Filed 4/27/21 Bilaver v. Bilaver CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment and an order of the Superior Court of Los Angeles County, Michael P. Vicencia, Judge. Appeal of judgment dismissed; order affirmed.

Thris Van Taylor for Defendant and Appellant.

Bergkvist, Bergkvist & Carter, Michael C. Bergkvist, Robert D. Feighner; Allan B. Weiss & Associates, Allan B. Weiss and Sivi G. Pederson for Plaintiff and Respondent.

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This appeal challenges the propriety of a cost bill that totals less than $2,000. The action arose from a dispute between brothers Ivan and Davor Bilaver over the ownership of certain real property.[1] During the course of the litigation, the court ordered the Estate of Marija Bilaver (the Estate) joined as an indispensable party. Following a bench trial, the court entered judgment, and awarded costs of suit, in favor of Ivan and the Estate.

Davor purported to appeal from both the judgment and the Estate’s cost bill. In ruling on Ivan and the Estate’s motion to dismiss the appeal, we found the notice of appeal was untimely as to the judgment but timely as to the challenge to the order awarding costs. Thus, we ordered Davor to limit his arguments to the order awarding the Estate its costs.[2] We dismiss the appeal to the judgment; and, finding no error, we affirm the order awarding the Estate its costs.

BACKGROUND

I. The property and the family’s agreements

In 1996, Ivan and Davor helped their parents, Branko and Marija Bilaver, purchase a house for $125,000. The family orally agreed that Davor would obtain a $30,000 mortgage loan and Ivan and Branko would each provide $50,000 for the down payment. They further agreed that Davor’s name would be on the deed while Ivan would pay the mortgage, taxes, insurance premiums, and any costs for maintenance.

In 2012, Branko and Marija moved to Croatia. Ivan and Davor then entered into a written agreement stating that Branko and Marija were the legal owners of the property and that Ivan would rent out the property and remit the rental income to their parents in Croatia. Ivan collected the rental income and sent the money to the parents until 2015 when Davor entered into a new rental agreement with the property’s tenant and kept the rental income for himself.

II. The complaint and trial

In 2016, Ivan sued Davor for breach of oral contract, breach of written contract, breach of implied covenant of good faith and fair dealing, breach of fiduciary duty, common count, unjust enrichment, quantum meruit, and declaratory relief. Ivan sought damages in the amount of payments made toward the mortgage, property taxes, insurance premiums, and the repairs to the property.

Although the parents were not named as plaintiffs, Ivan requested a judgment declaring that he and Marija had an enforceable constructive trust and beneficial interest in the property, that any rental income was to be sent to Marija for her retirement needs, and that upon Marija’s death and the sale of the property the proceeds would be divided between Ivan and Davor accordingly.[3] Marija passed away after the complaint was filed.

After Ivan gave his opening statement, the court set the matter for an order to show cause as to why the Estate should not be joined. The court found that Marija was an indispensable party and directed Ivan to the probate court to open the Estate. The probate court appointed Ivan as special administrator to the Estate for the limited purpose of participating in the litigation and issued letters of administration. When the Estate filed a notice of representation and advised the court it was represented by separate counsel, the court considered the Estate to have been joined as an indispensable party and trial resumed.

The court ruled in favor of Ivan and the Estate. It awarded them $40,000 in damages, and it ordered Davor to deliver a deed to the property to Ivan and the Estate. Judgment was entered, and costs were awarded.

III. The Estate’s request for costs

The Estate requested costs in the amount of $1,910.84, including $34.05 for copies of exhibits, $1,158 for court reporter fees, $490.79 for the filing fee in the probate action, and $228 for the cost of publication of the notice of administration for purposes of opening the Estate.

Davor filed a motion to tax costs, arguing that the Estate was not a party to the action because it never properly joined and did not pay a filing fee and that the probate court had exclusive authority to award those costs. His motion also requested sanctions on the grounds that the Estate’s cost bill was frivolous.[4] The motion to tax and for sanctions was denied.

