total of $4,000. At that point, Michelle believed that there was an oral contract to sell the property because she had agreed to Alex’s $4,000 price. The $500 check was never cashed or sent to escrow.

After receiving Michelle’s January 31, 2003, letter, Alex opened an escrow on the Property by contacting Alison Magana, an escrow officer that he had worked with before. Alex faxed four pages to Ms. Magana, a cover sheet asking her to open an escrow, indicating that he would be utilizing his power of attorney on behalf of Marjorie Houston, MJS’s January 31, 2003, letter signed by Michelle and addressed to Marjorie Houston upon which he wrote “buyer,” and a copy of a tax statement indicating that the owner of the Property was the Marjorie T. Houston trust dated July 8, 1996. Ms. Magana then prepared escrow instructions.

Michelle began to make improvements on the Property and Alex was aware of them. Those improvements, done with the help of her father, Stephen Sukhov, included the installation of pipes running from a neighbor’s well and the installation of a tub to contain the hot mineral water, as well as the construction of a bath house enclosure for the tub. The gate was also enlarged to accommodate a motor home entering the Property. The cost for these improvements was over $5,000. However, no permits were ever obtained for the improvements and the Property was eventually red-tagged by the Inyo County Department of Building and Safety. Michelle claimed that she moved onto the Property the first weekend in February 2003, but later stated that she only visited at least once a month beginning at that time. The following month, Alex and his family visited the Property and he removed his trailer. While he was there he and Stephen worked on the improvements to the Property together. Michelle parked her trailer on the Property in March 2003. Alex visited the Property again in April 2003, and never told Michelle to stop improving the Property or to remove the improvements that had been completed, nor did he tell her to remove her trailer from the Property.

Because she had not yet received any escrow instructions, Michelle sent a letter, dated March 21, 2003, to Ms. Marjorie Houston, care of Alex, enquiring as to the status of the transaction. On March 26, Alex called Ms. Magana and told her to send out the escrow instructions, which she sent to both parties on April 11. At that time Ms. Magana informed Alex that the escrow company needed information on the deeds of trust that appeared on the preliminary title report for the Property. Alex never discussed these liens with Ms. Magana and she assumed, without direction from either party, that they would be paid off. A short time later Michelle received the escrow instructions, which she executed on behalf of MJS. Ms. Magana received the signed instructions from the buyer on April 14, and at its request prepared an estimated closing statement. Despite the escrow not having been opened because the seller had not executed the instructions, the buyer sent in the estimated amount. Alex read the escrow instructions for the first time in late April or early May. On May 12, 2003, Alex called Michelle and informed her that Marjorie Houston had passed away and he would not be selling the Property. He also mentioned that he believed the plan had been that a partnership between he and Stephen would purchase the property and told her that the escrow instructions were wrong. Michelle responded that there was an agreement and that she expected him to perform. In May 2003, prior to speaking to Alex a second time, Michelle filed the complaint on behalf of MJS.

Ms. Magana never received signed escrow instructions from Alex as he never executed them. On July 3, Alex advised Ms. Magana that Marjorie Houston had died, that the escrow instructions were not agreed to by the parties and that he was cancelling the transaction.

After filing suit Michelle continued to visit the Property once or twice each month, although she removed her trailer in June 2003. In addition, Michelle changed the locks on the gate, Marjorie Houston’s trailer and the bathhouse. She also had telephone and electrical service begun at the Property in MJS’s name in May and August 2003, respectively, but those services were discontinued in November 2004 and October 2003, respectively. Alex and Marjorie Houston paid for phone service, for electricity and for the property taxes on the Property from 2001 through December 2003, September 2003 and June 2004, respectively. The only persons that Michelle told that she was taking possession of the Property were her parents and Alex.

On September 5, 2003, MJS filed its amended verified complaint against Trustee alleging five causes of action for (1) specific performance, (2) breach of contract, (3) breach of the covenant of good faith and fair dealing, (4) intentional misrepresentation and (5) negligent misrepresentation, all based upon the existence of an alleged oral contract for the sale of the Tecopa property. Trustee filed his verified answer asserting the statute of frauds as an affirmative defense.

