Wilson v. Board of Retirement of Los Angeles County Emp. Retirement Ass'n

• Court: California Court of Appeals
• Writing for the Court: HERNDON; FOX, P. J., and ASHBURN
• Citation: Wilson v. Board of Retirement of Los Angeles County Emp. Retirement Ass'n, 1 Cal.Rptr. 373, 176 Cal.App.2d 320 (Cal. App. 1959)
• Decision Date: 17 December 1959
• Parties: Harry Jerome WILSON, Plaintiff and Appellant, v. BOARD OF RETIREMENT OF LOS ANGELES COUNTY EMPLOYEES RETIREMENT ASSOCIATION et al., Defendants. County of Los Angeles, a Body Politic and Corporate, Respondent. Civ. 24117.

Page 373

1 Cal.Rptr. 373

176 Cal.App.2d 320

Harry Jerome WILSON, Plaintiff and Appellant, v. BOARD OF RETIREMENT OF LOS ANGELES COUNTY EMPLOYEES RETIREMENT ASSOCIATION et al., Defendants County of Los Angeles, a Body Politic and Corporate, Respondent.

Civ. 24117.

District Court of Appeal, Second District, Division 2, California.

Dec. 17, 1959.

John J. Guerin, Los Angeles, for appellant.

Harold W. Kennedy, County Counsel, Edward H. Gaylord, Deputy County Counsel, Los Angeles, for respondent.

Stanley Mosk, Atty. Gen., Manly D. Calof, Deputy Atty. Gen., amici curiae on behalf of respondent.

HERNDON, Justice.

Appellant here complains of an order denying his motion to strike a cost bill filed in the court below by respondent County of Los Angeles following our affirmance of a judgment in favor of the County from which appellant had taken an unsuccessful appeal. Wilson v. Board of Retirement, 167 Cal.App.2d 229, 334 P.2d 230. The remittitur provides that respondent recover its costs on appeal. The items here in controversy (the only costs claimed in said bill) cover the costs of preparing respondent's brief and its answer to appellant's petition for a hearing in the Supreme Court on the former appeal.

No question is raised concerning the reasonableness of the amounts claimed for the preparation of these briefs. Appellant's sole contention is that since said briefs were prepared in the office of the County Counsel by salaried employees of the County as a part of their regular duties, the costs of their preparation are not recoverable. The parties agree that the correct determination of the precise issue of law thus presented depends upon an interpretation of Rule 26 of the Rules on Appeal (50 Cal.2d 1, 23, 24, 25) and its application to the undisputed facts of this case. So far as here pertinent, said rule reads as follows: '(a) [Right to costs] Except as hereinafter provided, the prevailing party shall be entitled to his costs on appeal as an incident to the judgment on appeal. * * * (c) [Items recoverable as costs] The party to whom costs are awarded may recover only the following, when actually incurred: * * * (2) the reasonable cost of printing or reproduction of briefs by other process of duplication * * *.'

The foregoing rule was promulgated by the Judicial Council consistently with section 1034 of the Code of Civil Procedure, which provides in material part: 'In appeals from the superior and municipal courts, costs shall be awarded as provided in rules adopted by the Judicial Council. * * * The party entitled to costs, or to whom costs are awarded, may recover all amounts actually paid out by him in connection with said appeal, and the preparation of the record for the appeal. * * *'

The essence of appellant's argument is found in the following language of his opening brief: 'Appellant's point in this respect is that no costs were actually incurred because all of the services for which costs on appeal are claimed by respondent County--the cutting of the stencil, mimeographing, sorting, and binding--were performed by regular stenographic personnel in the office of the County Counsel as a part of their regular employment, for which they were paid a monthly salary. Neither piece work nor overtime is involved. Appellant submits that the said Rule 26(c), Rules on Appeal, does not contemplate reimbursement to the employer of a part of a regularly employed salaried stenographer's salary as 'costs on appeal."

The parties agree that the right to recover costs exists solely by virtue of statute; that an award of costs can be justified only if permitted by some statutory provisions and that the measure of the statute is the measure of the right. In re Estate of Johnson, 198 Cal. 469, 471, 245 P. 1089. Nor is there any argument concerning the correctness of the following principles enunciated in Moss v. Underwriters' Report, Inc., 12 Cal.2d 266, 274, 83 P.2d 503, 507: 'The term 'costs', it has been said, means 'those fees and charges which are required by law to be paid to the courts, or some of their officers, or the amount of which is expressly fixed by law'. Blair v. Brownstone Oil & Refining Co., 20 Cal.App. 316, 128 P. 1022. The words 'necessary disbursements' should be similarly construed. Certainly the statute does not contemplate that a defendant must pay all of the successful plaintiff's expenses in connection with the litigation. The code authorizes the allowance of costs only, and the inclusion of 'necessary disbursements' in the section requiring one who claims costs to file a memorandum of them does not authorize a litigant to collect from his unsuccessful adversary the amount of any expense which is not allowable as an item of 'costs'. Bond v. United Railroads, 20 Cal.App. 124, 128 P. 786.'

It is clear from the applicable statutory provisions, and the decisions construing them, that the right of a successful litigant to recover from his adversary the amount of any given item of costs depends upon the fulfillment of these four essential conditions: (1) There must be a valid judgment awarding costs to the party claiming them; (2) the item must be one allowed by rule or by statute; (3) the amount claimed must have been actually incurred; (4) the amount claimed must be reasonable. Manifestly, conditions (1), (2) and (4) are fulfilled in the instant case. Respondent was awarded its costs; the items in question are allowable items of costs under the provisions of the rule, and it is not denied that the amount claimed is reasonable. Thus the issue narrows to the question whether the County 'actually incurred' the costs of these briefs within the meaning of the applicable rule.

We hold that the determinative question must be answered in the affirmative. To say that the County did not actually incur and pay the expenses involved in the...