DISCUSSION

Although Davor’s briefing often omits proper citations to the record and coherent legal argument, he appears to make three primary contentions. First, the court should not have awarded costs because the Estate failed to file a pleading, pay a filing fee, or request to join the lawsuit and thus was not a party to the action. Second, even if the court could award costs to the Estate for costs incurred in this action, it lacked authority to award costs incurred in the probate court. Lastly, the court erred when it denied Davor’s motion for sanctions because the Estate’s memorandum of costs and its opposition to the motion to tax costs were frivolous.[5] Each contention is meritless.

I. The Estate was properly joined as an indispensable party plaintiff and was not required to pay a filing fee to recover its costs.

While Davor’s arguments are unclear, he seems to assert that even though the court ordered joinder of the Estate, the Estate was never actually joined in that it did not file a pleading, make a motion to join the lawsuit, or pay a filing fee. From there, he argues that because the Estate was never actually joined as a party it could not be a prevailing party entitled to an award of costs. We disagree.

Davor cites no authority that an indispensable party plaintiff must file a pleading, pay a filing fee, or request to join a lawsuit before the court can order its joinder.[6] Code of Civil Procedure[7] section 389, subdivision (a) demands that the court join a party if it is “subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action” and in its absence, “complete relief cannot be accorded among those already parties.” Indeed, the issue of an indispensable party is so fundamental that the court does not have to wait for the parties to raise this issue; it may do so on its own motion. (See Bank of California v. Superior Court (1940) 16 Cal.2d 516, 522.) Here, once the Estate made a general appearance, the court was correct in considering the Estate a properly joined party plaintiff.

Davor cites to Hu v. Silgan Containers Corp. (1999) 70 Cal.App.4th 1261 and Davis v. Superior Court (1921) 184 Cal. 691 to argue that the Estate was required to pay a filing fee before it could join the lawsuit. Neither case supports his position.

In Hu v. Silgan Containers Corp., supra, 70 Cal.App.4th at page 1263, an employee sued her employer for discrimination, but failed to pay the filing fee and the court clerk voided her complaint. After the court retroactively reinstated the voided complaint, the employer moved for judgment on the pleadings on the grounds that the reinstated complaint was barred by the statute of limitations. (Id. at p. 1264.) The court granted the motion and was affirmed on appeal. (Id. at pp. 1263–1264.) Hu held that the employee’s failure to timely pay the court’s filing fee was a jurisdictional error and required dismissal. (Id. at p. 1269.) Further, Hu held that the employee was not entitled to an equitable tolling of the limitations period because she did not claim the court erred or that the employer engaged in delay or dilatory tactics that resulted in her nonpayment of fees. (Id. at p. 1271.) In Davis v. Superior Court, supra, 184 Cal. at page 692, just as in Hu, the plaintiff failed to pay a filing fee and her case was dismissed. The Supreme Court affirmed the dismissal, holding that plaintiff’s failure to pay the filing fee deprived the lower court of jurisdiction and required dismissal. (Davis, at p. 695.)

Hu and Davis are distinguishable in that each case involved only one plaintiff where neither paid a filing fee nor filed a complaint with the court. Hu and Davis held that, in those instances, the lower court lacked jurisdiction over the plaintiffs’ claims. Here, Ivan timely filed his complaint and paid the filing fee. Then, the Estate joined the lawsuit by filing its notice of representation, willingly submitting to the court’s jurisdiction and participating in the litigation. Neither Hu nor Davis stands for the proposition that the Estate was also required to pay a separate filing fee for the court to exercise jurisdiction over the controversy where the Estate’s interests were implicated by Ivan’s properly filed, and paid for, complaint.

Having determined that the Estate was properly joined as a party and not required to pay a separate filing fee or file any additional documentation to join the lawsuit, we turn to whether the court’s award of costs was proper. We review the award of costs for abuse of discretion. (Goodman v. Lozano (2010) 47 Cal.4th 1327, 1332.)