On March 12, 2004, MJS filed a motion for summary adjudication of its first cause of action for specific performance. The motion was based upon MJS’s assertion that memoranda and correspondence between it and Trustee contained the material terms to a contract for the sale of the Property according to King v. Stanley (1948) 32 Cal.2d 584, 589 (King), sufficient to satisfy the statute of frauds. It was further based upon the alternative argument that if the documents were insufficient to satisfy the statute of frauds, both part performance and equitable estoppel should require that the agreement be enforced. After a hearing on May 28, 2004, the trial court denied the motion on the grounds that MJS failed to meet its burden of demonstrating the existence of a valid and enforceable contract between the parties and because triable issues of material fact existed.

On December 8, 2004, MJS filed a motion in limine seeking to prevent Trustee from calling Mike Gamez (Gamez) as a witness because Gamez was not identified as a witness in Trustee’s responses to discovery. Trustee opposed the motion on the ground that MJS had been aware of Gamez’s name and the fact that he had knowledge of the Property since the time of the opposition to MJS’s motion for summary adjudication in May 2004, and therefore could not be unfairly prejudiced by his testimony. Just prior to the commencement of trial the trial court ruled that Gamez would be allowed to testify, subject to a motion to strike, because his existence was disclosed in the summary judgment proceedings, because MJS’s most recent request for supplemental discovery responses had been eight months earlier, and because MJS had known that Trustee intended to call Gamez to testify two weeks prior to trial and did not attempt to depose him.

The court trial began on December 14, 2004, and ended on January 5, 2005, after six days of testimony. On February 4, 2005, the trial court issued a tentative ruling finding in favor of Trustee. In its tentative decision, the trial court found that there was no mutual assent to material terms and hence no contract at all for the sale of the Property. Further, it found that even had there been a contract, it would not be valid since it was not in writing and no exception to the statute of frauds would apply. MJS then requested a statement of decision on 28 separate points and offered a 58 page proposal as to its contents. Trustee submitted a proposed judgment. On March 16, 2005, the trial court issued its statement of decision. It is identical to the tentative opinion with the exception of the addition of an explanation why it was not responding separately to each of MJS’s 28 points and why it would not sign Trustee’s proposed judgment. MJS objected to the statement of decision. However, those objections were overruled and the trial court entered judgment in favor of Trustee on June 28, 2005.

Subsequently, Trustee filed a memorandum of costs that included $969.00 for service of process. MJS sought to tax costs, among others, specifically the entire amount claimed for service of process. After a hearing the trial court took the matter under submission, ultimately granting the motion in part and denying it in part, but allowing costs for the attempted, though unsuccessful, service of process on Stephen Sukhov, Edith Sukhov, Mike Gamez and William Ralston under Code of Civil Procedure section 1033.5, subdivision (c)(4).^[3] This appeal followed.

Discussion

A. Specific Performance Was Not Mandated by the Evidence

MJS first argues that the written correspondence in evidence contained all of the material terms of the agreement according to King, supra, 32 Cal.2d at p. 589. That case held that “[a]n agreement for the purchase or sale of real property does not have to be evidenced by a formal contract drawn with technical exactness in order to be binding. A memorandum of the agreement (Civ. Code, § 1624 (4)) is sufficient, and this may be found in one paper or in several documents, including an exchange of letters or telegrams or both [citations], or in a letter from the vendor to the purchaser which is accepted and acted upon by the latter [citation.].” (King, supra, at p. 588.) “The material factors to be ascertained from the written contract are the seller, the buyer, the price to be paid, the time and manner of payment, and the property to be transferred, describing it so it may be identified [Citations.].” (Id. at p. 589.) “Equity does not require that all the terms and conditions of the proposed agreement be set forth in the contract. The usual and reasonable conditions of such a contract are, in the contemplation of the parties, a part of their agreement. In the absence of express conditions, custom determines incidental matters relating to the opening of an escrow, furnishing deeds, title insurance policies, prorating of taxes, and the like. [Citations.]” (Id. at pp. 588-589.) MJS asserts that King is controlling in this matter and that specific performance was mandated in this case because the seller, buyer, price, time and manner of payment and a description of the property were all contained in the fax that Alex sent to Alison Magana.

In the first place we observe that contrary to the suggestion implied by MJS’s argument, the court in King did not find that specific performance was mandated under the circumstances there present. Rather, it concluded that the trial court had been within its power to decree the equitable remedy of specific performance. (King, supra, 32 Cal.2d at pp. 590-591.) Specific performance is an equitable remedy. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1240.) Whether or not to grant an equitable remedy is within the sound discretion of the trial court. (Cortez v. Purolator Air Filtration Products Co. (2000) 23 Cal.4th 163, 179-180.)

In the statement of decision in the instant case, the trial court found that there was no evidence that the parties to the contract had mutually assented to all of its terms because there was no written evidence of a clear offer, or of a clear acceptance. It also found that the parties failed to discuss which party would be responsible for the two liens, which, because of their size in relation to the value of the Property, it considered to be a material term of any contract for its sale.

In order for a contract to be formed both an offer and an acceptance of that offer must be conveyed between the parties. (Donovan v. RRL Corp. (2001) 26 Cal.4th 261, 270-271.) The evidence here is that discussions regarding the sale of the Property took place on three or four occasions between Alex and Michelle from November 2002 to January 2003. Those discussions reflected that Alex wanted $4,000 for the Property and stated that there may be liens against it. The first written document alleged to reflect these negotiations was a fax from Alex to Michelle forwarding her a copy of a valuation letter to confirm that $4,000 was the fair market value of the Property. That document does not contain a written offer to sell the Property for the amount of $4,000, no less an offer to do so free and clear of the liens that had been discussed. The next written correspondence alleged to have constituted the agreement was MJS’s January 31, 2003, letter to Marjorie Houston, in care of Alex, stating that he agreed to sell the Property to MJS for $4,000, indicating that MJS was willing to purchase the Property despite the possibility that its water supply was contaminated, and enclosing a check for $500 to open escrow. Alex faxed a copy of that letter, which he marked “buyer,” to Alison Magana along with a copy of the property tax assessment to identify the Marjorie T. Houston trust as the seller. He indicated that he would be using his power of attorney to complete the sale but signed the fax simply, “Alex.” MJS argues that this fax reflects Alex’s written acceptance of its offer to purchase the Property for $4,000. However, it is undisputed that this fax was not sent to Michelle or MJS. Because acceptance of an offer must be conveyed to the party that made the offer (id. at pp. 270-271) in order to form a contract, there is no written evidence of an offer and an acceptance conveyed between the parties to this alleged agreement.

That fact distinguishes this case from King, supra, 32 Cal.2d 584, where the issue of offer and acceptance was not in question. The written correspondence between the parties there clearly reflected an offer, a counteroffer, an acceptance and an acknowledgement of that acceptance, prior to the institution of an escrow. (Id. at pp. 586-588.) Further, while it did mention the opening of escrow, MJS’s letter of January 31, 2003, despite MJS’s new assertion to the contrary, did not specifically state that the opening of escrow would demonstrate the seller’s agreement to any terms proposed by the buyer. In fact, Michelle testified at trial that the offer and acceptance were Alex’s January 30, 2003, letter and MJS’s January 31, 2003, letter, respectively. Thus, King is not controlling on this point.

Similarly, King did not consider the issue whether any of the writings were signed by the party to be charged, as it appears that the correspondence between the parties therein met that requirement. (King, supra, 32 Cal.2d 586-587.) A writing sufficient to constitute a written contract for the sale of real property must be signed by the party to be charged or by that party’s agent. (Civ. Code, § 1624, subd. (a)(3).) The trial court found that MJS failed to present sufficient evidence of such a writing signed by Alex as co-trustee of the Marjorie T. Houston Living Trust as amended on January 8, 1997, which was the entity that owned the Property. MJS argues that this finding was in error because it contradicts a finding that Alex’s July 3, 2003, letter cancelling escrow was subscribed in his capacity as trustee. We can locate no such finding in the statement of decision. At the page in the record cited by MJS, the trial court simply observed that the July 3, 2003, letter reflected no concern regarding the identity of the buyer. From that observation, it simply cannot be concluded that the trial court inferred that Alex was required to act in his capacity as trustee to cancel an escrow for a sale that it found had never been memorialized in an enforceable contract. In addition, MJS states, without citation to the record, that Alex admitted during his testimony to acting in his capacity as trustee (the only citation provided in MJS’s briefs on this point at all does not contain the purported testimony). Even were that statement true, and even were we not inclined to ignore it for its lack of support, it would not meet the requirement for a written signature.