The court may allow a prevailing party to recover its costs. (§ 1032, subd. (a)(4).) If the costs listed in a memorandum of costs appear proper, this is prima facie evidence that the costs were necessarily incurred. (Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 858.) The burden then shifts to the party challenging costs to show that the charges were unreasonable. (Ibid.)

Here, the Estate was a prevailing party as the court awarded damages and determined that, along with Ivan, the Estate held an ownership interest in the property contrary to Davor’s claims that he owned the property outright. (See § 1032, subd. (a)(4).) In this action, the Estate claimed $34.05 in costs for exhibit copies and $1,158 for court reporter fees. Both of these costs are reasonable and expressly allowable under section 1033.5, subdivisions (a)(11) and (a)(13). Davor has made no argument as to why these costs are unreasonable and not allowable. The court did not abuse its discretion in awarding them.

II. The costs incurred by the Estate in the probate action were recoverable.

Davor asserts that the court should not have awarded costs that were incurred by the Estate in the probate action. Again, we disagree.

A court has discretion to award a prevailing party its costs even if the types of charges are not expressly listed in section 1033.5, so long as the costs are reasonable and necessary to conduct the litigation and not merely convenient or beneficial to its preparation. (City of Anaheim v. Department of Transportation (2005) 135 Cal.App.4th 526, 534.)

Section 1033.5, subdivision (a) does not list filing fees and the costs of publication that are paid in separate litigation as allowable costs, however, those costs incurred by the Estate in the probate case here were reasonable and necessary to conduct the litigation. The Estate only came into existence for the limited purpose of participating in this case. Moreover, the court in the civil action directed Ivan to open the Estate once it found Marija was an indispensable party. Without the Estate’s participation in this case, the court could not have afforded proper relief. (See § 389, subd. (b).) Accordingly, we find no abuse of discretion in the court’s decision to award costs incurred by the Estate in creating the probate case.

III. Davor’s request for sanctions was meritless.

Finally, Davor argues the trial court should have awarded him sanctions as requested in his motion because the Estate’s memorandum of costs and its opposition to his motion to tax costs were frivolous.

A court may order a party to pay the reasonable expenses incurred by another party “as a result of actions or tactics, made in bad faith, that are frivolous or solely intended to cause unnecessary delay.” (§ 128.5, subd. (a).) “ ‘Frivolous’ means totally and completely without merit or for the sole purpose of harassing an opposing party.” (§ 128.5, subd. (b)(2).)

Davor’s argument for sanctions was little more than an iteration of his previous arguments that the cost award was improper because the Estate was not joined as a party and costs incurred in the probate action were not recoverable here. As we have stated, the court’s decision to award the Estate its costs was an appropriate exercise of its discretion. Therefore, the Estate’s actions in seeking its costs was not frivolous.

DISPOSITION

The appeal from the judgment is dismissed as untimely; the order awarding the Estate its costs is affirmed. Ivan Bilaver, individually and as special administrator of the Estate of Marija Bilaver, is awarded costs on appeal.

NOT TO BE PUBLISHED.

SALTER, J.*

We concur:

EDMON, P. J.

EGERTON, J.

[1] To avoid confusion, we refer to members of the Bilaver family by their first names.

[2] Davor’s petition for review of this order was denied by the Supreme Court.

[3] The request was limited to Marija because Branko had passed away by the time the lawsuit was filed.

[4] Davor did not challenge Ivan’s costs.

[5] We note that Davor’s briefs contains several contentions suggesting the judgment is “void.” We do not address these arguments for two reasons. First, none of the arguments provide a legal basis on which to attack the judgment as void. Second, and as we stated in our prior order, Davor was to limit the scope of his briefs on appeal to issues related to the Estate’s costs because the appeal as to the judgment was untimely.

[6] We note that, while Davor objected that the Estate was not properly joined, he conceded that the Estate was an indispensable party.

[7] All further undesignated statutory references are to the Code of Civil Procedure.

* Judge of the Orange County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.