MJS also asserts that the identity of the party who would be responsible for the liens was not a material element of the contract for sale because the law imposes the responsibility of passing marketable title on the seller of property. (King, supra, 32 Cal.2d at pp. 589-590.) While MJS argues to the contrary, even the King court recognized that the “usual and reasonable conditions” of a contract for the sale of real property are usually part of the agreement and if there are no express conditions between the parties, “custom determines incidental matters relating to the opening of an escrow.” (King, supra, 32 Cal.2d at pp. 588-589, italics added.) Alex testified that he had informed Michelle of the existence of the two liens and told her that they would need to be dealt with but did not tell her that he would pay them off when she purchased the property. Michelle admits that prior to sending her letter of January 31, 2003, she was aware that there were outstanding liens against the Property. The trial court was not in error when it determined that liens against a piece of property totaling $38,885 in principal only, or nine times its agreed fair market value and alleged sales price of $4,000, did not constitute a usual and reasonable condition of the contract for sale, nor a matter merely incidental to the opening of an escrow, but rather needed to be assigned to one party or another to satisfy as part of the transaction such that King did not apply here.

Further, given that there was evidence in the record that the parties were aware of the existence of the liens prior to the preparation of the documents that are alleged to memorialize the terms of the agreement, we cannot conclude that the trial court was in error when it determined that the written documents between the parties as evidenced was too uncertain to be enforced as a contract because of the omission of responsibility for the payment of the liens. (Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4th 793, 811-812 [if there is no basis for determining what obligations the parties have agreed to there is no contract].) Nor was it in error to determine that while it could interpret the terms agreed upon by the parties, it could not create such terms itself in the absence of any indication of an agreement. (ML Direct, Inc. v. TIG Specialty Ins. Co. (2000) 79 Cal.App.4th 137, 142.) In other words, it could not simply assign responsibility for the liens to Trustee as MJS desired.

B. MJS Has Not Shown Error in Failing to Find Partial Performance

MJS next argues that it demonstrated both the applicability of Code of Civil Procedure section 1972, subdivision (a), which provides that a court can compel the specific performance of an agreement if it has been partly performed, despite the absence of an instrument in writing signed by the party to be charged or that party’s agent, and that the trial court erred in its interpretation of Sutton v. Warner (1993) 12 Cal.App.4th 415 (Sutton). “‘Under the doctrine of part performance, the oral agreement for the transfer of an interest in real property is enforced when the buyer has taken possession of the property and either makes a full or partial payment of the purchase price, or makes valuable and substantial improvements on the property, in reliance on the oral agreement.’ [Citation.]” (Id. at p. 422, original italics.) The possession required “must be more than a ‘mere technical possession, not open to observation of the neighborhood, and capable of being proved only by select and confidential witnesses . . . .’ [Citation.] It must be actual, visible, notorious and exclusive, so that it manifests clearly that the buyer is claiming and asserting a distinctive ownership of the property inconsistent with the right of possession or ownership in any other person. [Citations.]” (Id. at pp. 422-423.)

On the issue of possession, the trial court found that there was no evidence that MJS, the alleged purchaser of the property had installed a business sign or made any preparations to do business on the property. It also found that Michelle, the president of MJS only visited the Property a few times and parked her recreational vehicle on the Property, and that her father had completed some improvements thereon. Finally, it observed that MJS did not attempt to procure any utility service for the Property in its name until after the dispute arose regarding whether there had been an agreement to sell.

MJS asserts that the trial court erred when it stated that Sutton required a business sign in order to make possession actual, visible, notorious and exclusive. The trial court made no such statement. Rather, we understand the trial court’s reference to a business sign to be an example of something that MJS might have done to indicate that it had taken possession of the Property, not that such a sign was a requirement. The key element in the statement of decision was that the trial court found that MJS’s showing, as summarized above, was “a far cry from the ‘visible, notorious, and exclusive’ possession we see in [Sutton.]” Other than mentioning the business sign, MJS does not challenge the trial court’s finding. Because it did not demonstrate that the trial court erred in concluding that it had not established possession of the Property, we need not consider its assertions relative to the improvements installed. We will however, observe that MJS has not challenged the trial court’s finding that there was insufficient evidence to establish that MJS actually paid for and was therefore the entity that made the improvements.

C. MJS Has Not Shown Error in Failing to Find Equitable Estoppel

Equitable estoppel may be raised to preclude the defense of the statute of frauds. (Byrne v. Laura (1997) 52 Cal.App.4th 1054, 1068, 1070.) “Whether the doctrine of equitable estoppel should be applied in a given case is generally a question of fact. [Citations.]” (Id. at p. 1068.) Equitable estoppel can be applied by the court to “prevent fraud that would result from refusal to enforce oral contracts in certain circumstances. Such fraud may inhere in the unconscionable injury that would result from denying enforcement of the contract after one party has been induced by the other seriously to change his position in reliance on the contract [citations], or in the unjust enrichment that would result if a party who has received the benefits of the other’s performance were allowed to rely upon the statute. [Citations]” (Monarco v. Lo Greco (1950) 35 Cal.2d 621, 623-624.) Of course, in order to apply the doctrine of equitable estoppel to deny the existence of an oral contract, there must be proof of a contract. Given the trial court’s conclusion that no such agreement existed, estoppel had to be denied on that basis.

Even had the trial court determined that there was an oral agreement, MJS has not demonstrated that it was required to find that equitable estoppel prevented Trustee from invoking the statute of frauds. The trial court denied equitable estoppel on the ground that MJS had not shown that it suffered unconscionable injury as the result of reimbursing Stephen Sukhov for a hot tub and piping and on the ground that Michelle, MJS’s president, is a licensed attorney who should have realized that when the improvements were made there was no valid contract for the sale of the Property. In other words there was no reasonable reliance on any promise made by Trustee nor were any injuries MJS might have suffered unjust or unconscionable.

In its briefs on appeal MJS focuses on Trustee’s alleged silence for several months, in the face of his institution of an escrow and his knowledge of the improvements that were made on the Property, as grounds for imposing an estoppel. Even if the allegations regarding Trustee’s actions in this regard were accepted as true, they do not demonstrate any error on the part of the trial court. MJS has failed to challenge, in any way, the trial court’s legitimate basis for refusing to impose an estoppel. As such, it has not shown that it is entitled to the relief it seeks.

D. MJS Has Failed to Demonstrate That Allowing Gamez’s Testimony Was Reversible Error

MJS argues that the trial court erred when it refused to exclude Gamez’s testimony because Trustee failed to disclose Gamez as a witness during discovery. It cites Chronicle Pub. Co. v. Superior Court (1960) 54 Cal.2d 548 (Chronicle) and Crumpton v. Dickstein (1978) 82 Cal.App.3d 166 (Crumpton), for the proposition that the trial court was bound to exclude Gamez’s testimony as a discovery sanction. The Chronicle case involved a writ to compel the trial court to reverse a protective order seeking the disclosure of information maintained by the State Bar. (Chronicle, supra, 54 Cal.2d at p. 556.) Nowhere in the opinion does the court discuss discovery sanctions. The Chronicle case does not stand for the proposition for which MJS cites it.

The court in Crumpton, supra, 82 Cal.App.3d at pp. 171-172, did hold that the trial court erred in admitting the testimony of two expert witnesses who were not disclosed in discovery nor in response to a motion granted a mere month prior to trial. (Id. at p. 172.) However, the basis for the ruling was that the trial court erred when it found that the determining factor in whether to preclude the testimony of these experts was whether the omission was willful. (Id. at pp. 171-172.) Even so, the only reason that the error was found to be reversible in that case is that the testimony of the experts was prejudicial. (Id. at pp. 172-173; see also Cal. Const., art. VI, § 13 [judgment cannot be reversed absent miscarriage of justice].) We note that expert witness disclosure has been the subject of a good deal of legislation since the decision in that case and is in a class apart from other types of witnesses. (See Historical and Statutory Notes, 21-22 West’s Ann. Code Civ. Proc. (2006 supp.) foll. § 2034.010, p. 439.) Further, the holding there did not change the fact that ultimately, whether or not to impose discovery sanctions on a party is within the broad discretion of the trial court and is subject to reversal on appeal only if that discretion is shown to have been exercised in an arbitrary, capricious or whimsical fashion. (R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 496.) Given that the evidence supports the trial court’s finding that MJS knew of Gamez at the time of Trustee’s opposition to its motion for summary adjudication, because MJS’s most recent request for supplemental discovery responses had been eight months earlier, and because MJS had known that Trustee intended to call Gamez to testify two weeks prior to trial and did not attempt to depose him, we cannot conclude that its decision to allow the testimony (subject to a motion to strike that was never made) was an abuse of discretion.

Further, MJS’s contention that Gamez’s testimony was prejudicial to it because it was the only evidence upon which the trial court could have based its finding that MJS was not in actual, visible, notorious and exclusive possession of the property is simply erroneous. The statement of decision reflects several other factors that the trial court found important on that issue and does not even mention Gamez’s testimony.

E. MJS Has Failed to Demonstrate That the Award of Costs Was Error

MJS argues that costs for attempted service of process on Stephen Sukhov, Edith Sukhov, Gamez, and William Ralston were not authorized by Code of Civil Procedure section 1033.5, subdivision (a)(4) since it allows recovery of amounts incurred in “effecting” service. MJS asserts that consequently, a prevailing party may not have an award of costs for service of process where actual service was unsuccessful for whatever reason or was rendered unnecessary by the subsequent cooperation of the witness. Neither party has cited a case wherein this issue of the requirement for actual service has been addressed. However, we need not decide the issue in this case. Even if Code of Civil Procedure section 1033.5, subdivision (a)(4) were properly interpreted as MJS suggests, an award of costs incurred in attempting service is not one of the items specifically prohibited by Code of Civil Procedure section 1033.5, subdivision (b) (contrary to MJS’s position we do not agree that attempting to serve a reluctant witness with a subpoena is the equivalent of investigation expenses), and Code of Civil Procedure section 1033.5, subdivision (c)(4) provides the trial court with discretion to allow as costs items not mentioned in the section.

MJS maintains that Code of Civil Procedure section 1033.5, subdivision (c)(4) does not apply here because service of process is mentioned in subdivision (a)(4). However, if MJS is correct, subdivision (a)(4) allows costs as a matter of right only for service that is effected, not merely attempted. Thus, costs for attempted service of process are not an item otherwise listed in the section and the trial court had discretion to award them. Because MJS does not challenge the trial court’s exercise of discretion, but simply whether it had discretion at all, it has not established reversible error on this point.

In its notice of appeal MJS stated that it was appealing from the trial court’s order granting Trustee’s motion in limine number four, to exclude the testimony of Roza Sukhov. MJS has failed to raise this issue in its briefs and has therefore abandoned the point. (Long v. Cal.-Western States Life Ins. Co. (1955) 43 Cal.2d 871, 883.)

Disposition

The judgment is affirmed. Trustee is awarded costs on appeal.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P.J.

We concur:

McKINSTER

J.

GAUT

J.

Publication courtesy of California pro bono legal advice.

Analysis and review provided by La Mesa Property line attorney.

^[1] The parties refer to the trust as having been amended on June 8, 1997, and have even misnamed the trust as such in the first amended complaint. However, reference to the trust documents indicates that the trust was originally established on July 8, 1996, and was amended on January 8, 1997.

^[2] Michelle Sukhov and Alex Sukhov, in his capacity as an individual, will hereafter be referred to by their first names, not out of any familiarity or disrespect, but to ease the burden on the reader. (See, e.g., In re Marriage of Schaffer (1999) 69 Cal.App.4th 801, 803, fn. 2.)

^[3] “Any award of costs shall be subject to the following: . . . (4) Items not mentioned in this section and items assessed upon application may be allowed or denied in the court’s discretion.” (Code Civ. Proc., § 1033.5, subd. (c)(4).)